Rule2026-00237
Apportionments
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 9, 2026
Effective
February 9, 2026
Issuing agencies
Veterans Affairs Department
Abstract
This final rule amends Department of Veterans Affairs (VA) regulations to limit the circumstances in which benefits will be apportioned and to stop making need-based apportionments. Currently, in limited situations, VA may pay a portion of a VA beneficiary's monetary benefits directly to the beneficiary's dependent, referred to as an apportionment. To qualify, the dependent cannot reside with the beneficiary, must demonstrate financial need, and the apportionment must not cause financial hardship to the beneficiary. VA claims processors, whose expertise is in VA benefits and not in matters related to child or spousal support, decide whether to take monetary benefits from the beneficiary and reallocate the funds to dependents. VA claims processors can take this action without the consent of the beneficiary. These apportionment decisions, which can have significant financial consequences, are based on both parties' self-reported income and self-reported expenses. Unlike State courts, VA has no ability to compel evidence of income and expenses. Allegations of inadequate child or spousal support involve complex issues of family law that are best suited to the expertise and authority of State courts. VA apportionments can upset the expectations upon which a State court support award was predicated, requiring a State court to expend additional resources to revisit a prior determination. Finally, due to their intricacy, a significant amount of information is needed to adjudicate apportionment claims properly. While this information is typically available to State courts, VA must attempt to gather this information from the VA beneficiary and the beneficiary's dependent, which is unavoidably a time-consuming process. The time and effort needed to gather this information increases VA workloads and consumes resources that are better utilized to process veterans' claims. Because VA apportionment awards may conflict with the awards of better-situated State family courts, and because VA lacks the authority and expertise to make fully informed, accurate, and economically appropriate awards, VA is amending its regulations to discontinue making need-based apportionment awards. VA will continue making apportionment awards in situations when a veteran or surviving spouse is incarcerated, or when an incompetent veteran, who does not have a fiduciary, is institutionalized at government expense. VA will not discontinue any current apportionments because of this rulemaking.
Full Text
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<title>Federal Register, Volume 91 Issue 6 (Friday, January 9, 2026)</title>
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[Federal Register Volume 91, Number 6 (Friday, January 9, 2026)]
[Rules and Regulations]
[Pages 899-907]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-00237]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 3 and 21
[Docket No. VA-2021-VBA-0025]
RIN 2900-AP67
Apportionments
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This final rule amends Department of Veterans Affairs (VA)
regulations to limit the circumstances in which benefits will be
apportioned and to stop making need-based apportionments. Currently, in
limited situations, VA may pay a portion of a VA beneficiary's monetary
benefits directly to the beneficiary's dependent, referred to as an
apportionment. To qualify, the dependent cannot reside with the
beneficiary, must demonstrate financial need, and the apportionment
must not cause financial hardship to the beneficiary. VA claims
processors, whose expertise is in VA benefits and not in matters
related to child or spousal support, decide whether to take monetary
benefits from the beneficiary and reallocate the funds to dependents.
VA claims processors can take this action without the consent of the
beneficiary. These apportionment decisions, which can have significant
financial consequences, are based on both parties' self-reported income
and self-reported expenses. Unlike State courts, VA has no ability to
compel evidence of income and expenses. Allegations of inadequate child
or spousal support involve complex issues of family law that are best
suited to the expertise and authority of State courts. VA
apportionments can upset the expectations upon which a State court
support award was predicated, requiring a State court to expend
additional resources to revisit a prior determination. Finally, due to
their intricacy, a significant amount of information is needed to
adjudicate apportionment claims properly. While this information is
typically available to State courts, VA must attempt to gather this
information from the VA beneficiary and the beneficiary's dependent,
which is unavoidably a time-consuming process. The time and effort
needed to gather this information increases VA workloads and consumes
resources that are better utilized to process veterans' claims. Because
VA apportionment awards may conflict with the awards of better-situated
State family courts, and because VA lacks the authority and expertise
to make fully informed, accurate, and economically appropriate awards,
VA is amending its regulations to discontinue making need-based
apportionment awards. VA will continue making apportionment awards in
situations when a veteran or surviving spouse is incarcerated, or when
an incompetent veteran, who does not have a fiduciary, is
institutionalized at government expense. VA will not discontinue any
current apportionments because of this rulemaking.
[[Page 900]]
DATES: This final rule is effective February 9, 2026.
FOR FURTHER INFORMATION CONTACT: Abigail Werner, Acting Chief, Part 3
Regulations Staff, Compensation Service, Veterans Benefits
Administration, (202) 461-9700.
SUPPLEMENTARY INFORMATION: On October 14, 2021, VA published a proposed
rule, 86 FR 57084, to amend its regulations to discontinue making
apportionment awards in most circumstances. VA provided a 60-day
comment period, which ended December 13, 2021. VA received comments
from several individuals, organizations, and State agencies, including
the Fort McClellan Veterans Stakeholders Group; Colorado Child Support
Services; Oregon Child Support Program; Veterans Legal Service; Georgia
Division of Child Support Services; Virginia' Division of Child Support
Enforcement' Washington Division of Child Support; and Trinity
Advocates. VA appreciates the time and effort expended by these
commenters in reviewing the proposed rule and in submitting comments,
as well as their support for this rulemaking. Those comments, which
have been grouped by category, are addressed below.
Additionally, VA has made three changes to address errors found
within the proposed rule. First, VA has moved the list of eligible
apportionees up one paragraph level from 38 CFR 3.451(a)(1)(i) of the
proposed rule to Sec. 3.451(a)(1), and has added a clause noting that
parents are not considered dependents under Sec. 3.23(d)(1) and thus
are not entitled to apportionment of pension. Second, VA has corrected
two typographical errors in Sec. 3.451(c) of the proposed rule. Third,
VA has removed ``or dependent parents'' from Sec. 3.454(a) of the
proposed rule because parents are not entitled to apportionment of
pension.
