VA Disability and Divorce: What Florida Courts Can and Can't Touch

By Joshua C. Miller, Esq. · Green Bench Law, PLLC · Informational only — not legal advice

No issue in military and veteran divorce generates more confusion — or more bad internet advice — than VA disability compensation. Veterans hear "they can't touch my disability" and assume it's invisible in divorce. Former spouses hear a share of retired pay was awarded and assume the check is safe. Both are partly right and partly wrong, and the difference is worth real money.

Rule 1: VA disability is not divisible property

Under the U.S. Supreme Court's decision in Mansell v. Mansell, state courts cannot divide VA disability compensation as marital property. A Florida judge cannot award a former spouse a percentage of a veteran's disability check the way they can divide retired pay. Federal law preempts state equitable distribution on this point, full stop.

Rule 2: VA disability absolutely counts as income for support

Here's where veterans often get surprised. While disability compensation can't be divided, it is income when calculating child support and alimony. The Supreme Court confirmed in Rose v. Rose that state courts may consider VA benefits in setting support obligations, and Florida's child support statute counts disability benefits in gross income. A veteran whose entire income is VA compensation can still owe — and be made to pay — child support and alimony from it.

The waiver problem: when disability eats the pension

Many retirees waive a portion of retired pay dollar-for-dollar to receive VA disability instead (disability is tax-free; retired pay isn't). The catch in divorce: only disposable retired pay is divisible — and waived amounts come out before the former spouse's percentage is applied. So when a retiree increases a disability rating after the divorce and waives more retired pay, the former spouse's check shrinks.

Can the court fix that? Largely, no. In Howell v. Howell (2017), the Supreme Court held that state courts cannot order a retiree to indemnify a former spouse for the reduction caused by a post-divorce waiver. The practical lesson runs in both directions:

• For former spouses: negotiate protection up front — alimony structures, offsets in other assets, or life insurance — rather than relying on the pension percentage alone. After the decree, your options narrow dramatically.
• For veterans: understand that waiver decisions still have consequences. Courts can consider overall income and circumstances in support proceedings, and concurrent receipt programs (CRDP/CRSC) change the math for many retirees.

CRDP and CRSC, briefly

Concurrent Retirement and Disability Pay (CRDP) restores retired pay for qualifying retirees rated 50% or higher — and restored retired pay is generally divisible. Combat-Related Special Compensation (CRSC) is a separate, non-divisible payment. Which program a retiree elects affects what a former spouse actually receives, which is why discovery in these cases should always include the retiree account statement, the VA rating decision, and the CRDP/CRSC election.

The bottom line

VA disability sits at the intersection of three bodies of law — federal preemption, Florida equitable distribution, and Florida support law — and the answer changes depending on which question you're asking. "Can it be divided?" No. "Does it count?" Yes. "Can the order protect me from future waivers?" Only if it's drafted with that risk in mind before the final judgment.