Minor Children of parent under guardianship and conservatorship

[Lacy Fuehrer]

Jurisdiction

South Dakota

This may get a little long.....

My father of my 2 children (ages 13 and 14) has recently given his sister guardianship and conservatorship of him. According to our current order, he has visitations, but has not exercised them in over a year. From the paperwork I have received, it states that he has TBI, PTSD with an alcohol dependency. His sister has stated that he has dementia. He is currently residing in an assisted living facility.

He is ordered to pay child support, he does receive a monthly check (almost 5k) from the VA. Child support is not getting paid right now. His sister (high conflict) texted me and stated she is filing paperwork to have his rights terminated. I personally do not want to go that route mainly because they do get their insurance through the military and they would lose that if rights were terminated.

I am also curious how everything will work with his estate. She has already sold all of his vehicles, and home (She only sold for $1)

Anyone gone through anything like this? Looking to see what options we should be looking into. I looked into social security benefits for the girls, but he didn't get approved to be on benefits because of his monthly VA check.

 

[army judge]

Anyone gone through anything like this?

Are you, or were you, and the person you call the father of the 13 and 14 year olds LEGALLY married?

When a veteran receives disability benefits through the United States Department of Veterans Affairs or via court order, the payments arrive in the form of monthly income.

But can VA benefits be subject to garnishment like other types of income?

There is a lot of confusion over whether veteran's disability benefits can be garnished. When income is subject to garnishment, a third party can deduct a portion of this income from the recipient's bank account or paycheck. This garnishment would cover payments such as credit and medical bills, child support and alimony, federal student loans, and past-due taxes.

VA disability benefits typically cannot be garnished for these types of payments. However, there are exceptions to the rule. Military disability benefits may be garnished if a veteran is receiving disability compensation in lieu of retirement pay. The portion that a veteran takes in lieu of military retired pay may be garnished. Veterans with child support orders or alimony obligations may also have their payments garnished by the amount of child support or alimony due.

VA Disability in Lieu of Military Retirement
If a veteran accepted VA disability compensation in lieu of military retirement benefits for their military service, then the amount taken in lieu of the retirement pay is subject to garnishment. Since military retirement pay is subject to garnishment, the federal law considers that replacement by VA disability to also be subject as well.

However, if a veteran is rated at 50% disability rating or higher and receiving full retirement and full disability, the garnishments can only come out of the military retirement pay portion.

If the VA disability compensation is the only source for the veteran's income, credit debts, medical debts, student loans, and taxes cannot be garnished under any circumstances. So, the VA will consider whether the veteran has other sources of income, as well as whether a veteran has special needs that would require additional income.

It's also important to note that any award a veteran receives cannot be considered for spousal maintenance in divorce proceedings and is protected. Basically, the VA will not garnish the disability compensation of a veteran. The exception is when a former spouse and dependent children apply for apportionment for support.

100% VA Disability, Alimony & Child Support Obligations
According to a U.S. Supreme Court case, Rose v. Rose, 481 U.S. 619 (1987), state courts can enforce a child financial support order against a disabled veteran even if the only funds available to the veteran are the veteran's disability pay. This ruling determined that the VA intended disability benefits to be used to support the family when the veteran could no longer due to their service-connected disabilities. Therefore, in Rose v. Rose, the court deemed that child support payments and alimony could also be paid from VA disability compensation.

While disability compensation benefits can never be considered a marital asset or included in property division between divorcing spouses, former spouses entitled to state-ordered alimony may receive an amount based on the combination of the veteran's income including his VA disability benefits.

Garnishment to a former spouse would be denied if:

1 = The garnishment was to cause undue financial hardship

2 = If the veteran's former spouse or child has not filed for apportionment

3 = If the former spouse is living with or married to another person

4 = If the former spouse was found by state court to have been guilty of infidelity

What is VA Apportionment?
Apportionment is when the VA divides up the veteran's disability compensation amount among those who are entitled to a share of it for support purposes. The former spouse must file for apportionment from the VA for themselves (if alimony is ordered) and for their dependent children. This is available because of the uniformed services former spouses' protection act. The VA approves this filing pending a few key details.

The VA requires that the applicant and veteran submit financial statements while the spouse is applying for apportionment. The veteran's financial statement shows that the apportionment will not cause undue hardship before it is awarded. The apportionment checks then are paid directly from the VA to the former spouse and/or guardian of the dependent children, bypassing the veteran. The veteran's check is reduced by the amount of the apportionment.

The party receiving the apportionment must meet the above guidelines or they will be required to give up their apportionment and even pay it back if they were, for example, living with another person but still receiving an alimony apportionment check. The veteran can also file for a hardship reduction in apportionment if they are unable to meet their basic financial needs at any time.