I. Section by Section Discussion of the Comments
VA received 46 comments in response to the proposed rule. VA
considered all comments submitted. Our evaluation of the comments did
not lead to substantial changes between the proposed rule and this
final rule. In this section, we discuss in detail the public comments
addressing issues raised in the proposed rule.
A. Delegation of Authority
Many commenters stated that VA cannot delegate its exclusive
jurisdiction to State courts because that delegation is a violation of
the Constitution and Supremacy Clause. Commenters also stated that VA's
Secretary (Secretary) is not able to delegate his powers because of 38
U.S.C. 511. Finally, commenters suggested that the proposed rule would
force Congress to amend 38 U.S.C. 5307 to allow the Secretary to
delegate his powers to the States.
VA Response: VA is not delegating its authority to State courts.
Congress has provided VA broad discretionary authority to pay
apportionments out of a VA beneficiary's monetary benefits. Rather, VA
has decided to no longer exercise the discretionary authority given to
it by Congress in some scenarios because VA has determined that State
courts are better equipped at handling child support or spousal support
agreements. Unlike VA, State courts have the power to compel sworn
testimony and the production of documents that can constitute evidence
of income, which VA cannot do. Furthermore, rather than limiting the
Secretary's ability to ``delegate,'' section 511(a) addresses the
Secretary's duty to decide issues necessary to adjudicate benefits
claims that are before the Secretary for resolution and the finality of
those decisions. It does not limit the Secretary's discretionary
authority under section 5307 to determine whether apportionment of
benefits should be considered under particular circumstances. This rule
is aligned with sections 5307 and 511 because VA is not delegating its
authority to State courts.
Neither the Constitution nor its Supremacy Clause is at issue here.
When the Supreme Court explained in Rose v. Rose that family law
(``domestic relations'') is State law, it restated word for word a
well-settled principle announced in the same court in 1890 and
summarized again in 1997. 481 U.S. 619, 625 (1987) (quoting In re
Burrus, 136 U.S. 586, 593-4 (1890) (``The whole subject of the domestic
relations of husband and wife, parent and child, belongs to the laws of
the States and not to the laws of the United States.'') and Boggs v.
Boggs, 520 U.S. 833, 848 (1997) (same). Based, albeit in part, on this
principle, the Court has established a presumption: ``[b]ecause
domestic relations are preeminently matters of state law,'' as the
Court noted in Mansell v. Mansell, 490 U.S. 581, 587 (1989), ``we have
consistently recognized that Congress, when it passes general
legislation, rarely intends to displace state authority in this area.''
The presumption is rebuttable, but only on a showing that the State law
would do ``major damage'' to ``clear and substantial interests'' of the
Federal government. Rose, 481 U.S. at 625. Per the Supreme Court in
Rose, ``[t]here being no `major damage' to the federal interests
underlying [section] 211(a)''--which Congress redesignated in 1991 as
section 511(a)--``[that law] does not pre-empt exercise of state-court
jurisdiction to enforce a veteran's child support,'' or spousal
support, ``obligation.'' 481 U.S. at 629-30.
In section 5307(a) Congress has provided that VA may apportion
compensation and pension benefits, including dependency and indemnity
compensation and rehabilitation subsistence allowances paid under 38
U.S.C. Chapter 31. This authority is at the discretion of the
Secretary. In section 5313(b)(1), Limitation on payment of compensation
and dependency compensation to persons incarcerated for conviction of a
felony, Congress provided that the Secretary may apportion benefits.
Similarly, in section 5502(d), Payment to and supervision of
fiduciaries, and section 5503(a)(2), Hospitalized veterans and estates
of incompetent institutionalized veterans, Congress provided that VA
may apportion benefits. Notably, each apportionment authority in title
38 of the U.S. Code is discretionary, not mandatory, as shown by the
use of the word ``may'' or the phrase ``may be apportioned as
prescribed by the Secretary.'' Thus, VA makes no change based on these
comments.
B. Rose v. Rose, 481 U.S. 619 (1987)
A few commenters stated that the proposed rule discussed Rose.
These commenters explained that section 511 explicitly excludes State
courts from having jurisdiction. Another commenter noted that the Rose
ruling was based upon the fact that the disabled veteran in that case
was never afforded a proper VA apportionment claim review. The same
commenter indicated that the Secretary cannot delegate duties awarded
to VA by Congress by using Rose because the Rose case did not include
an apportionment ruling. Another commenter indicated support of VA's
decision by quoting supportive language from Rose and mentioned that
State courts are already apportioning benefits so that VA no longer
needs to apportion benefits.
VA Response: As the commenters correctly note, section 511(a) was
signed into law four years after the Rose decision. However, the
comments misunderstand section 511(a). Section 511(a) is a word-for-
word redesignation of section 211(a), which dates to the passage of the
Veterans Judicial Review Act of 1988 and which Congress contemplated in
draft form as early as 1979, well before Rose. As noted above,
Congress's intent in mandating that the
[[Page 901]]
Secretary ``shall decide all questions of law and fact'' was that the
Secretary has a duty to decide issues necessary to adjudicate benefits
claims. To the extent VA ceases issuing a given category of
apportionment decisions, there is no VA apportionment decision and
therefore no potential for a conflict with an action by any other
decisionmaker. Thus, section 511(a) is simply inapplicable. The
question is whether VA's apportionment authority is discretionary or
mandatory, not whether section 511 would authorize and preclude review
of apportionment decisions to the extent the Secretary continued making
them.
