Military Disability Benefits and Arizona Alimony
Burl Swain seeks special action relief from a family court order entered August 6, 2013, regarding the inclusion of his Title 38 Veterans Administration disability benefits in the calculation and award of spousal maintenance to be awarded to Diane Swain (Wife).
Burl and Diane Swain received their dissolution decree including the awarding of Diane with spousal maintenance from Burl in the amount of $1,500 per month for an unspecified amount of time. In November of 2012, Burl filed for a modification of spousal maintenance citing his deteriorating health and unemployment as “substantial and continuing
Military Disability Payments and Alimony in Arizona
According to Arizona Statute, disability benefits awarded to veterans for service-connected disabilities (Title 38) are protected from consideration in the distribution of property in divorce proceedings or in consideration of spousal maintenance awards in divorce proceedings. Under the plain language of the law, the trial court should not have considered Burl’s Title 38 benefits in the calculations for spousal maintenance.
Diane argues that the inclusion of Burl’s Title 38 benefits in the calculations for spousal maintenance does not necessarily mean that the Title 38 benefits were actually included in the spousal maintenance award. After review of the record and consideration of the potential income from which Burl could potentially provide spousal maintenance, the Arizona Court of Appeals determined the family court did include Burl’s Title 38 benefits in consideration of the spousal maintenance award in this case in contradiction to the mandatory language of Arizona Revised Statute 25-530 which prohibits the consideration of the portion of the spouse’s income derived from Title 38 benefits when awarding spousal maintenance.
The Arizona Court of Appeals found the family court should not have considered the Title 38 service-related disability benefits received by Burl as part of his incoming pertaining to the calculations or award of spousal maintenance. As a result, The Arizona Court of Appeals vacated the minute entry order that dated August 6, 2013, and remanded the case back to the family court for additional proceedings consistent with the Arizona Court of Appeals decision.
Chris Hildebrand wrote this article to ensure everyone has access to information about family law in Arizona. Chris is a divorce and family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and, quite frankly, actually caring about what his clients are going through in a divorce or family law case. In short, his practice is defined by the success of his clients. He also manages all of the other attorneys at his firm to make sure the outcomes in their clients’ cases are successful as well.