When military service members in Tampa are preparing for marriage, one of the most important considerations is how to protect their military retirement in the event of divorce. For many, this means entering into a prenuptial agreement that addresses the division—or exclusion—of future military retired pay. A common question arises: Can you waive military retirement division in a prenup under Florida law? The answer is yes—but it requires precise drafting, a thorough understanding of both Florida and federal laws, and strict adherence to procedural requirements. A knowledgeable Tampa divorce lawyer can help military families craft enforceable agreements that protect retirement interests and withstand scrutiny in court.
Military Pensions as Marital Property in Florida
Under Florida law, any portion of military retirement benefits earned during the marriage is considered marital propertyand subject to equitable distribution in a divorce. This means that, absent a valid agreement to the contrary, the court may award the non-military spouse a share of the service member’s retired pay.
This treatment applies regardless of when the service member entered the military, when they became eligible for retirement, or whether they are actively receiving payments at the time of divorce. If the retirement benefit accrued during the marriage, it is subject to division.
However, Florida also recognizes the enforceability of valid prenuptial agreements, which can override default marital property rules. A Tampa divorce lawyer must analyze whether a particular prenup effectively waives military retirement rights—and whether that waiver is enforceable under federal and state law.
The Role of the Uniformed Services Former Spouses’ Protection Act (USFSPA)
The Uniformed Services Former Spouses’ Protection Act (USFSPA) is a federal law that governs how state courts can divide military retired pay in divorce. The USFSPA allows—but does not require—state courts to treat disposable retired pay as marital property.
Importantly, the USFSPA:
- Permits states to apply their own equitable distribution laws to military pensions,
- Establishes how the Defense Finance and Accounting Service (DFAS) may make direct payments to former spouses, and
- Allows service members and spouses to enter into agreements about how retirement will be treated in divorce.
This means that, under USFSPA, a prenuptial agreement may validly waive the division of military retirement, provided it is enforceable under state law.
A Tampa divorce lawyer must ensure the prenup complies with both Florida contract law and USFSPA rules in order for the waiver to be upheld.
Enforceability of Prenups in Florida
Florida Statute § 61.079 governs the validity of prenuptial agreements. A prenup is enforceable if:
- It is in writing,
- It is signed voluntarily by both parties,
- Each party provides a fair and reasonable disclosure of their financial situation unless disclosure is waived in writing,
- It is not the product of fraud, duress, coercion, or overreaching, and
- It does not violate public policy.
If these criteria are met, courts will generally uphold the agreement—including provisions related to the waiver of military retirement benefits. However, courts will closely scrutinize any agreement that appears one-sided or contains ambiguous language.
A Tampa divorce lawyer will ensure that a military retirement waiver clause is not buried in fine print, unclear in scope, or based on incomplete financial disclosure.
Specific Language for Waiving Military Retirement
A waiver of military retirement in a prenup must be clear, specific, and unambiguous. Generic language stating that “each party waives rights to the other’s retirement” may not be sufficient to exclude military retired pay.
Effective waiver provisions include:
- Identification of the service member’s military branch and anticipated retirement benefits,
- Acknowledgment that the benefit is or may become marital property under Florida law,
- A knowing and voluntary waiver of any claim to military retired pay, including rights under the USFSPA,
- Language stating that the waiver applies even if benefits increase during the marriage,
- A statement that the non-military spouse has had the opportunity to consult counsel.
The more detailed the language, the more likely a Florida court will uphold the waiver. A Tampa divorce lawyer can draft custom language tailored to the specific service branch, career stage, and intentions of the parties.
Timing of the Agreement
To be effective as a prenuptial agreement, the waiver must be signed before the marriage. Postnuptial waivers are allowed under Florida law, but they are subject to even higher scrutiny and may require stronger disclosure and procedural safeguards.
If the agreement is signed shortly before the wedding, the court may inquire into whether either party felt pressured or lacked time to review the terms. Ideally, the prenup should be signed well in advance of the wedding and with both parties having independent legal counsel.
A Tampa divorce lawyer can help ensure the waiver is executed in a way that minimizes the risk of future challenge.
Addressing Survivor Benefit Plan (SBP) Rights
One often-overlooked element of military retirement is the Survivor Benefit Plan (SBP), which provides continued income to a spouse or former spouse after the service member’s death.
If the parties wish to waive military retirement division in the prenup, they should also consider:
- Whether the non-military spouse waives any claim to SBP coverage,
- Whether the service member is prohibited from electing SBP for the spouse,
- Whether life insurance or other substitute benefits will be used in place of SBP.
The waiver of SBP rights should be addressed separately from the retirement waiver to avoid confusion. A Tampa divorce lawyer will ensure both issues are treated with the attention they deserve.
Impact of a Waiver on Direct DFAS Payments
Even when a spouse is entitled to a share of the military pension, they cannot receive direct payment from DFAS unless the parties meet the 10/10 rule: 10 years of marriage overlapping with 10 years of creditable military service.