VA also disagrees with several of the commenters' interpretation of
the Rose case. To clarify, the Rose case supports the point that
veterans' disability benefits are not exempt from claims for spousal
support and child support. Under the Rose decision, State courts may
consider the availability of VA benefits in determining the amount of a
veteran's child support obligation. State courts may also set a support
award in an amount that would necessarily require that part of the
support award be paid out of VA benefits once they are received by the
veteran. In reaching that determination, the Supreme Court found that
states have independent authority to establish child support
obligations. The Supreme Court explained that VA disability
compensation is intended to benefit both the veteran and his or her
dependents. Therefore, the Court held that the States' consideration of
such benefits in establishing child support awards did not contravene
Federal law. Some State courts have interpreted Rose as carving out an
exception to the prohibition of attachment of VA benefits under section
5301(a) for purposes of child support payments. Some State courts have
extended the Rose holding to spousal support payments.
Finally, VA reiterates that it is not delegating its authority to
State courts. The extent of State courts' authority is unchanged. VA
has only decided to no longer exercise certain discretionary authority
given by Congress because VA has identified that State courts are
better suited to handle child and spousal support matters. It may be
that part of commenters' confusion is in the misuse of key terms.
Technically, State courts do not ``apportion'' VA benefits under
section 5307 or any other provision of title 38 of the U.S. Code or
title 38 of the CFR. Apportionment is a VA discretionary authority
under Federal law and regulations; ``apportionment'' in this context
has a precise, specialized meaning within VA law. State courts, in
contrast, divide income under the authority of State law. The result of
a State court's order may be in effect similar to an apportionment, but
the difference matters. As noted above, the proposed rule is not in
tension with section 511(a). It also does not interfere with the
exercise of Congress's or the President's military powers. The Supreme
Court has held time and again that veterans' benefits including
disability compensation are for the veteran and the veteran's family.
See, e.g., Rose, 481 U.S. at 630. The Supreme Court has not overturned
Rose and Congress has not invalidated it. Rose remains good law.
Accordingly, VA makes no changes based on these comments.
C. State Courts
(1) State Court Attorneys Accreditation and the Best Interest for
Veterans
Many commenters strongly opposed State court attorneys determining
apportionments for dependents. The commenters indicated that State
court attorneys are not accredited or able to equitably weigh the
interests of disabled veterans. The commenters expressed that State
court attorneys who determined apportionment claims would violate 38
CFR 14.629. Also, commenters mentioned that apportionment is an action
that only VA is equipped and competent to make, not State court
attorneys.
VA Response: Under 38 U.S.C. 5901(a) and 38 CFR 14.629(b)(1), no
one may assist claimants in the preparation, presentation, and
prosecution of their benefits claims before VA as an attorney unless
first accredited by VA for such purpose. As the commenters correctly
mentioned, all attorneys representing a claimant in any type of VA
benefits claim must be accredited by VA. However, the State court
attorneys that will litigate child support or spousal support cases
will not need VA accreditation. This is because the State court
attorneys will be representing individuals in their respective State
courts, not before VA. Cases for child support or spousal support are
not filed with VA. Further, VA believes that State courts should handle
these issues because they have the resources to make decisions that
fully weigh the impact of their decisions on the veteran and the
dependents. VA notes that its decision to no longer make need-based
apportionments is driven by much more than administrative convenience
for the agency. The agency's focus is to address the largely outdated
practice of adjudicating apportionment claims because supporting the
needs of veterans' dependents is generally better performed in State
courts with superior resources and enforcement capabilities. VA does
not make any changes based on these comments.
(2) Disability Payments Should Not Be Considered as Income
One commenter indicated that a veteran's disability compensation is
the only money received to support that veteran's children and
themselves and that the State courts should not consider this in a
formula as income. Another commenter stated that VA should send a
letter forbidding States from using a veteran's disability payment as
income when determining child or spousal support.
VA Response: Section 5301(a)(1) of title 38, U.S. Code, generally
exempts VA benefits from any legal or equitable process, such as
garnishment. Although section 5301(a)(1) generally prohibits
garnishment of VA benefits, the Supreme Court in Rose held that State
courts may enforce support orders against VA compensation payments. As
previously noted, in Rose, the Supreme Court found that such
consideration of benefits in establishing child support awards did not
contravene Federal law. This principle has not changed. Accordingly, VA
does not have authority to forbid a State from considering a veteran's
disability payment as income in the spousal or child support context.
Another commenter mentioned that the States have no preexisting
sovereign authority, jurisdiction, or control over the Federally
appropriated monies designated by Congress for the compensation of
military service members, veterans, and their dependents. Mansell, 490
U.S. at 589.
VA Response: Rose is distinguishable from the Supreme Court's
decision in Mansell, which held that the Former Spouses' Protection Act
precludes States from ``the power to treat as property divisible upon
divorce military retirement pay waived by the retiree to receive
veterans' disability benefits.'' 490 U.S. at 594-5. The Court
specifically noted that it was not addressing the issue discussed in
Rose, i.e., whether section 5301(a) independently protects veterans'
benefits from consideration in assessing child support obligations.
Mansell, 490 U.S. at 587 n.6. Therefore, VA makes no changes based on
this comment.
(3) Income Withholding and Garnishment
A commenter suggested that as an alternative to the proposed rule
VA should amend Federal law to allow
[[Page 902]]
income withholding from VA benefits for child support obligations.
Another commenter suggested VA make a change to Federal law to allow
garnishment of all VA benefits for State court-ordered child support
obligations.
VA Response: VA cannot make statutory changes through regulation.
Only Congress can change Federal law. As an agency, VA derives
authority to issue regulations from laws enacted by Congress, including
the general rulemaking authority in section 501. VA cannot make any
changes based on these comments.
Another commenter indicated that apportionments are necessary for
some people. The commenter mentioned that, because State courts cannot
garnish Federal disability money, until there is another safety net for
the beneficiary, the apportionment process should remain in place as an
option for dependents to receive financial support.
