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 change of circumstances.”

The family court found that Burl failed to meet the requisite burden to allow for the modification noting the health conditions of both aging parties, and Diane’s current inability (per disability) to support herself. Burl’s Title 38 disability benefits were included when calculating the spousal maintenance award.

Military Disability Payments and Alimony in Arizona

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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.