In a Florida divorce involving military families, one of the most frequent points of confusion is the relationship between military retirement division and alimony. Many service members and their spouses assume that if a military pension is divided, the recipient spouse is not eligible for alimony—or vice versa. That assumption is incorrect.
Florida law treats military pensions and alimony as distinct legal issues. One is the division of marital property(equitable distribution), and the other is based on financial need and ability to pay (support). As a result, a military spouse may be awarded both a share of the service member’s military retirement and alimony—depending on the circumstances of the case. A knowledgeable Tampa military divorce lawyer can help navigate these overlapping issues and ensure the outcome is both fair and lawful.
This article explains when a military spouse can receive alimony in addition to a pension division, how Florida courts evaluate these claims, and what legal strategies are available for service members and spouses alike.
Understanding the Two Legal Categories: Pension vs. Alimony
In a Florida divorce, the court addresses two major financial areas:
- Equitable distribution of marital assets and liabilities, including retirement benefits,
- Support obligations, such as child support and spousal support (alimony).
Military pensions, like civilian retirement accounts, are subject to equitable distribution. If part of the pension was earned during the marriage, that portion is generally considered marital property and may be divided accordingly.
Alimony, by contrast, is not a property right. It is based on one spouse’s need and the other’s ability to pay, and is meant to provide financial support post-divorce. It serves a different legal function than pension division.
A qualified Tampa military divorce lawyer will ensure that both categories are analyzed separately and that the court does not treat pension division as a replacement for spousal support when one is clearly warranted.
Florida Law on Alimony
Florida Statutes § 61.08 governs alimony. The court must make a factual determination about:
- Whether either party has an actual need for alimony, and
- Whether the other party has the ability to pay.
If both are established, the court must then determine the proper type, duration, and amount of alimony, considering statutory factors such as:
- Standard of living established during the marriage,
- Duration of the marriage,
- Age and physical condition of both spouses,
- Financial resources of each party (including marital and non-marital assets),
- Earning capacities and employability,
- Contributions to the marriage (including homemaking, child care, education),
- Tax consequences of alimony,
- Any other factor necessary for equity and justice.
The existence of a military pension may affect some of these factors, but it does not eliminate the court’s authority to award alimony.
A Tampa military divorce lawyer will help prepare the necessary evidence to support or challenge alimony claims under these criteria.
Duration of Marriage and Presumptions in Alimony
Under Florida law:
- A short-term marriage is fewer than 10 years,
- A moderate-term marriage is between 10 and 20 years,
- A long-term marriage is 20 years or more.
There is a rebuttable presumption in favor of awarding durational or permanent alimony in long-term marriages. If the service member earned a significant portion of the military pension during a long-term marriage, the court is likely to:
- Award a share of the pension in equitable distribution, and
- Consider alimony if there’s a financial disparity between the parties.
A Tampa military divorce lawyer can argue for or against this presumption depending on the circumstances, and may propose alternatives such as lump-sum buyouts or rehabilitative alimony instead of monthly spousal support.
The Role of Military Retirement in Alimony Calculations
Military pensions are considered a source of income for the service member. Once the pension begins paying out—typically after 20 years of creditable service and retirement—the income may be used to calculate:
- The service member’s ability to pay alimony,
- The receiving spouse’s financial resources, if they are receiving a share of the pension.
In this way, military pensions overlap with the alimony analysis, but they do not replace it. Receiving a portion of the pension does not automatically meet the statutory need for alimony—especially if:
- The former spouse has no other source of income,
- The pension does not begin paying out for years,
- The receiving spouse was financially dependent during the marriage.
A Tampa military divorce lawyer will consider both current need and future retirement income in determining whether alimony is still required.
Common Scenarios Where Both Pension and Alimony Are Awarded
Several fact patterns may support an award of both pension division and alimony:
1. Delayed Pension Payouts
The military spouse is still on active duty and will not retire for 5–10 more years. The non-military spouse is unable to wait that long and needs financial support immediately.
In this case, the court may:
- Divide the marital portion of the pension in equitable distribution (to be paid upon retirement),
- Award bridge-the-gap or rehabilitative alimony to help the former spouse become financially independent in the short term.
2. Disparity in Income and Earning Capacity
The non-military spouse may have sacrificed career opportunities to raise children, relocate for PCS orders, or maintain the household. Even if that spouse receives a share of the military pension, their future earning potential may be significantly lower.
The court may award:
- A portion of the pension, plus
- Durational or even permanent alimony, especially in long-term marriages.
3. Post-Retirement Divorce
The service member has already retired, and the non-military spouse receives a monthly share of the pension. However, that amount may be insufficient to cover living expenses due to inflation, health problems, or other economic changes.
In these cases, the court may supplement the pension award with ongoing alimony, particularly if the recipient spouse is elderly or disabled.
A Tampa military divorce lawyer will tailor the alimony request to the specific financial landscape of the case and the long-term stability of both parties.
What if the Military Spouse Is Already Paying Alimony from a Prior Marriage?
If the service member is already paying alimony to a former spouse, the court will consider that obligation as part of the ability to pay analysis. It does not preclude an additional alimony award, but it may limit the amount or duration.
Florida courts must ensure that alimony awards are reasonable and do not exceed the payor’s ability to meet their own needs. This is particularly important in military cases where retirement income may be the primary source of support.
A Tampa military divorce lawyer can present a detailed financial affidavit and request income and expense documentation to assess how additional alimony affects the service member’s budget.
