Friday, May 29, 2015

Kansas Child Support Guidelines - Under consideration, using disability to determine child support payments

Please forward to all vets on your email list so they can respond  if they are affected by child support.

I have been given a copy of the proposed change to the Kansas Child Support Guidelines that would specifically allow VA Disability Payments to be considered income.  It is my opinion is that position would be contrary to cases decided by the State of Kansas and the United States Supreme Court.

             In In Re Pierce, No 80,115, Syl. Par. 3,  the Kansas Appellate Court held, “A state trial court has no authority to order a retired military person to change his or her disability pay back to retirement, and it it cannot order disability benefits to be paid to former spouse (emphasis added).    In Pierce , the Court was only dealing with a property settlement and spousal maintenance issue.  The  spouse motioned the Court to order the veteran in that case to revoke his choice to receive VA disability payments in lieu of a portion of his retirement or in the alternative pay her from the funds he was receiving .  The Court properly denied the motion and former spouse appealed.

             In  arriving at the Court’s decision it carefully scrutinized the U.S. Supreme Court case,  McCarty v. McCarty, 453 U.S. 210, 69 L.Ed. 589, 101 S.Ct, 2728 (1981).  109 S. Ct. 2023. In McCarty, the U.S. Supreme Court precluded from distributing any portion of a military person of a military spouse.  In response to McCarty, the United State legislature passed 10 U.S.C. Sec. 1408.  This law enacted by Congress, specifically excluded from the definition of “disposable” retired pay  that are deducted from the retired member’s pay.  The question of disposable retired pay was answered by the Supreme Court in Mansell V. Mansell, 490 U.S. 581, 104 L.Ed.2d 675, 109 S.Ct.  In Mansell, the husband was receiving 50% VA disability and 50% Military Service Retirement.  Mansell had at the time of the divorce agreed to give the spouse  50% of the total.  After the divorce, Mansell motioned the Court to remove the requirement that he share his disability payment with his wife.  Mansell appealed to the United States Supreme Court which construed the USFSPA did not grant state court the power to treat veterans disability as marital property.

             The Pierce court actually states “Mansell makes it perfectly clear that the state trial courts have no jurisdiction over disability benefits received by a veteran.   The trial court in this case cannot order to Douglas (Pierce) to change  the payments back to retirement benefits, and it cannot order him to pay his disability benefits to Priscilla.  The Pierce court concluded that the trial court cannot do indirectly what it cannot do directly.

            The law is overwhelming that Kansas District Courts have no jurisdiction of disability payments received by a veteran.   If a trial Court cannot include VA disability payments in deciding spousal maintenance, support of the wife, which is analogous to support of the child.  The Federal law is clear.  Veterans benefits are to be treated differently than other benefits paid.  VA benefits are not an insurance policy paid for by the employer or  the employee,  The VA is not Social Security that is paid into so if you become disable  they will payout a partial salary to the payee.   Receiving 100% VA disability is most analogous to someone receiving SSI.   An agency of the Federal Government has found the veteran unable to work, so he is paid 100% VA disability.  This payment does not stem from money paid in as required for SSD, or as a private insurance company to pay you your lost wages, it stems from  injury/disease incurred serving the United States of America.  As SSI is specifically excluded from being included as income for child support so should VA disability payments.  I thank you in advance for your thoughtful consideration.  I am attaching the Court Cases for your review.


The Kansas Supreme Court’s Child Support Guidelines Advisory Committee is seeking public comment on the proposed Kansas Child Support Guidelines.  Information about the public comment period has been posted on the Kansas Judicial Branch website under “What’s New.”   Your feedback is encouraged.

A news release announcing the public comment period was sent to media statewide and we hope it will be widely reported.  We also asked all Kansas judges, the Kansas Payment Center, the Kansas Bar Association, and the Kansas Department for Children and Families to help publicize the public comment period.  You should also feel free to share this information with others.  Specifically, if you have the ability to send an email message to payors or payees, please send them the link below.  From the Kansas Judicial Branch home page they can get to the proposed guidelines, the press release regarding the public comment period, the survey, and more.

The survey is open until 8 a.m. Monday, June 22, 2015.   The Child Support Guidelines Advisory Committee will meet in June and July to review feedback from the public comment period  and to make final recommendations to the Kansas Supreme Court.  Revisions to the Child Support Guidelines are expected to be effective January 1, 2016.

Please let me know if you have any questions.

Mark Gleeson
Director of Trial Court Programs
Office of Judicial Administration
Kansas Supreme Court
301 SW 10th Ave
Topeka, Kansas  66612
785.291.3224  Phone

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