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VETERANS ADMINISTRATION DISABILITY INCOME
2000 National Legal Research Group, Inc.

NEBRASKA: Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999).

The wife claimed that the husband was in arrears in dividing his Veterans Administration disability income with her. The district court held that the previous order dividing the VA disability pension was void.


The couple was married for almost twenty-one years and had three children. The divorce decree mandated that the husband pay the wife one-half of his Veterans Administration disability income as long as he received such income. If the income were to decrease the husband was ordered to furnish a copy of a VA check showing this decrease so that an adjustment could be made to the amount to be paid to the wife. At the time of the divorce, the husband's VA disability income was $433 monthly, and so the wife was to receive $216.50.

The husband filed a motion for a new trial, asserting that the trial court had erred in awarding the disability income. The trial court overruled this motion and issued orders to withhold the amount from the husband's regular income and transmit it to the wife.

After a few years, the wife filed a motion to show cause why the husband should not be held in contempt for refusing to comply with the provision in the dissolution decree directing the husband to pay one-half of his VA disability benefits to the wife. The husband answered with a responsive pleading asserting that the decree provision ordering the split of the VA income was preempted by federal law and unenforceable. The wife responded on her part by filing a petition of accounting, alleging that the husband was about $7,000 in arrears on his obligation. She also contended that the husband was barred by res judicata from attacking the prior proceedings.

The supreme court first noted that the husband was not barred by res judicata since res judicata does not preclude a second suit between the same parties if the forum in which the first action was brought did not have jurisdiction to adjudicate the action. If the court lacks subject-matter jurisdiction, then judgments entered are void and subject to collateral attack.

The supreme court then addressed the problem of whether the trial court had had subject-matter jurisdiction in the matter of the VA disability income. The court found that military retirement benefits cannot constitute divisible marital property except to the extent permitted by the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. 1401 et seq. Disability benefits are specifically not divisible marital property under the USFSPA. Therefore, federal law precluded the lower court from exercising subject-matter jurisdiction over the VA disability benefits. The portion of the decree purporting to divide the husband's VA disability income was void for want of jurisdiction.

The supreme court held that a judgment can be vacated in part and upheld in part when a void portion of that judgment is severable from the valid portion, that is, if the valid and the void portions are not inextricably intertwined with each other. In this case, the balance of the divorce decree was held to be valid and severable from that portion that was void for dividing the VA disability income. Thus, the district court did not err in voiding the division of the VA disability income without vacating the balance of the divorce decree.

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