VA Response: VA notes that there often are several options for
dependents to receive financial support. State courts can provide
child/spousal support through a number of means with the ability to
compel a full accounting and enforce their decisions. Further, the
Supreme Court has held that, although there are restrictions on
garnishing VA benefits ``while in the hands of [VA],'' they do not
preclude States from enforcing child support obligations through any
available means ``once these funds are delivered to the veteran.''
Rose, 481 U.S. at 635. The Court there stated that, as opposed to an
enforcement order against an agency, ``we find no indication in the
statute that a state-court order of contempt issued against an
individual is precluded where the individual's income happens to be
composed of veterans' disability benefits.'' The reach of State courts
is much greater than that of VA in assessing the adequate support
needed, and States have mechanisms to enforce support orders. Thus, no
change is made based on this comment.
(4) VA Should Adopt a National Child Support Standard for State Courts
A commenter suggested that VA draft a national child support
calculation for the States to use for parties who are veterans.
VA Response: VA notes that because child support laws are
constantly evolving and are different from jurisdiction to jurisdiction
within the United States, State courts are the best venues for
determining fair support agreements. As noted above, the Supreme Court
has made clear that ``[t]he whole subject of the domestic relations . .
. belongs to the laws of the States and not to the laws of the United
States.'' The phrase ``laws of the United States'' means Federal law.
In addition, a veteran's support obligation could be required in
another country. The courts of those jurisdictions have the specific
legal expertise to make fair determinations. No change was made based
on this comment.
D. VA's Decision To Stop Apportionments
Some commenters were opposed to VA's decision to discontinue making
need-based apportionment awards. Specifically, those commenters
indicated that VA should not take apportionments away unless it
proposes an alternative method for families or that VA should still
assist families with the collection of support via apportionment. Other
commenters mentioned that VA is making the process more difficult for
the children who need support, and the beneficiary will no longer
support his or her dependents. Some commenters stated that the current
process for apportionment is the fairest way to determine if courts are
creating a hardship by including disability payments as income with the
court's child support decisions. One commenter mentioned that the
needs-based consideration should be maintained because it protects the
veteran beneficiary. Other commenters believed that eliminating
apportionments will prevent military families from getting child
support when the beneficiary refuses to support their dependents from
VA benefits. Finally, one commenter suggested that VA leave an
apportionment process in place only for child support agencies.
VA Response: VA stands by its decision to stop making new need-
based apportionments because, as previously noted, State courts are
better equipped to deal with these matters. State attorneys have the
expertise and resources to investigate and decide what is in the best
interest of the veteran and the dependent. For example, VA cannot
verify the accuracy of the self-reported accountings that describe the
level of support needed. State courts can investigate, verify, and
enforce their decisions. Thus, State courts are best suited to assist
families with support collection. Additionally, VA would like to note
that when the beneficiary refuses to support his or her dependents, or
a State court makes a legal determination that support provided is
inadequate, a State court generally can garnish wages or bank accounts.
Finally, VA believes State courts are better suited to interact with
child support agencies for the same reasons mentioned above. Therefore,
VA makes no change based on these comments.
E. How To Terminate/End Apportionments
One commenter suggested that VA provide additional clarity
regarding when apportionments terminate and how to end apportionments.
VA Response: VA will restate from the proposed rule and clarify how
to terminate and end apportionments. According to 38 CFR 3.500(d),
except as otherwise provided, an apportionment terminates on the date
of the last payment when the reason for apportionment no longer exists.
Apportionments will continue to be paid until the circumstances that
provided entitlement to the apportionment no longer exist, such as the
divorce of the veteran and spouse, death of the primary beneficiary,
death of an apportionee, or other such circumstances that provided
entitlement to the apportionment. VA does not make any change based on
this comment.
F. Other Comments
Some commenters mentioned that the States will be unfair, biased,
and discriminatory and that State courts will cause a financial crisis
for veterans because VA will no longer be protecting VA disability
compensation from being taken away from the veteran.
VA Response: Any veteran who disagrees with a State court decision
on child or spousal support may appeal the decision to the appropriate
State appellate court. Such veteran may seek legal services for a State
court decision through the State bar. Further, VA provides a list of
legal clinics available in each State for certain State court matters,
including family law. That list is available at <a href="http://www.va.gov/OGC/LegalServices.asp">www.va.gov/OGC/LegalServices.asp</a>.
A few commenters disagreed with VA's second alternative mentioned
in the proposed rule. The second alternative VA considered was setting
the apportionment amount equal to the additional amount the veteran
receives for the apportionee as a dependent. The commenters mentioned
that the second alternative is not feasible because this would create
an even larger backlog for VA as well as disrupt State courts.
VA Response: In the SUPPLEMENTARY INFORMATION section to the
proposed rule, VA mentioned three alternatives it considered while
rulemaking. The first alternative was to maintain the current
apportionment provisions and make no changes. The second alternative
was to set the apportionment amount equal to the additional amount the
veteran
[[Page 903]]
receives for the apportionee as a dependent. The final alternative
mentioned in the proposed rule was to eliminate all apportionments.
The commenters disagreed with the second alternative mentioned. VA
has decided not to use the second alternative because, as mentioned in
the proposed rule, VA learned this option would cause undue hardship
for the veteran. VA also learned that this option has the potential to
disturb a State court's allocation of resources and potentially
disadvantage a veteran or the dependents. For these reasons, VA chose
not to propose this option. No change will be made based on this
comment.
One commenter suggested that VA should consider the veteran's pay
model of a retiree with pay when dealing with apportionments.
VA Response: It was unclear what the commenter was trying to convey
regarding how VA should use the veteran's pay model of a retiree with
apportionment claims. Accordingly, no change has been made.
One commenter mentioned that the information in this rulemaking
about a veteran waiving a portion of his or her military retired pay to
receive VA benefits was obsolete because of Mansell.
