For former spouses of military members, obtaining a court order awarding a share of military retired pay is a significant victory in their Florida divorce. It represents recognition of their contributions during the marriage and provides crucial financial support for the future. However, getting the order is only half the battle. The next, equally critical mission is ensuring that you actually receive those payments reliably and consistently.
While some arrangements rely on the military retiree receiving their full pension and then paying the former spouse directly, this method is fraught with potential problems, especially in high conflict situations. What if the retiree pays late? What if they move out of state? What if they simply refuse to pay? Enforcement can become a constant, expensive struggle requiring repeated trips back to court with your Tampa military divorce lawyer.
Fortunately, federal law provides a much more secure mechanism: direct payment from the Defense Finance and Accounting Service (DFAS). When specific criteria are met, DFAS, the agency responsible for paying military retirees, can be legally directed to divide the payment before it ever reaches the retiree, sending one portion to the service member and the designated share directly to the former spouse’s bank account each month.
Many people have heard of the infamous “10/10 Rule” in relation to these direct payments, often mistakenly believing it dictates who is entitled to a share. While the 10/10 Rule is indeed a crucial factor for direct payment eligibility, it is only one piece of a complex puzzle. Securing reliable direct payments from DFAS requires more than just meeting the 10/10 threshold; it demands a meticulously drafted Florida court order that complies with stringent federal regulations and a precise application process after the divorce is final. Understanding this process, avoiding common pitfalls, and ensuring your court order contains the necessary “magic language” is paramount. This is a technical, unforgiving area where the expertise of a seasoned Tampa military divorce lawyer is invaluable.
Recapping the Basics: USFSPA and Florida’s Authority
Before diving into DFAS payments, let’s briefly revisit the foundation. The Uniformed Services Former Spouses’ Protection Act (USFSPA) is the federal law that grants Florida courts the authority to treat disposable military retired pay earned during the marriage as marital property subject to equitable distribution. Florida Statute § 61.075 governs this division, typically aiming for a fair split (often 50/50) of the marital portion.
Crucially, state courts can only divide disposable retired pay – the gross pay less certain deductions like VA disability waivers and SBP premiums. Your right to a share comes from Florida law, enabled by the USFSPA.
The 10/10 Rule: Payment Method, Not Entitlement
Let’s clear up the biggest myth right away. The “10/10 Rule” does not determine if you get a share of the pension. A Florida court can award you a share of the military retirement earned during the marriage even if you were married for only five years. Your entitlement stems from state equitable distribution laws.
So, what is the 10/10 Rule? It is a specific eligibility requirement set by the USFSPA that dictates whether DFAS is authorized to make direct payments to the former spouse.
To meet the 10/10 Rule, there must have been:
- At least 10 years of marriage between the parties.
- Overlapping with at least 10 years of the member’s creditable military service.
- Creditable Service: This means service that counts towards retirement eligibility. Active duty time generally counts day for day. For Guard/Reserve members, it involves calculating qualifying points. Verifying this overlap precisely is essential.
- Overlap is Key: It is not enough to have a 10 year marriage and 10 years of service; those periods must have coincided for 10 full years.
What Happens If You Meet the 10/10 Rule? If your marriage meets the 10/10 overlap, and your court order is drafted correctly, you are eligible to apply for and receive your court awarded share directly from DFAS each month. This provides security, reliability, and avoids relying on your ex spouse’s cooperation.
What Happens If You DON’T Meet the 10/10 Rule? You are still entitled to the share awarded by the Florida court. However, DFAS will not make direct payments to you. The retiree will receive their full monthly payment, and they are legally obligated by the court order to pay your share directly to you (e.g., by check, direct deposit).
- The Risk: This method carries significant risk. If the retiree fails to pay, your only recourse is to go back to the Florida court and file an enforcement or contempt action, which can be costly and time consuming, especially if the retiree lives out of state. This is why meeting the 10/10 rule is highly advantageous for the former spouse’s financial security. A Tampa military divorce lawyer will always strive to secure direct payments if eligible.
The Blueprint for Payment: Why Your Court Order is Everything
Meeting the 10/10 rule simply opens the door for direct DFAS payments. Walking through that door requires a Florida court order (usually the Final Judgment or a specific Military Pension Division Order) that acts as a precise blueprint meeting DFAS’s strict administrative requirements.
DFAS is a massive federal bureaucracy processing payments for millions of individuals. They do not interpret vague language or resolve ambiguities. They follow the letter of the order and their regulations. If your order is missing required information or contains language that conflicts with federal law, it will be rejected.
Getting the language right the first time is crucial to avoid months or even years of delays and corrective legal action. A Tampa military divorce lawyer experienced with DFAS requirements knows that meticulous drafting at the outset saves immense trouble later.
“Magic Language”: Essential Elements Your Order MUST Contain for DFAS Acceptance
To be considered a “qualifying court order” acceptable for processing direct payments under the USFSPA, your Florida divorce order must contain specific, unambiguous information. Even slight deviations can cause rejection.
