John J. Lavoie v. Shelly Lavoie
-- June 14, 2010
MEMORANDUM OF DECISION
After hearing and review of the partie's respective briefs, the Court comes to the conclusion that Connecticut does not have any statutory or case law development that would allow an invasion by one spouse into a veteran's disability benefits that may be due and owing to a disabled military personal. The main issue becomes whether or not a spouse has any claim or invasionary powers or distribution rights to a veteran's disability benefits that are validly payable to a disabled veteran. The parties spent a great deal of time analyzing the case of Mansell v. Mansell, 490 U.S. 581 (1989).
There appears to be a series of cases from outside of Connecticut that allow some form of invasion into such disability benefits, but Connecticut does not appear to have such case law development. The plaintiff's position is that the Mansell case does not allow disability benefits to be considered property and/or income that is assignable, attachable or in any way payable to a spouse or former spouse under current federal provisions or any State of Connecticut law.
The United States Supreme Court's decision in Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104, L.Ed.2d 675 (1989) is relevant to this issue. In Mansell, the Court held that “the Former Spouses' Protection Act, [10 U.S.C § 1408], does not grant state courts the power to treat as property upon divorce military retirement pay that has been waived to receive veterans' disability benefits.” (Emphasis added.) Id., 594-95. Connecticut courts have not decided whether the Mansell holding applies broadly to all veterans' disability benefits or whether it only applies to those veterans' disability received in lieu of waived retirement pay. Other states are split. As the North Dakota Appellate Court explained: “It is true that military retirement pay that is waived to receive veterans' disability benefits is not marital property to be divided in equitable distributions ․ Some state courts have interpreted Mansell to preclude treating any veterans' disability benefits as property divisible upon divorce. E.g., Wallace v. Fuller, 832 S.W.2d 714 (Tex.Ct.App.1992); but see Riley v. Riley, 82 Md.App. 400, 571 A.2d 1261 (Md.Ct.App.1990) (distinguishing Mansell because the disability payments at issue were not in lieu of retirement pay). However, even those state courts which have recognized that Mansell precludes the division of veterans' disability benefits in property distributions have concluded ‘that when making property distributions or awarding alimony the trial court may consider military disability retirement pay as future income ․ relevant to a determination of the parties' ultimate economic circumstances.’ In re Marriage of Kraft, 119 Wash.2d 438, 832 P.2d 871, 875 (Wash.1992); see also Olson v. Olson, 445 N.W.2d 1, 15 (N.D.1989) ( VandeWalle, J., concurring) (‘Thus I do not read the majority opinion as establishing so rigid a rule that Social Security benefits must be entirely ignored in reaching an equitable division of property.’).
“This narrow interpretation of the Mansell holding is entirely justified considering the standard the United States Supreme Court uses when reviewing the issue of whether Congressional actions preempt state domestic relations law ․ Even in Mansell, the Court expressed its reluctance to recognize federal preemption of state domestic relations law: ‘Because domestic relations are preeminently matters of state law, we have consistently recognized that Congress, when it passes general legislation, rarely intends to displace state authority in this area ․ Thus we have held that we will not find pre-emption absent evidence that it is positively required by direct enactment.’ ․ Absent express language preempting state law in this area, the Supreme Court will not find implied preemption unless it is positively required by direct enactment or unless the absence of preemption does major damage to clear and substantial federal interests ․ Thus, we need not give a broader preemptive effect to the Mansell holding than the Mansell court itself recognized in the precise and limited language of a particular federal statute.” (Citations omitted; internal quotation marks omitted.) Vitko v. Vitko, 524 N.W.2d 102 (N.D.1994). Vitko however allows the Court to consider disability benefits when exercising a final overview of the “financial circumstances of each party to the divorce.” Page 104.
Court order assignment for child support has been allowed from disability benefits Rose v. Rose, 481 U.S. 619 (1987). The issue remains as to how much, if any, of disability benefits can be applied to spousal support. The anti-attachment clause of Section 38 USCS 5301 should be used more as a shield than a sword when deciding whether veterans disability benefits should be factored into spousal property settlements.
Despite this split, and as indicated in Vitko, most state courts have held that veterans disability benefits may be considered in awarding spousal support. As the Oregon Court of Appeals explained: “Although Oregon courts have not expressly addressed whether the Court's holding in Mansell extends to bar a court from considering VA disability benefits received in lieu of military retirement benefits for purposes of awarding spousal support, nearly every state court that has addressed that question has concluded that Mansell affects property division, not spousal support. Hence, those courts have concluded that federal law does not prevent a court from considering a party's VA disability benefits as a source of income for purposes of awarding spousal support. See, e.g., Murphy v. Murphy, 302 Ark. 157, 159, 787 S.W.2d 684, 685 (1990) (stating that nothing in federal law relieved former husband, whose income consisted of VA disability payments, from paying spousal support); Riley v. Riley, 82 Md.App. 400, 410, 571 A.2d 1261, 1266 (1990) (VA benefits may be considered as resource for purposes of setting alimony award); Steiner v. Steiner, 788 So.2d 771, 778 (Miss.2001) (same); Holmes v. Holmes, 7 Va.App. 472, 485, 375 S.E.2d 387, 395 (1988) (same); Weberg v. Weberg, 158 Wis.2d 540, 544-45, 463 N.W.2d 382, 384 (Ct.App.1990) (same); see also Clauson v. Clauson, 831 P.2d 1257, 1263 n 9 (Alaska 1992) (stating in dicta that a ‘state court is clearly free to consider post-divorce disability income and order a disabled veteran to pay spousal support even where disability benefits will be used to make such payments'); Davis v. Davis, 777 S.W.2d 230, 232 (Ky.1989) (noting that, although VA disability benefits were not divisible as property, courts could resolve an inequitable property division with a spousal support award); but see Ex parte Billeck, 777 So.2d 105, 109 (Ala.2000) (holding that federal law precludes courts from considering VA disability payments in awarding alimony).” In Re Morales, 230 Or.App. 132, 214 P.3d 81 (2009).
It would appear that Connecticut has not decided the issue of whether veterans' disability benefits may be included in marital property settlements and/or spousal support orders. Other state courts are split on the issue, but most hold that such benefits should not be treated as property. Despite this split, most state courts have concluded that veterans' disability benefits may be considered in awarding spousal support. This Court does not deviate from these lines. Therefore, Mr. Lavoie's veteran disability benefits may be considered in any final dissolution judgment, but are not subject to present attachment nor temporary orders for any spousal support pending final judgment of dissolution.
BY ORDER OF THE COURT,
Roche, Vincent E., J.