VA Response: VA would like to clarify. In the proposed rule, VA
mentioned that under 42 U.S.C. 659, pursuant to a valid State order, a
portion of a veteran's disability compensation can be withheld or
garnished for spousal or child support when a veteran has waived a
portion of his or her military retired pay to receive VA benefits. This
is still current and has not been made obsolete by the Mansell case. As
previously stated, the Mansell Court specifically noted that it was not
addressing the issues in the Rose case on whether 38 U.S.C 5301(a)
independently protects veterans' benefits from garnishment to pay child
support. We hope this provides clarification because 42 U.S.C. 659 is
still the governing body of law. No change was made based on this
comment.
G. Supportive Comments
Many comments supported the proposed rule. One commenter mentioned
that VA should not be making decisions on apportionment matters because
family courts are better suited to determine the right distribution of
a veteran's income for purposes of child and spousal support. This
commenter further stated that VA should stop apportioning veterans'
benefits. Another commenter observed that State courts are already
dividing income, including veterans' income, for support of children
and spouses so VA should not. The same commenter also mentioned that if
VA continues apportioning benefits there will be an undue burden on
VA's employees and VA's current apportionment system is unnecessary and
inefficient. Another commenter mentioned being pleased with the
proposed modifications to the apportionment process. The same commenter
further indicated that VA leaves the matters of domestic relations to
the States in every other context and that VA should let the States
handle this matter too. Other commenters mentioned that only a State
court judge should resolve the question of whether a veteran has a
legal obligation to support a dependent under State law. One commenter
supported the proposed regulation because that commenter mentioned that
States give credit to child support beneficiaries for other support
obligations when the beneficiary lives separately from the dependent.
The same commenter mentioned that VA's current system makes obtaining
this credit unnecessarily complex and unduly burdensome. Finally, one
commenter mentioned support for the rulemaking but encouraged VA to
collaborate with the IV-D agencies (named after subchapter IV-D of the
Social Security Act) and veteran service legal aid organizations
regarding the process for applying for apportionments.
VA Response: VA also believes that this rulemaking is a step in the
right direction for the betterment of dependents and beneficiaries.
Also, VA collaborates with many organizations and will continue to do
so. To be clear, although part of the justification for discontinuing
need-based apportionments is that State courts tend to be better suited
to deciding matters of family law, including spousal and child support,
the broader justifications apply to places outside of U.S. States in
which VA has responsibility, such as the Philippines and the Freely
Associated States. The reasons for VA to discontinue need-based
apportionments are the same, regardless of where a claimant lives. We
do not make any changes based on these comments.
H. Comments Outside of the Scope of the Proposed Rule
A commenter mentioned that the Secretary did not mention
apportionments during a Veterans' Day speech the Secretary gave. VA
also received a comment responding to the Federal Register notice
published by VA on October 27, 2021, 86 FR 59449, which relates to the
new VA form associated with this rule. The submission concerns an
individual matter and is unrelated to this rule.
VA Response: These comments are beyond the scope of this rule.
Accordingly, VA makes no changes based on these comments.
A few other commenters submitted comments providing opinions on
comments submitted on the proposed rule. Specifically, a commenter
noted that other comments referenced the Howell v. Howell Supreme Court
decision, and expressed that these commenters were wrong to do so
because the Howell case is not relevant.
VA Response: In Howell v. Howell (581 U.S. 214 (2017)), the Supreme
Court held that States may not order a veteran to indemnify a divorced
spouse to make up for the military retirement pay the veteran waived to
receive VA disability compensation. The holding concerns a State
court's attempt to enforce a divorce decree to restore the amount of
the military retirement pay the veteran waived to get VA disability
pay. In Howell, the Supreme Court expressly relied on the holding of
Mansell, and, in Mansell, as noted above, the Court specifically noted
that it was not addressing the issue discussed in Rose, i.e., whether
38 U.S.C. 5301(a) independently protects veterans' benefits from
consideration in assessing child (or spousal) support obligations.
Mansell, 490 U.S. at 587 n.6. Even if Howell limits how States divide a
veteran's pay for purposes of child or spousal support, it does so only
with respect to military retirement pay, and does not undermine the
rule of Rose that State courts may take a veteran's benefits into
account when determining a veteran's child support obligation. The
Howell court explicitly noted that the appropriate amount of support
could be recalculated taking disability compensation into account under
the rule of Rose. See Howell, 581 U.S. at 222. Howell, therefore, is
inapplicable. Further, the comment appears to be in support of the
proposed rule; it proposes no substantive changes to the rule. VA makes
no change based on this comment.
Another commenter noted that there were multiple comments
suggesting ``this change [is] screwing over the Veteran,'' and
disagreed saying ``[i]f the VA is supposed to be an advocate for the
Veteran; there should not be direct avenues for angry ex-spouses to
obtain a Veteran's benefits. It's about time this change is proposed.
VA employees should not be making arbitrary decisions based on their
own sentiments. That is what the family
[[Page 904]]
courts are for. Stop apportioning Veteran's benefits.''
VA Response: VA also believes that this rulemaking is a step in the
right direction for the betterment of dependents and beneficiaries. We
make no changes based on this comment.
Another commenter stated: ``Some fellow commenters have indicated
the solution in these circumstances is for the veteran to file a
request to modify the child support. This commentary does not take into
consideration the challenges economically disadvantaged veterans have
navigating the family court system and the limited legal aid options
available to assist them.''
VA Response: VA acknowledges that there may be financial challenges
with State court proceedings, but notes that there are options for pro
bono representation through local bar associations. VA also notes that
many of the State court actions for divorce and child support are
completely separate from apportionment concerns and not driven by them.
Finally, State courts remain better equipped to justly and fairly
divide assets for the parties involved using discovery, affidavits, and
financial evidence to which the VA does not have access. VA makes no
change based upon this comment.
II. Regulatory Process Matters
VA makes no changes based on the comments received. This document
adopts as a final rule the proposed rule published in the Federal
Register on October 14, 2021, with the technical changes noted above.