1. Clear Identification of Parties:
- Service Member: Full legal name, full Social Security Number (SSN), and current mailing address.
- Former Spouse (Payee): Full legal name, full Social Security Number (SSN), and current mailing address. (Accuracy is paramount; typos in names or SSNs are common reasons for rejection).
2. Statement of Jurisdiction Under USFSPA: The order must contain an explicit statement confirming the Florida court has jurisdiction over the service member based on one of the grounds permitted by the USFSPA:
- Residence: The service member resides in Florida (for reasons other than military assignment).
- Domicile: The service member’s legal domicile (permanent home of record) is Florida.
- Consent: The service member consented to the Florida court’s jurisdiction (e.g., by filing an answer or signing the agreement).
- Example Language: “This Court has jurisdiction over the service member, [Name], pursuant to the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408, based upon the service member’s legal domicile within the State of Florida [OR residence OR consent].” Failure to include this specific USFSPA jurisdictional statement is a frequent cause of rejection.
3. Clear Award of a Share of Disposable Retired Pay: The order must clearly state the former spouse is being awarded a portion of the member’s disposable retired pay.
- Specify “Disposable Retired Pay”: Using this exact term or explicitly referencing the definition in 10 U.S.C. § 1408 is critical. Orders attempting to divide “gross retired pay” will be rejected because federal law only permits division of the disposable amount (gross pay less VA waiver, SBP costs, etc.).
- State the Award Clearly: The award must be expressed as:
- A Fixed Dollar Amount: (e.g., “$1,200 per month”). Less common for pensions due to COLAs, but sometimes used.
- A Percentage: (e.g., “35% of the member’s disposable retired pay”).
- A Formula: Often the most accurate way, especially using the coverture fraction. If a formula is used, it must be explicitly written out in the order itself. Simply referencing “50% of the marital share” without defining how that share is calculated within the order may lead to rejection. DFAS will not perform calculations not explicitly stated. A Tampa military divorce lawyer ensures this formula is precise.
- Example Formula Language: “The Former Spouse is awarded a percentage of the service member’s disposable retired pay, to be calculated as follows: Fifty percent (50%) multiplied by a fraction, the numerator of which is [Number] months of marriage overlapping creditable military service (from [Date of Marriage] to [Date of Filing/Separation]), and the denominator of which is the service member’s total number of months of creditable military service at the time of retirement.”
4. Treatment of Cost of Living Adjustments (COLAs): Military retired pay typically increases annually with COLAs. The order should explicitly state whether the former spouse’s share is entitled to receive proportionate COLAs.
- Standard Language: “The Former Spouse’s share shall be increased proportionately by any future Cost of Living Adjustments (COLAs) made to the service member’s retired pay.” Omitting this can result in the former spouse receiving a flat amount forever, missing out on crucial inflation adjustments.
5. Survivor Benefit Plan (SBP) Provisions (if applicable): If the court orders the service member to elect former spouse SBP coverage, this should be clearly stated in the order submitted to DFAS, including the base amount for the SBP election and who is responsible for the premium costs. (Note: SBP election itself requires separate forms submitted within one year of the divorce).
6. Explicit Request for Direct Payment: If the 10/10 Rule is met, the order should contain a clear statement directing DFAS to make payments directly to the former spouse.
- Example Language: “Payments awarded herein shall be made directly from the Defense Finance and Accounting Service (DFAS) to the Former Spouse, [Name], beginning as soon as administratively feasible.”
7. Proper Signatures and Certification: The order must be signed by the Florida judge and bear an official court seal or certification stamp from the Clerk of Court confirming it is a true and correct copy.
Getting all these details perfect requires meticulous drafting. A Tampa military divorce lawyer will often have template language vetted through experience or work with a specialist to ensure DFAS compliance.
Common Reasons DFAS Rejects Pension Division Orders
Despite best efforts, orders are frequently rejected by DFAS, causing significant delays. Understanding these common pitfalls helps in avoiding them:
- Missing or Incorrect SSNs: Simple typos can halt the process.
- No USFSPA Jurisdictional Statement: Failure to explicitly state the basis for jurisdiction (residence, domicile, consent).
- Attempting to Divide Gross Pay: The order must specify division of disposable retired pay.
- Ambiguous Award Language: Using vague terms like “marital share” without defining the calculation formula within the order. DFAS will not look back at your underlying settlement agreement.
- Trying to Divide VA Disability / Include Indemnity: Language attempting to award a share of VA pay or requiring the member to reimburse for a VA waiver violates Mansell and Howell and will be rejected.
- COLA Omission: Failing to state COLAs apply to the former spouse’s share.
- Lack of Certification: Submitting a plain copy instead of a court certified copy.
- Conflicting Provisions: Internal inconsistencies within the order’s language.
