VA apportionment is a tool that can help families of veterans get the aid they are entitled to get.
If a veteran becomes disabled in the course of their military service, he or she may be entitled to disability compensation. Some of the compensation amount is based on how many people are financially dependent on them. But what happens if a veteran stops providing the financial support they are legally required to provide?
Read on to learn more about apportionment and how you can file your claim.
In this article about apportionment for veterans’ families:
- When Is It Used?
- What Purpose Does It Serve?
- Who Qualifies?
- What Situations Don’t Qualify?
- How Much Can Be Apportioned?
- Divorce and Apportionment
- How to Apply for Apportionment
- How To Prove Negligence for VA Apportionment
- Proving Incompetence
- How Long Do Apportionment Claims Take?
- When Does Apportionment End?
- What to Do If Your Claim Is Denied
- Benefits of Hiring a Lawyer
- Learn More About VA Apportionment
What Is Apportionment?
Apportionment is an action the VA can take to reduce the amount of disability compensation a veteran receives. This happens if a member of that veteran’s family is entitled to support that they are not receiving.
A veteran may have been ordered to pay child support or alimony after a divorce. If they do not make those payments, their ex-spouse or child may file to claim the portion of those disability benefits to which they were entitled.
When disability benefits are apportioned, the veteran in question will not receive as much money from the VA each month. Instead, the child, spouse, or parent who filed for apportionment will begin receiving those funds. Apportionment also happens in the cases of veterans who are ruled mentally incompetent.
When Is It Used?
Apportionment is only used in cases where it can be proved that the veteran is failing to meet their legal obligations to family members. This is most often used in cases of divorce when the veteran doesn’t pay their court-ordered support. It is important to note that apportionment doesn’t automatically happen in the event of a divorce, as we’ll discuss later.
Apportionment may also be used when a veteran is mentally incompetent to manage their own finances. This may be due to brain injury, addiction, mental illness, or other similar conditions. If the VA rules that the veteran cannot reasonably manage their own finances, they will apportion the funds to a spouse, parent, or child instead.
What Purpose Does It Serve?
In essence, apportionment is a way to make sure that veterans’ disability benefits are being used appropriately. When the VA makes compensation decisions, they consider financial dependents as a factor. If those dependents are not receiving the support they’re owed, the VA has the right to make sure those funds are handled as intended.
Apportionment can also be a way for the family of a veteran to make sure their disability benefits do not go to enabling unhealthy behavior.
An alcoholic may spend their entire disability compensation check on liquor. A person with dementia or a traumatic brain injury may blow that money on unnecessary or frivolous expenses.
Apportionment gives families the ability to take control of that money.
The VA can assign apportionment to anyone a veteran is legally responsible to support. Most often, this includes spouses, ex-spouses, and children (biological or otherwise) for whom the veteran is responsible. However, parents may sometimes be dependent on a veteran and thus qualify for apportionment.
In order to qualify for apportionment, a family member must meet a few conditions. First and foremost, they must be able to demonstrate a need for support that the veteran is failing to meet. They must also live in a separate household from the veteran.
What Situations Don’t Qualify?
There are a few situations in which apportionment cannot be assigned. For example, if a veteran has only a 10 percent disability rating, they will receive $152.64 per month. This is not a significant enough amount of money to warrant apportioning it to a dependent family member.
If a court has found a spouse guilty of conjugal infidelity or if an ex-spouse has remarried knowing that their veteran ex-spouse is still alive, they cannot claim apportionment. If another person legally adopts a child, that child may be eligible for only part of apportionment benefits. And a child cannot claim apportionment if they enter active military service before they turn 18.
How Much Can Be Apportioned?
Any or all of a veteran’s disability compensation amount can be apportioned to a family member. The amount of money apportioned will depend on the situation. The VA may consider how badly the dependent family member has been abandoned, how much compensation the veteran is receiving, and what other options the abandoned party has for supporting themselves.
If a veteran has a 30 percent disability rating the monthly payment will be $467.39 (more if the veteran has a dependent child, a spouse, or dependent parents). If they have been ordered to pay $800 in child support and alimony per month and they have not been doing that, and if the divorce is the veteran’s fault, the VA may apportion that entire amount to family members. However, if the divorce is a no-fault ruling and the veteran only has to pay $200 in child support or alimony per month, the VA may only apportion part of that money.
Divorce and Apportionment
Although many apportionments are the result of unpaid expenses related to a divorce, the two do not automatically go hand in hand. VA compensation is not considered property that can be divided evenly in a divorce. And often, the VA will only consider apportionment if the veteran has not been keeping up with their financial obligations post-divorce.
If an ex-spouse or child feels that they may be entitled to apportionment, they will have to apply for this themselves. The VA will then review the case and decide if it is appropriate to apportion part or all of the veteran’s disability compensation. They may also consider whether those monies are the best option for covering those ordered expenses.