Executive Orders 12866, 13563, and 14192
VA examined the impact of this rulemaking as required by Executive
Orders 12866 (Sept. 30, 1993) and 13563 (Jan. 18, 2011), which direct
agencies to assess all costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits. The Office of Information and
Regulatory Affairs has determined that this rule is not a significant
regulatory action under Executive Order 12866, as supplemented by
Executive Order 13563. This final rule is a deregulatory action under
Executive Order 14192. The regulatory impact analysis associated with
this rulemaking can be found as a supporting document at
<a href="http://www.regulations.gov">www.regulations.gov</a>.
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-
612). The factual basis for this certification is based on the fact
that no small entities or businesses receive or determine entitlement
to VA apportionment payments. Therefore, pursuant to 5 U.S.C. 605(b),
the initial and final regulatory flexibility analysis requirements of 5
U.S.C. 603 and 604 do not apply.
Unfunded Mandates
This final rule will not result in the expenditure by State, local,
and Tribal governments, in the aggregate, or by the private sector, of
$100 million or more (adjusted annually for inflation) in any one year.
Paperwork Reduction Act
The Paperwork Reduction Act (PRA) of 1995 (at 44 U.S.C. 3507)
requires that VA consider the impact of paperwork and other information
collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an
agency may not collect or sponsor the collection of information, nor
may it impose an information collection requirement, unless it displays
a currently valid OMB control number. See also 5 CFR 1320.8(b)(3)(vi).
As required by the PRA of 1995 (at 44 U.S.C. 3507(d)), VA has
submitted these information collection amendments to OMB for its
review. Notice of OMB approval for this information collection will be
published in a future Federal Register document. This rule will impose
the following amended information collection requirements:
Description of respondents: The respondent population is composed
of individuals requesting an apportionment of a VA beneficiary's
monetary award when that beneficiary is incarcerated or is deemed
incompetent and hospitalized at government expense.
Estimated frequency of responses: Most claimants will use the
apportionment form (2900-0666 (VA Form 21-0788)) once. However, the
frequency may vary slightly for apportionees of incarcerated veterans,
depending on the number of times the primary beneficiary is
incarcerated. For an incompetent veteran institutionalized at
government expense, VA will appoint a fiduciary; therefore,
apportionment claims other than the initial claim will not be needed.
Estimated number of respondents: VA anticipates the annual
estimated numbers of respondents for 2900-0666 (VA Form 21-0788) as
follows:
2900-0666 (VA Form 21-0788)--In 2024, VA received 2,888
apportionment claims. VA also processed 343 hospital adjustments for
veterans in receipt of benefits who were hospitalized or in a nursing
home or receiving domiciliary care at VA expense. Approximately 8 of
these veterans were incompetent and potentially met the requirements
for payment of an apportionment to a dependent. VA also completed
approximately 320 apportionments for incarcerated veterans in 2024. Of
the 2,888 annual apportionment claims, VA estimates approximately 328
would still need to be processed under the final regulation.
OMB Control Number 2900-0666 (VA Form 21-0788) is a collection of
information for an apportionment claim currently required by VA for
these claims to be adjudicated. Because VA requires submission of the
form to file for an apportionment, VA does not expect an increase in
the annual number of respondents; and in fact, anticipates a decrease
in the number of claims. In addition, VA is reducing the substance of
the collection of information on this OMB-approved collection of
information, reducing the time needed to complete the form from 30
minutes to 15 minutes, thus further reducing the respondent burden.
Estimated total annual reporting and recordkeeping burden: 2900-
0666 (VA Form 21-0788)--The annual burden is reduced from approximately
1,444 hours per year (2888 claims times 30 minutes per claim form
divided by 60) to about 82 hours per year (328 claims per year times 15
minutes per claim form divided by 60). The total estimated cost to
respondents is reduced to $2,678.12 (82 hours x $32.66/hour \1\). This
submission does not involve any recordkeeping costs.
---------------------------------------------------------------------------
\1\ The Bureau of Labor Statistics (BLS) gathers information on
full-time wage and salary workers. According to the latest available
BLS data, the mean hourly wage is $32.66 based on the BLS wage
code--``00-0000 All Occupations.'' This information was taken from
the following website: <a href="http://www.bls.gov/oes/current/oes_nat.htm">www.bls.gov/oes/current/oes_nat.htm</a>.
---------------------------------------------------------------------------
This rulemaking mandates the use of the VA form in the processing
and adjudication of apportionment claims. The amendment to Sec. 3.450
impacts the estimated annual number of respondents and, consequently,
the estimated total annual reporting and recordkeeping burden. It also
reduces the effect of the existing information collection already
approved by OMB. The proposed use of information and description of
likely respondents will remain unchanged for this form. The response
frequency is less than the previous number estimated. The estimated
average burden per response is reduced from 30 minutes to 15
[[Page 905]]
minutes. VA estimates the total incremental savings based on this
revised information collection to be $44,482.92 ($47,161.04 under the
current form -$2,678.12 for the revised form).
Methodology for Estimated Annual Number of Respondents for Affected
Forms
VA has formulated the estimated total number of annual responses
for apportionment claims by using the total number of apportionment
claims received in 2024.
List of Subjects
38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Pensions, and Veterans.
38 CFR Part 21
Administrative practice and procedure, Claims, Veterans, Vocational
education, Vocational rehabilitation.
Signing Authority
Douglas A. Collins, Secretary of Veterans Affairs, approved this
document on September 30, 2025, and authorized the undersigned to sign
and submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs.
Taylor N. Mattson,
Alternate Federal Register Liaison Officer, Department of Veterans
Affairs.
For the reasons stated in the preamble, VA amends 38 CFR parts 3
and 21 as follows:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
0
1. The authority citation for part 3, subpart A, continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
Sec. 3.31 [Amended]
0
2. Amend Sec. 3.31(c)(3) introductory text by removing the words
``original or increased''.
