The VA just awarded you 100% disability – Can you stop working and reduce your support obligations? The short answer is it “depends.” However, you should know how your VA disability compensation may affect your child support and alimony.
Even though it is tax free, VA disability compensation is considered income in New Jersey for purposes of child support and alimony. Your VA disability income will be used in the calculation of child support under the New Jersey Child Support Guidelines. Similarly, the courts will consider VA disability compensation as income for purposes of alimony.
So if the VA awarded you 100% disability, can you stop working and reduce/eliminate your child support and alimony obligation? Generally speaking, the law in New Jersey is that one cannot choose to be purposefully under- or un-employed to the detriment of their financial obligations to their former spouse or children. Here, it is important to understand that a 100% disability rating is not necessarily the same as being 100% disabled and, therefore, unable to work.
A combined disability rating of 100% does not necessarily mean that a veteran is unable to maintain gainful employment. However, depending on the extent and type of a veteran’s disabilities, he or she could be limited in the type or amount of employment they can obtain. There is no bar to a 100% combined disability rated veteran receiving VA disability compensation and working full-time. Thus, it is unlikely a court would allow a veteran to stop working entirely and reduce his/her support obligations in this scenario.
Upon special request, a veteran may also earn a TDIU (Total Disability Individual Un-employability) if he or she has one or two disabilities that are especially severe and can demonstrate they are unable to find gainful employment as a result of their disabilities. Even so, a TDIU rating is not a bar to all employment – the veteran can work in marginal employment and earn a certain amount annually. A court could require a veteran to work some part-time marginal employment before considering reducing support.
The “gold-standard” for disability and un-employability in New Jersey courts is Social Security Disability. If a veteran believes that his or her disability is severe enough that it affects his or her ability to work then he or she should apply for Social Security disability benefits. It is difficult to argue that a person designated by Social Security as disabled can work. Plus, the extra income from the Social Security Administration can help support children and pay expenses.
Thus, if a veteran could show a court that he or she was under- or un-employed due to a disability, they could not obtain gainful employment and the income they receive from disability payments are now substantially less than what they were earning prior to their disability then it is possible their support obligations could be reduced.
If you or your spouse/ex-spouse is a member of the military or a veteran and wants to adjust child support or alimony because of a VA disability rating, you should be represented by an attorney who is familiar with military issues and family law. Contact Kevin J. Murphy, Esq., a life-long military dependent, former active duty service member, Afghanistan and Iraq veteran and a currently serving reservist at 856.428.8334 or firstname.lastname@example.org for a consultation.