VA Disability Benefits in Divorce: What State Courts Can’t Order
In In re Marriage of Winters, 2026 IL App (5th) 250283, a factually complex case, the trial court originally ordered, after a trial, that the husband pay the wife a portion of his military retirement benefits. The court further ordered that if the husband received less in military retirement and more in VA disability benefits, the wife would be made whole; that is, the husband would pay her the difference from his VA disability benefits so that she would essentially receive the same amount she would have received from the military retirement benefits (the “VA waiver clause”). The case has been up on appeal twice on various postjudgment motions. For purposes of this appeal, the wife filed a petition for rule to show cause against the husband for his failure to pay her a certain portion of his military benefits. The husband now claimed that those benefits were his nonmarital asset because he was no longer receiving any military retirement and that all of his payments were now disability pay. The husband raised this affirmative defense at the hearing. The trial court agreed that federal law (10 U.S.C. §1408) preempted state law when it came to military disability benefits and that it prohibited the division of disability benefits in the event of divorce. Therefore, the original judgment’s VA waiver clause was void and unenforceable, and it struck the provision from the judgment. The wife appealed, and the Fifth District affirmed even though there was no motion to modify the judgment on file at the time of the ruling. The VA waiver clause impermissibly conflicted with federal law, and because the judgment’s provision was void from inception, it could be attacked at any time, was not subject to res judicata or state-law reopening requirements, and could not be ratified or enforced by subsequent agreed orders between the parties. Void orders can be addressed at any time, and courts may consider voidness arguments sue sponte. The appellate court affirmed the trial court’s order denying the petition for rule and removing the VA waiver clause from the judgment.
NOTE: In its opinion, the appellate court distinguished the case of In re Marriage of Tronsrue, 2025 IL 130596, 272 N.E.3d 84, 487 Ill.Dec. 317. In Tronsrue, the parties had entered into a marital settlement agreement that included language that if the government agencies would not withhold the appropriate amounts and send them to the wife, the husband would pay the amounts directly to the wife each month. In that case, the Illinois Supreme Court held that while a court could not order the husband to pay a certain amount of disability benefits to his ex-wife, the fact that he agreed to pay that amount was distinguishable. “We reiterate that federal preemption is not applicable in a case where the circuit court did not order payment but, instead, the parties entered into an agreement that required [the husband] to pay [the wife] disability benefits that he received.” Winters, supra, 2026 IL App (5th) 250283 at ¶51, quoting Tronsrue, supra, 2025 IL 130596 at ¶55.
Trial Court Reversed for Imposing Restrictions on Parenting Time Without the Necessary Finding of Serious Endangerment
In In re Marriage of Williams, 2026 IL App (5th) 241260, the mother filed a postjudgment motion to enforce parenting time and for a finding of contempt on the grounds that the father failed to allow her to care for the children during his farm planting season, that he could not provide proper care for the children during the season because of his long work days, and that the parenting agreement provided that during harvesting and planting season she was supposed to be caring for the children while he was working long hours. The mother argued that the father was allowing the children to sit unsafely on a tractor (two in one seat) and that they were with him in other conditions that were unsafe for children on a farm. After a hearing, the trial court ordered that when the father was operating heavy machinery the children would be in their mother’s care, but the court declined to hold the father in contempt. The father appealed and the appellate court reversed. The trial abused its discretion when it imposed new safety-based restrictions under the guise of enforcing an agreed parenting plan. The machinery-based prohibitions were inconsistent with the parties’ prior allocation of parenting time and constituted a de facto restriction without making the required finding of serious endangerment under §603.10 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq. Further, §607.5 of the IMDMA may be used to enforce or clarify existing terms but not to add new substantive conditions that limit how or when a parent may exercise parenting time.
For more information about family law, see FAMILY LAW: PROPERTY AND FINANCIAL ASPECTS OF DISSOLUTION ACTIONS (IICLE®, 2023). Purchase the publication here or Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.