Sec. 3.210 [Amended]
0
3. Amend Sec. 3.210(c)(1)(ii) by:
0
a. Removing ``apportionee,'' from the first sentence; and
0
b. Removing the last sentence.
Sec. 3.252 [Amended]
0
4. Amend Sec. 3.252 by removing the last sentence of paragraph (d).
0
5. Revise Sec. 3.400(e) to read as follows:
Sec. 3.400 General.
* * * * *
(e) Apportionment--(1) General rule. Except as provided in
paragraph (e)(2) of this section, the effective date of an
apportionment is the first day of the month after the month in which VA
receives an apportionment claim. (See Sec. Sec. 3.450 through 3.455
and 3.551.)
(2) Exceptions to general rule--(i) Claim for benefits is pending.
If a veteran or surviving spouse (primary beneficiary) has a claim for
benefits pending on the date that VA receives an apportionment claim,
the effective date of the apportionment will be the effective date of
the primary beneficiary's award, or the date the apportionment
claimant's entitlement arose, whichever is later.
(ii) Apportionment claimant not yet established as the
beneficiary's dependent. If VA receives an apportionment claim within 1
year of the award of benefits to the primary beneficiary and the
apportionment claimant has not been established as a dependent on the
primary beneficiary's award, the effective date of the apportionment
will be the effective date of the primary beneficiary's award or the
date the apportionment claimant's entitlement arose, whichever is
later.
(iii) The primary beneficiary is incarcerated. The effective date
of an apportionment when the primary beneficiary is incarcerated is
specified in Sec. 3.665 or Sec. 3.666.
* * * * *
0
6. Revise Sec. 3.450 to read as follows:
Sec. 3.450 General Apportionment.
(a) Applicability. Sections 3.450 through 3.459 apply to all claims
for apportionment VA receives on or after February 9, 2026.
(b) Existing apportionments. All apportionments being paid as of
February 9, 2026, will continue to be paid until the circumstances that
provided entitlement to the apportionment no longer exist, such as
divorce of the veteran and spouse, death of the primary beneficiary,
death of an apportionee, or other such circumstances that provided
entitlement to the apportionment.
(c) Apportionment application. Claims for apportionment must be
submitted to VA on a form prescribed by the Secretary.
(Authority: 38 U.S.C. 501(a))
0
7. Revise Sec. 3.451 to read as follows:
Sec. 3.451 Apportionment claims.
(a) General--(1) Veteran. All or part of the pension or disability
compensation payable to any veteran may be apportioned for the
veteran's spouse, child, or children, or, in the case of disability
compensation but not pension, for the veteran's dependent parent, if
one of the following conditions exist:
(i) The veteran is incompetent and is being furnished hospital
treatment, nursing home, or domiciliary care by the U.S., or any
political subdivision thereof; or
(ii) The veteran is incarcerated and meets the conditions of Sec.
3.665 or Sec. 3.666.
(2) Surviving spouse. Where a child or children of a deceased
veteran is not living with the veteran's surviving spouse because the
surviving spouse is incarcerated and meets the conditions of Sec.
3.665 or Sec. 3.666, the dependency and indemnity compensation (DIC)
or pension otherwise payable to the surviving spouse may be apportioned
to the child or children. No apportionment shall be payable to a child
who did not reside with the surviving spouse prior to incarceration.
(b) Apportionment to a child on active duty. No apportionment of
disability or death benefits will be made or changed solely because a
child has entered active duty. If an apportionment is claimed for a
child on active duty on the date the apportionment claim is received by
VA, no apportionment will be made. If an apportionment is being paid to
the veteran's spouse and includes an amount for a child, and the child
enters active duty, no change in the apportionment will be made.
(c) Apportionment of death benefits. Any amounts payable for
children under Sec. Sec. 3.454 and 3.455 will be equally divided among
the children.
(Authority: 38 U.S.C. 5307, 5502(d))
0
8. Revise Sec. 3.452 to read as follows:
Sec. 3.452 Veteran's benefits apportionable.
A veteran's benefits may be apportioned when the veteran is
receiving hospital treatment, nursing home, or domiciliary care
provided by the U.S. or a political subdivision, upon receipt by VA of
an application:
(a) Pending appointment of fiduciary. Pending the appointment of a
guardian or other fiduciary.
(b) Veteran receiving hospital, domiciliary, or nursing home care--
(1) Incompetent veteran--(i) Spouse or child. Where an incompetent
veteran without a fiduciary is receiving hospital treatment, nursing
home, or domiciliary care provided by the U.S. or a political
subdivision, his or her benefit may be apportioned for a spouse or
child.
(ii) Dependent parent. Where an incompetent veteran without a
fiduciary
[[Page 906]]
is receiving hospital treatment, nursing home, or domiciliary care
provided by the U.S. or a political subdivision, his or her disability
compensation may be apportioned for a dependent parent.
(2) Competent veteran--(i) Section 306 pension. Where the amount of
section 306 pension payable to a married veteran is reduced to $50
monthly under Sec. 3.551 while a veteran is receiving hospital,
domiciliary, or nursing home care, an apportionment may be made to such
veteran's spouse. The amount of the apportionment generally will be the
difference between $50 and the total amount of pension payable on
December 31, 1978.
(ii) Improved pension. Where the amount of improved pension payable
to a married veteran under 38 U.S.C. 1521(b) is reduced to $90 monthly
under Sec. 3.551 an apportionment may be made to such veteran's
spouse. The amount of the apportionment generally will be the
difference between $90 and the rate payable if pension were being paid
under 38 U.S.C. 1521(c), including the additional amount payable under
38 U.S.C. 1521(e) if the veteran is so entitled.
(Authority: 38 U.S.C. 501(a), 5307, 5502, 5503(a); Pub. L. 95-588,
section 306, 92 Stat. 2497, 2508-2510)
0
9. Revise Sec. 3.453 to read as follows:
Sec. 3.453 Benefits not apportionable.