Can a Former Spouse Waive Alimony but Still Receive a Pension Share?
Yes. It is not uncommon for the parties to agree that the non-military spouse will receive:
- A share of the military pension,
- A lump sum from marital assets (e.g., house equity or bank account),
- But no ongoing alimony.
This is often done when:
- The marriage was relatively short,
- The spouse is self-supporting,
- The pension payout will begin soon,
- The parties want to avoid future entanglement.
Waiver of alimony must be clearly stated in the marital settlement agreement and accepted by the court. A Tampa military divorce lawyer can ensure the waiver language is enforceable and not subject to later modification.
VA Disability and Its Impact on Alimony
Service members often waive a portion of their retired pay to receive VA disability compensation, which is not divisibleunder federal law. This can reduce the amount of pension available to the former spouse and may create a shortfall.
In these cases, the court may use alimony as a workaround to address the inequity. While the court cannot divide VA benefits, it can:
- Consider them as income when calculating ability to pay,
- Award alimony based on financial need, even if pension income is reduced,
- Require direct payments or indemnity clauses to offset lost retirement income.
A Tampa military divorce lawyer will analyze the impact of disability elections and advocate for a fair and legally enforceable result.
Survivor Benefit Plan (SBP) and Alimony Considerations
If the court awards a portion of the military pension, the former spouse may also request Survivor Benefit Plan (SBP)coverage. SBP provides continued payments after the service member’s death, but it requires:
- A specific court order,
- Timely election by the service member or deemed election by the former spouse.
In some cases, the court may use alimony to supplement retirement income where SBP is not elected or available. This protects the former spouse from financial insecurity after the service member’s death.
A Tampa military divorce lawyer will coordinate pension division, SBP election, and alimony in a comprehensive judgment that ensures long-term financial protection.
Tax Consequences of Receiving Both Pension and Alimony
Military pensions are taxable income for the receiving spouse. Traditional alimony, if awarded in pre-2019 divorce cases, is tax-deductible to the payor and taxable to the recipient.
For post-2018 divorces, alimony is no longer deductible for the payor nor taxable to the recipient under federal law. This has led some courts to favor property distribution over alimony, but only when feasible.
Receiving both a pension share and alimony may affect:
- Tax brackets,
- Eligibility for public benefits,
- Filing status.
A Tampa military divorce lawyer can help you understand the financial implications and structure a plan that minimizes tax burdens.
Settlement Strategy: Combining Alimony and Pension Division
Every case is different. Some divorces may call for a hybrid solution, where the parties agree to:
- Divide the pension per the coverture formula,
- Award a finite period of rehabilitative alimony,
- Use lump-sum payments to buy out alimony,
- Adjust SBP and TSP allocations to balance overall value.
These options give both parties more control than leaving the decision to a judge. A Tampa military divorce lawyer will help negotiate a settlement that accounts for:
- Present needs,
- Future retirement income,
- Life insurance or survivorship protections,
- Tax and timing issues.
Modification and Enforcement of Alimony and Pension Awards
Both alimony and pension awards have unique modification rules:
- Alimony may be modified based on substantial change in circumstances (e.g., income change, remarriage, retirement),
- Pension division is generally not modifiable unless fraud, mistake, or misrepresentation occurred.
If a party fails to pay alimony, the court may:
- Issue income withholding orders,
- Hold the payor in contempt,
- Garnish wages, including DFAS pay if the obligor is still active-duty.
A Tampa military divorce lawyer can file motions to enforce or modify alimony and coordinate pension division orders through DFAS to ensure compliance.
FAQ: Alimony and Pension in Florida Military Divorce
Q: Can a military spouse receive both alimony and part of the pension?
A: Yes. Florida law allows both, depending on need and marital history.
Q: Is a pension considered income when calculating alimony?
A: Yes. Military retirement is considered income and affects ability to pay.
Q: What if my ex already receives pension payments—can I still get alimony?
A: Possibly. If the pension is not sufficient to meet financial needs, alimony may be awarded in addition.
Q: Can alimony be waived if I’m getting the pension?
A: Yes, by agreement. But the waiver must be clearly stated and approved by the court.
Q: What happens if my ex waives retirement for VA disability?
A: Your pension share may decrease, but the court may award or increase alimony to compensate.
Q: Will remarriage end alimony but not the pension?
A: Correct. Remarriage typically terminates alimony but not your share of the divided pension.
Q: Can I modify alimony if financial circumstances change?
A: Yes. Alimony is modifiable unless specifically waived or designated as non-modifiable in the final judgment.
Q: What if the pension doesn’t start paying for 10 years?
A: The court may award bridge-the-gap or rehabilitative alimony in the interim.
Q: Do courts treat pensions and alimony separately?
A: Yes. They are separate legal issues governed by different statutes and standards.
Q: Who can help me determine the right strategy?
A: A Tampa military divorce lawyer with experience in both alimony and military retirement division is essential.
The McKinney Law Group: Legal Advocacy for Military Divorce in Tampa
Military divorces require a thorough understanding of both Florida law and federal military regulations. At The McKinney Law Group, we help service members and military spouses in Tampa protect their rights and secure their future with reliable legal strategies.
We assist with:
✔ Equitable division of military retirement, pensions, and benefits
✔ Custody arrangements that account for relocations and deployments
✔ Jurisdictional analysis and guidance based on duty station
✔ Enforcement and modification of orders across state lines
✔ Proactive planning for long-term financial and parental stability
Call 813-428-3400 or email [email protected] to consult with a Tampa military divorce attorney.