Can 100% VA Disability Be Garnished for Child Support? - Hill & Ponton, P.A.
...

Can The VA Garnish My Benefits?
The short answer is — yes. The VA can garnish your benefits according to Title 38, which states that you must be able to support your dependents. On the flip side, your compensation cannot be garnished if you choose to waive a portion of your military retirement pay.

Let's say you choose to waive 25% of your military retirement to receive the non-taxed compensation. The non-taxed compensation that you received in place of your retirement pay can be garnished. The garnishment can also be used to meet alimony and child support. More on alimony and child support funds will be later discussed regarding apportionment. The remainder of your disability, however, will NOT be garnished.

VA Disability Benefits and Child Support: Can Benefits Be Applied for Child Support? - VA Claims Insider
...

I suggest you speak to a couple of family law attorneys in the county in which you reside.

Yours is about to become a very complex situation.

 

[Lacy Fuehrer]

We were married, but have been divorced now for 12 years. I understand I probably won't get any financial support from him at this point. My biggest concern is if his sister is able to terminate their dad's rights. She said she filed the paperwork already. His income is all disability now, he is taking his retirement in the form of disability now. He is also 100% disabled.

Are you, or were you, and the person you call the father of the 13 and 14 year olds LEGALLY married?

When a veteran receives disability benefits through the United States Department of Veterans Affairs or via court order, the payments arrive in the form of monthly income.

But can VA benefits be subject to garnishment like other types of income?

There is a lot of confusion over whether veteran's disability benefits can be garnished. When income is subject to garnishment, a third party can deduct a portion of this income from the recipient's bank account or paycheck. This garnishment would cover payments such as credit and medical bills, child support and alimony, federal student loans, and past-due taxes.

VA disability benefits typically cannot be garnished for these types of payments. However, there are exceptions to the rule. Military disability benefits may be garnished if a veteran is receiving disability compensation in lieu of retirement pay. The portion that a veteran takes in lieu of military retired pay may be garnished. Veterans with child support orders or alimony obligations may also have their payments garnished by the amount of child support or alimony due.

VA Disability in Lieu of Military Retirement
If a veteran accepted VA disability compensation in lieu of military retirement benefits for their military service, then the amount taken in lieu of the retirement pay is subject to garnishment. Since military retirement pay is subject to garnishment, the federal law considers that replacement by VA disability to also be subject as well.

However, if a veteran is rated at 50% disability rating or higher and receiving full retirement and full disability, the garnishments can only come out of the military retirement pay portion.

If the VA disability compensation is the only source for the veteran's income, credit debts, medical debts, student loans, and taxes cannot be garnished under any circumstances. So, the VA will consider whether the veteran has other sources of income, as well as whether a veteran has special needs that would require additional income.

It's also important to note that any award a veteran receives cannot be considered for spousal maintenance in divorce proceedings and is protected. Basically, the VA will not garnish the disability compensation of a veteran. The exception is when a former spouse and dependent children apply for apportionment for support.

100% VA Disability, Alimony & Child Support Obligations
According to a U.S. Supreme Court case, Rose v. Rose, 481 U.S. 619 (1987), state courts can enforce a child financial support order against a disabled veteran even if the only funds available to the veteran are the veteran's disability pay. This ruling determined that the VA intended disability benefits to be used to support the family when the veteran could no longer due to their service-connected disabilities. Therefore, in Rose v. Rose, the court deemed that child support payments and alimony could also be paid from VA disability compensation.

While disability compensation benefits can never be considered a marital asset or included in property division between divorcing spouses, former spouses entitled to state-ordered alimony may receive an amount based on the combination of the veteran's income including his VA disability benefits.

Garnishment to a former spouse would be denied if:

1 = The garnishment was to cause undue financial hardship

2 = If the veteran's former spouse or child has not filed for apportionment

3 = If the former spouse is living with or married to another person

4 = If the former spouse was found by state court to have been guilty of infidelity

What is VA Apportionment?
Apportionment is when the VA divides up the veteran's disability compensation amount among those who are entitled to a share of it for support purposes. The former spouse must file for apportionment from the VA for themselves (if alimony is ordered) and for their dependent children. This is available because of the uniformed services former spouses' protection act. The VA approves this filing pending a few key details.

The VA requires that the applicant and veteran submit financial statements while the spouse is applying for apportionment. The veteran's financial statement shows that the apportionment will not cause undue hardship before it is awarded. The apportionment checks then are paid directly from the VA to the former spouse and/or guardian of the dependent children, bypassing the veteran. The veteran's check is reduced by the amount of the apportionment.

The party receiving the apportionment must meet the above guidelines or they will be required to give up their apportionment and even pay it back if they were, for example, living with another person but still receiving an alimony apportionment check. The veteran can also file for a hardship reduction in apportionment if they are unable to meet their basic financial needs at any time.