If a waiver is valid, DFAS will not issue any payments to the former spouse, regardless of the 10/10 rule. However, if the waiver is unclear, a court may award benefits and order the service member to pay them directly—even if DFAS won’t.
This is why clarity in the prenup is essential. A Tampa divorce lawyer will ensure that any waiver is not only enforceable but also precludes confusion or unintended obligations.
Challenging the Waiver in Divorce
If a divorce is filed and one spouse challenges the military retirement waiver in the prenup, Florida courts will analyze:
- Whether the agreement was signed voluntarily,
- Whether full and fair financial disclosure was made,
- Whether the waiver was knowing and specific,
- Whether enforcing the waiver would be unjust or unconscionable.
Courts are generally reluctant to invalidate prenups unless there is clear evidence of unfairness, fraud, or lack of understanding. However, ambiguous language or incomplete disclosure may open the door to litigation.
A Tampa divorce lawyer may be called upon to defend the waiver or seek its invalidation, depending on whom they represent.
Practice Considerations for Military Families
When drafting a prenup involving military retirement, the parties should consider:
- The current military pay grade and expected years of service,
- Whether the service member has already vested in retirement eligibility,
- Whether reserve or National Guard points have been accumulated,
- Potential disability offsets that may affect retirement value,
- SBP, TSP (Thrift Savings Plan), and VA disability coordination.
Military retirement is not a simple asset. Its valuation, distribution, and protection involve multiple systems and agencies. A Tampa divorce lawyer will consider each layer of military compensation and how it interacts with the agreement.
Can You Partially Waive Military Retirement?
Yes. Some prenuptial agreements include a partial waiver, in which the non-military spouse agrees to a fixed percentage or capped amount of the pension, rather than a full waiver.
This can be useful where:
- The marriage is expected to last through the service member’s retirement eligibility,
- The parties want to acknowledge contributions made during the marriage but limit exposure,
- The service member agrees to designate the spouse as a partial beneficiary under SBP.
A Tampa divorce lawyer can help structure this type of clause and make sure it aligns with the client’s goals.
Waiver and Disability Benefits
Military retirees may waive a portion of their retirement pay to receive VA disability compensation. This decision can reduce the former spouse’s share of retirement payments, since VA benefits are not divisible in divorce.
Some prenups include indemnification provisions requiring the service member to reimburse the spouse if such an election occurs. However, these provisions can be controversial and subject to challenge under federal law.
A Tampa divorce lawyer can include alternative remedies in the prenup to address these situations, such as offset payments or life insurance coverage.
FAQ: Military Retirement Waivers in Prenuptial Agreements
Q: Can I legally waive my right to my spouse’s military retirement in a prenup?
A: Yes, Florida law allows you to waive that right in a properly executed prenuptial agreement.
Q: Is the waiver enforceable if I didn’t know the value of the retirement?
A: If you did not receive fair disclosure or waived it in writing, the waiver may be challenged. Full financial transparency strengthens enforceability.
Q: What if we sign a prenup before my spouse enters the military?
A: You can still waive rights to future military retirement, but the waiver must reference anticipated military service and be sufficiently specific.
Q: Can I still receive part of the Survivor Benefit Plan if I waive retirement?
A: Not unless the prenup explicitly preserves SBP rights. Waiving retirement generally includes waiving SBP unless otherwise stated.
Q: What happens if we divorce and I change my mind about the waiver?
A: Courts will enforce the waiver unless you prove it was signed under duress, lacked disclosure, or is unconscionable.
Q: Does the 10/10 rule matter if I waived my rights?
A: No. The 10/10 rule applies only to DFAS direct payments. If you waived your rights, the rule is irrelevant.
Q: Can I waive only part of the military retirement?
A: Yes. A partial waiver is permitted if it is clearly expressed in the agreement.
Q: Is a prenup required to waive military retirement?
A: No, but it is the most reliable way to do so before marriage. Postnuptial agreements are also possible but harder to enforce.
Q: What if my spouse later waives retirement to get VA disability?
A: If that reduces your share, you may not have a remedy unless the prenup includes indemnity or offset provisions.
Q: Should both parties have lawyers before signing a prenup?
A: It is strongly recommended. Having independent counsel makes the agreement more defensible and reduces the chance of later challenges.
The McKinney Law Group: Tampa Military Divorce Attorneys Focused on Clear Guidance and Real Outcomes
Military divorce comes with unique legal challenges. At The McKinney Law Group, we give service members and their spouses honest answers and strategic advice to help them navigate Florida divorce law with clarity and control.
We assist with:
✔ Understanding how military service affects your divorce rights
✔ Preparing for the division of military pensions and benefits
✔ Protecting your parenting time during deployments or relocations
✔ Managing jurisdictional issues tied to PCS orders
✔ Creating a forward-looking plan with stability and confidence
Call 813-428-3400 or email [email protected] to schedule a consultation with a Tampa military divorce attorney.