Recitation as required by CPLR 2219(a) of the papers considered in the review of Defendant's Order to Show Cause.

_____________________________________________________________ _________________

The following papers numbered 1 to 5 were marked fully submitted on the 27th day of November, 2012:

Numbered

Notice of Motion,

with Supporting Papers and Exhibits1

(dated September 19, 2012)

Affidavit in Opposition,2

with Opposition and Supporting Papers and Exhibits

(dated October 1, 2012)

By Notice of Motion dated September 19, 2012 Husband seeks an Order declaring the disability benefits payable to him by Social Security and by the Veterans Administration to be separate property not to be considered for purposes of equitable distribution or maintenance. Husband argues that these benefits are not subject to consideration as the Uniformed Services Former Spouse's Protection Act (USFSPA) declares them to be separate property. 10 U.S.C. § 1408 (2009). Wife Opposes Husband's application on the grounds of justiciability, and in the alternative by claiming that Husband's benefits should be considered for purposes of maintenance.

A.Justiciablity

Wife argues that the Court cannot address Husband's application because it is not justiciable. An issue is justiciable when its resolution will have a practical effect on the conduct of the parties. See New York Public Interest Research Group, Inc. V. Carey, 42 NY2d 527 (1977). Justiciablity is a question of standing and must be addressed before considering the merits, even if not raised by the parties. See The Society of the Plastics Industry, Inc. v. County of Suffolk, 77 NY2d 761 (1991). A Court cannot decide an issue on which the moving party lacks a "sufficiently cognizable stake in the outcome." Community Board 7 of the Borough of Manhattan v. Schaffer, 84 NY2d 148 (1994). Courts are prohibited from offering advisory opinions where their decision "may never resolve any actual dispute or controversy." Hirschfeld v. Hogan, 60 AD3d 728 (2d Dept. 2009).

In the case at bar Husband has a stake in the outcome of the motion as his disability payments are at issue in the underlying action for divorce. While no application for temporary maintenance has been made, both maintenance and equitable distribution are issues that will ultimately be resolved at trial. As such, the Court will consider Husband's application as a motion in limine to limit the issues to be adjudicated at trial, and the evidence necessary to determine those issues. See Bloch v. Bloch, 10 Misc 3d 1058(A) (Kings Cty. Sup. Ct. 2005).

B.Veterans Disability Benefits

The Parties were married on June 21, 1980. Prior to the marriage Husband served in the United States Marine Corps from 1965 until 1969. As a result of his miliary service Husband receives monthly veteran's disability benefits. Husband argues that these benefits are not subject [*3]to consideration by the Court for purposes of equitable distribution, or maintenance, and should be deemed separate property under the Uniformed Services Former Spouse's Protection Act (hereinafter "USFSPA"). Wife argues that the Court should consider Husband's Veteran's Disability payments for purposes of maintenance.

While the Second Department has yet to address the issue, the Third and Fourth Departments have held that state courts are prohibited from distributing veteran's disability benefits in an action for divorce. See Hoskins v. Skojec, 265 AD2d 706 (3d Dept. 1999), lv denied 94 NY2d 758 (2000); See also Newman v. Newman, 248 AD2d 990 (4th Dept. 1998). While disability benefits obtained from other sources may be considered for purposes of maintenance, veteran's disability payments are precluded from consideration. 10 U.S.C. §1408; Carl v. Carl, 58 AD3d 1036 (3d Dept. 2009).

Wife argues that Nizolek v. Nizolek, 93 AD3d 934 (3d Dept. 2012) is controlling on the issue of veteran's disability benefits. In Nizolek, the Third Department held that the Family Court, deciding an application for spousal support in an ongoing marriage, may consider veteran's disability benefits "under the broad language of Family Court Act §412". However, the Court expressly distinguished an application for "spousal support" under the Family Court Act from an application for "maintenance" under Domestic Relations Law §236(B).

In an action for divorce the Court may not order the allocation of veteran's disability benefits absent a contractual agreement between the parties. See Mills v. Mills, 22 AD3d 1003 (3d. Dept. 2005); Hoskins, Supra at 707. As such, Husband's motion is granted to the extent that his veteran's disability benefits are not to be included in the marital estate at trial for purposes of equitable distribution or maintenance.

C.Social Security Disability Benefits

Husband, in addition to veteran disability benefits, also receives social security disability

Social Security Disability Benefits are separate property and are not subject to equitable distribution. DRL § 236 (B) (1) (d) (2); Miceli v. Miceli, 78 AD3d 1023 (2d Dept. 2010). However, Social Security Disability Benefits, unlike veteran's disability benefits, are to be considered by the Court when determining a payor spouses ability to pay maintenance. See Cerabona v. Cerabona, 302 AD2d 346 (2d Dept. 2003); See also Carl, Supra at 1037.

For the reasons set forth above, Husband's motion, considered by this Court as a motion in limine, is granted. Husband's veteran's disability benefits are separate property for purposes of equitable distribution and maintenance. However, Husband's Social Security Disability benefits, [*4]while separate property for purposes of equitable distribution, are subject to consideration by the Court to determine his ability to pay maintenance.

This constitutes the Decision and Order of the Court.

All issues not decided herein are deferred to trial.

Dated: January 15, 2013

HON. Catherine M. DiDomenico