Can 100% VA Disability Be Garnished for Child Support? - Hill & Ponton, P.A.
...

Can The VA Garnish My Benefits?
The short answer is — yes. The VA can garnish your benefits according to Title 38, which states that you must be able to support your dependents. On the flip side, your compensation cannot be garnished if you choose to waive a portion of your military retirement pay.

Let's say you choose to waive 25% of your military retirement to receive the non-taxed compensation. The non-taxed compensation that you received in place of your retirement pay can be garnished. The garnishment can also be used to meet alimony and child support. More on alimony and child support funds will be later discussed regarding apportionment. The remainder of your disability, however, will NOT be garnished.

VA Disability Benefits and Child Support: Can Benefits Be Applied for Child Support? - VA Claims Insider
...

I suggest you speak to a couple of family law attorneys in the county in which you reside.

Yours is about to become a very complex situation.

 

[zddoodah]

My father of my 2 children (ages 13 and 14) has recently given his sister guardianship and conservatorship of him.

One cannot give guardianship/conservatorship of oneself to another. Only a court can order a guardianship/conservatorship. Can you explain exactly what it is your children's father did?

From the paperwork I have received, it states that he has TBI, PTSD with an alcohol dependency.

What sort of paperwork? Is there a court order that he is under a guardianship/conservatorship?

His sister (high conflict) texted me and stated she is filing paperwork to have his rights terminated.

There's no such thing. And, even if his parental rights were terminated, it would not relieve him of his support obligation.

My biggest concern is if his sister is able to terminate their dad's rights. She said she filed the paperwork already.

Any "paperwork" to terminate parental rights would necessarily be served on you. I assume you haven't received copies of any of this alleged paperwork.

I am also curious how everything will work with his estate.

Impossible to predict while he is still alive.

Looking to see what options we should be looking into.

I suggest that you confer with a local family law attorney. If he's receiving benefits of $5k per month, you ought to be able to garnish those benefits for child support.

P.S. I strongly suggest you edit your screen name so that it's not your real name (and, while you're at it, check the privacy settings on your Facebook account).

 

[Lacy Fuehrer]

Thank you so much for your reply. I received the court documents that gave guardianship and conservatorship to his sister. In the papers, it states that he isn't mentally able to make correct decisions. I have not been served any paperwork regarding termination of rights. And can you advise on how to change my name on here? I looked and don't see how. And as for the child support, they are saying he needs his funds to pay for the assisted living facility he is in.

One cannot give guardianship/conservatorship of oneself to another. Only a court can order a guardianship/conservatorship. Can you explain exactly what it is your children's father did?



What sort of paperwork? Is there a court order that he is under a guardianship/conservatorship?



There's no such thing. And, even if his parental rights were terminated, it would not relieve him of his support obligation.



Any "paperwork" to terminate parental rights would necessarily be served on you. I assume you haven't received copies of any of this alleged paperwork.



Impossible to predict while he is still alive.



I suggest that you confer with a local family law attorney. If he's receiving benefits of $5k per month, you ought to be able to garnish those benefits for child support.

P.S. I strongly suggest you edit your screen name so that it's not your real name (and, while you're at it, check the privacy settings on your Facebook account).

 

[zddoodah]

can you advise on how to change my name on here?

Not sure. @adjusterjack @cbg ???

 

[PayrollHRGuy]

Near the top is a button that says tickets. Put in a technical support ticket there.

 

[Lacy Fuehrer]

Near the top is a button that says tickets. Put in a technical support ticket there.

Thank you. Ticket submitted.

 

[leslie82]

One cannot give guardianship/conservatorship of oneself to another. Only a court can order a guardianship/conservatorship. Can you explain exactly what it is your children's father did?



What sort of paperwork? Is there a court order that he is under a guardianship/conservatorship?



There's no such thing. And, even if his parental rights were terminated, it would not relieve him of his support obligation.



Any "paperwork" to terminate parental rights would necessarily be served on you. I assume you haven't received copies of any of this alleged paperwork.



Impossible to predict while he is still alive.



I suggest that you confer with a local family law attorney. If he's receiving benefits of $5k per month, you ought to be able to garnish those benefits for child support.

P.S. I strongly suggest you edit your screen name so that it's not your real name (and, while you're at it, check the privacy settings on your Facebook account).

In many states, once parental rights are terminated it does terminate their parental obligations such as child support from that point on. If they are in arrears, they still owe that. I have seen a few states that don't absolve a parent of child support after terminating parental rights but most do.

South Dakota is one of those states. I know a friend who actually got her kid's dad's rights terminated and him removed from the birth certificate. It wasn't easy and it took a lawyer and a lot of money and time.

 

[cbg]

I'm sorry - I didn't get the alert that I had been tagged. Is the situation resolved?