VA will not apportion benefits:
(a) Unless the spouse of a veteran files a claim for an
apportionment. If there is a child of the veteran, an apportionment
will not be authorized unless a claim for an apportionment is filed by
or for the child.
(b) To any beneficiary's dependent who is determined by VA to have
been guilty of mutiny, treason, sabotage, or rendering assistance to an
enemy of the U.S. or its allies.
(c) After September 1, 1959, if a veteran, spouse, child, dependent
parent, or other primary beneficiary:
(1) Forfeited benefits due to fraud or a treasonable act; or
(2) Was convicted of subversive activity.
Note 1 to Sec. 3.453: See Sec. Sec. 3.900 through 3.903.
(Authority: 38 U.S.C. 5307, 6103(b), 6104(c), 6105(a))
0
10. Revise Sec. 3.454 to read as follows:
Sec. 3.454 Apportionment of pension.
(a) Disability pension. Disability pension will be apportioned to
the veteran's spouse or child or children.
(b) Death pension. Old-Law death pension, section 306 death
pension, and improved pension will be apportioned to the veteran's
child or children.
(Authority: 38 U.S.C. 5307)
0
11. Add Sec. 3.455 to read as follows:
Sec. 3.455 Apportionment of a surviving spouse's dependency and
indemnity compensation.
(a) Conditions under which apportionment may be made. The surviving
spouse's award of dependency and indemnity compensation (DIC) will be
apportioned where there is a child under 18 years of age and the
surviving spouse is incarcerated and meets the provisions of Sec.
3.665. DIC will not be apportioned under this paragraph (a) for a child
over age 18 years unless the child is permanently incapable of self-
support in accordance with the provisions of Sec. 3.57.
(b) Rates payable. The amount of apportionment of DIC will be
determined in accordance with the provisions of Sec. 3.665.
(Authority: 38 U.S.C. 101(4)(A), 104(a), 5307)
Sec. Sec. 3.456 and 3.457 [Added and Reserved]
0
12. Add reserved Sec. Sec. 3.456 and 3.457.
Sec. Sec. 3.458 through 3.461 [Removed and Reserved]
0
13. Remove and reserve Sec. Sec. 3.458 through 3.461.
0
14. Amend Sec. 3.556 as follows:
0
a. In paragraph (a)(1), remove the words ``unless it is determined that
apportionment for a spouse should be continued'';
0
b. In paragraph (e):
0
i. Remove ``, in the case of a competent veteran,'' from the second
sentence and remove the third sentence; and
0
ii. Revise the last sentence;
0
c. Remove the parenthetical authority following paragraph (e); and
0
d. Add a parenthetical authority citation at the end of the section.
The revision and addition read as follows:
Sec. 3.556 Adjustment on discharge or release.
* * * * *
(e) Regular discharge. * * * Where an apportionment was made under
Sec. 3.551(c), the apportionment will be discontinued effective the
day preceding the date of the veteran's release from the hospital,
unless an overpayment would result. In the excepted cases, the awards
to the veteran and apportionee will be adjusted as of date of last
payment.
* * * * *
(Authority: 38 U.S.C. 5503)
0
15. Amend Sec. 3.665 by revising paragraphs (e), (h), and (i) to read
as follows:
Sec. 3.665 Incarcerated beneficiaries and fugitive felons--
compensation.
* * * * *
(e) Apportionment--(1) Compensation. All of the compensation not
paid to an incarcerated veteran may be apportioned to the veteran's
spouse, child or children (in equal shares), or dependent parent or
parents (in equal shares).
(2) DIC. All of the DIC not paid to an incarcerated surviving
spouse or other children not in the surviving spouse's custody may be
apportioned to another child or children. All of the DIC not paid to an
incarcerated child may be apportioned to the surviving spouse or other
children (in equal shares).
* * * * *
(h) Notice to dependent for whom apportionment granted. A dependent
for whom an apportionment is granted under this section shall be
informed that the apportionment is subject to immediate discontinuance
upon the incarcerated person's release or participation in a work
release or halfway house program.
(i) Resumption upon release--(1) No apportionment. If there was no
apportionment at the time of release from incarceration, the released
person's award shall be resumed the date of release from incarceration
if the Department of Veterans Affairs receives notice of release within
1 year following release; otherwise, the award shall be resumed the
date of receipt of notice of release. If there was an apportionment
award during incarceration, it shall be discontinued the date of last
payment to the apportionee upon receipt of notice of release of the
incarcerated person. Payment to the released person shall then be
resumed at the full rate from date of last payment to the apportionee.
Payment to the released person from date of release to date of last
payment to the apportionee shall be made at the rate which is the
difference between the released person's full rate and the sum of:
(i) The rate that was payable to the apportionee; and
(ii) The rate payable during incarceration.
(2) Apportionment to a dependent parent. An apportionment made to a
dependent parent under this section cannot be continued beyond the
veteran's release from incarceration unless the veteran is incompetent
and the provisions of Sec. 3.452(b)(1) are for application. When a
competent veteran is released from incarceration, an
[[Page 907]]
apportionment made to a dependent parent shall be discontinued and the
veteran's award resumed as provided in paragraph (i)(1) of this
section.
* * * * *
PART 21--VETERAN READINESS AND EMPLOYMENT AND EDUCATION
Subpart A--Veteran Readiness and Employment
0
16. The authority citation for part 21, subpart A, continues to read as
follows:
Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in
specific sections.
Sec. 21.330 [Removed and Reserved]
0
17. Remove and reserve Sec. 21.330.
[FR Doc. 2026-00237 Filed 1-8-26; 8:45 am]
BILLING CODE 8320-01-P
</pre></body>
</html>Indexed from Federal Register on January 9, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.