How to Apply for Apportionment
In order to get apportionment, the wronged family member must fill out VA Form 21-0788. They will need to provide information about their finances, including both their monthly income and their net worth. They will also need to detail their monthly living expenses to prove that there is a demonstrable need for the veteran’s support.
After the VA receives Form 21-0788, they will gather evidence about the situation and consider the case. The filer may need to provide additional financial records, copies of court orders, and information about divorce proceedings. Once the VA decides whether to approve or deny the claim, they will notify both the claimant and the veteran of their decision.
How To Prove Negligence for VA Apportionment
In order to be approved for apportionment, you will need to prove a few things. First of all, you will need to show that the veteran in question has some legal obligation to support you and that you need that support to maintain your lifestyle. Then you will need to show that they have not been providing that support and that that lack of resources has negatively impacted your life.
If you think you may need to file an apportionment claim, it’s a good idea to keep copies of all your financial and court records. Get copies of the court decision that legally mandates the veteran to pay you alimony or child support. Also, keep copies of any checks you do receive from them and all your bank statements so you can show the missing payments.
Here is a review of Woods and Woods from a Veteran that was about to lose his benefits.
In some cases, you may need to prove that a veteran is incompetent in order to get an apportionment. The VA defines a mentally incompetent person as “one who because of injury or disease lacks the mental capacity to contract or manage his or her own affairs, including disbursement of funds without limitation” In most cases, the VA will assign a fiduciary to manage an incompetent veteran’s monetary affairs, but when a veteran does not have a fiduciary, their family may receive apportionment.
Most of the time, the VA relies on a Compensation and Pension exam to determine if a veteran is competent. The rating of incompetency must be supported by either medical evidence or a court ruling. If there is any doubt about whether a veteran is competent or not, the ruling will be resolved in favor of competency.
If you suspect a veteran in your life is incompetent, try to arrange for them to attend a C&P exam. If you can’t get them to do that, an appointment with a doctor or psychiatrist may be enough. And if you can’t get them to a doctor and their decisions are impacting your life, you can file with a court to have them declared mentally incompetent.
How Long Do Apportionment Claims Take?
Waiting for an apportionment claim decision can be difficult, to say the least. After all, you’re filing for this money because you aren’t receiving the financial assistance you need. But, like all VA claims, apportionment cases take a long time.
You should plan for the apportionment claim process to take at least a year and possibly as long as eighteen months. The best way for you to shorten that timeline is to stay organized and proactive in your case. Make sure the VA has all the information they need to make the decision and that that information has made it to the appropriate parties.
We work on VA disability applications and appeals, but in the process we may be applying for apportionment along with your claim. In that case, we may have information on your claim’s progress. Keeping track of due dates and required documentation is the number one way to not delay your case with the VA.
When Does Apportionment End?
If a veteran’s child is receiving apportionment money, those payments will only last until they turn 18 and become a legal adult. If they join the military in an active-duty capacity before they turn 18, they will no longer receive apportionment benefits. However, the veteran parent will continue receiving disability compensation for that dependent child until the child turns 18, even if they enter the military.
If an ex-spouse is receiving apportionment benefits, they will lose those benefits if they begin living as another person’s spouse. If the ex-spouse never remarries, they may continue collecting this apportionment benefit until the death of the veteran. Apportionment benefits end after the last month that the veteran was alive.
What to Do If Your Claim Is Denied
If your apportionment claim is denied, don’t worry. You can appeal that decision to the VA and provide additional evidence that may convince them that your claim is legitimate and necessary. You will need to file an appeal within two months after receiving the VA’s decision, so make sure you move quickly.
You must file an official Notice of Disagreement with the VA in order to appeal your decision. Once you file this notice, the VA will treat the case as a contested claim and send you a statement of the case. After you receive this, you will have thirty days to file a substantive appeal.
Here one of our VA disability lawyers goes over the questions Woods and Woods are often asked about veterans disability claims and appeals.
Benefits of Hiring a Lawyer
As you may have gathered by now, filing for apportionment and appealing decisions is a complicated process. Having an expert to help you navigate this process can make your claim easier and more successful. If you plan to apply for apportionment, you may want to hire a lawyer specializing in veteran benefits.
A veteran’s lawyer can help you navigate the complicated filing and appeals process. We know all the requirements and deadlines, as well as what files you’ll need to include with your claim. We can also help you include information more likely to make your claim successful so you can avoid the appeal process.
Learn More About VA Apportionment
VA apportionment allows people who depend on a disabled veteran for financial support to get the aid they’re entitled to. This benefit usually applies to children or spouses, but dependent parents can also receive benefits. If you plan to file for apportionment, stay organized, be proactive in your case, and hire a lawyer to help you navigate the process.
Let us give you a free review of your case. We fight for veterans and their families every day, and you don’t pay unless we win. Contact us today to start your application or VA appeal.