- Attempting Garnishment Beyond USFSPA Limits: The USFSPA limits total garnishments (including property division, child support, alimony) from retired pay, typically to 50-65% of disposable earnings (a slightly different calculation). Orders exceeding these limits may be rejected or prorated.
Each rejection requires going back to the drawing board, potentially needing an amended court order, which means more legal fees and more waiting. Prevention through careful initial drafting by a knowledgeable Tampa military divorce lawyer is key.
The Post Divorce Mission: Applying for Direct Payments
Getting the perfect court order is step one. Step two is formally applying to DFAS to initiate the payments. This responsibility falls on the former spouse (or their attorney). DFAS does not automatically start payments just because a judge signed an order.
The Application Steps:
- Obtain Certified Copies: Get several certified copies of the Final Judgment or the specific Military Pension Division Order from the Clerk of Court in Hillsborough County (or wherever the divorce was finalized). Certification typically involves a raised seal or stamp.
- Complete DD Form 2293: Download and accurately complete the “Application for Former Spouse Payments from Retired Pay” (DD Form 2293). This form requires detailed information about both parties, the marriage, the military service, and the specific court order. Accuracy is crucial.
- Assemble the Package: Combine the completed DD Form 2293 with a certified copy of the relevant court order(s). Ensure all required signatures and certifications are present.
- Submit to DFAS: Mail the complete package to the correct DFAS Garnishment Law Directorate address (verify the current address on the DFAS website, as it can change). Sending via certified mail with return receipt requested is highly recommended.
- Wait for Processing: DFAS processing can take time – often 60 to 90 days, sometimes longer, especially if there are issues with the order. DFAS will notify both parties once processing begins and when payments are scheduled to start.
- Follow Up: If you do not receive confirmation within a reasonable period, follow up with DFAS. Your Tampa military divorce lawyer can often assist with this process or track the application’s status.
Crucial Timing: File the application as soon as possible after the divorce is final. Payments are generally not retroactive to the date of divorce but begin after DFAS processes the order. Delays in filing mean delays in receiving your funds.
What if DFAS Rejects Your Order?
If DFAS finds deficiencies, they will send a written notice to both parties (and often their attorneys) explaining exactly why the order cannot be processed. The notice will specify the required corrections.
At this point, you have no choice but to go back through the legal system:
- **Consult Your Tampa Military Divorce Lawyer: They will review the DFAS rejection letter and the original order to understand the problem.
- Stipulation or Motion: If the correction is simple and undisputed (like a typo), the lawyers may agree on a “Stipulated Amended Order.” If the issue requires clarification or there is disagreement, your lawyer will need to file a “Motion for Clarification” or “Motion for Amended Order” with the original Florida judge.
- Court Hearing (If Necessary): A hearing may be required for the judge to approve the amendment.
- Obtain New Certified Order: Get a certified copy of the amended order.
- Resubmit to DFAS: Send the amended, certified order back to DFAS, restarting their review process.
This corrective loop is frustrating, time consuming, and adds unnecessary legal expense. It underscores the immense value of having a Tampa military divorce lawyer meticulously draft the initial order to meet DFAS requirements from the start.
Conclusion: Secure Your Payments with Precision and Expertise
Direct payment of military retired pay from DFAS offers invaluable security and peace of mind for former spouses awarded a share in their Florida divorce. However, accessing this reliable payment stream requires more than just meeting the 10/10 Rule. It demands navigating a gauntlet of specific federal requirements centered around the language of your court order.
Ambiguities, omissions, or attempts to divide non divisible benefits will lead to rejection by DFAS, forcing you back into the costly and time consuming court process for corrections. The difference between a smooth transition to direct payments and months or years of frustrating delays often lies in the precision of the initial divorce decree or Military Pension Division Order.
Do not underestimate the technical complexities involved. Whether you are the service member ensuring the order is fair and legally compliant, or the former spouse seeking to secure your future financial stability, expert guidance is essential. Partner with an experienced Tampa military divorce lawyer who specializes in military retirement division. They possess the knowledge to draft DFAS compliant orders, manage the application process effectively, and troubleshoot any issues that arise, ensuring your court awarded share translates into reliable, direct payments. Secure your financial future by securing the right legal expertise. Choose your Tampa military divorce lawyer carefully. The experience of your Tampa military divorce lawyer matters. Rely on your Tampa military divorce lawyer.
Frequently Asked Questions (FAQ)
What is the 10/10 rule again? The 10/10 rule (10+ years of marriage overlapping 10+ years of creditable service) determines if DFAS is authorized to make direct payments of retired pay to a former spouse. It does not determine if the former spouse is entitled to a share – that’s decided by Florida law.
What form do I use to apply for DFAS direct payments? You need to complete and submit DD Form 2293, “Application for Former Spouse Payments from Retired Pay,” along with a certified copy of your divorce decree or specific pension division order. Your Tampa military divorce lawyer can assist with this.
How long does it take DFAS to start direct payments? After receiving a complete and acceptable application package, DFAS typically takes 60-90 days to process the order and initiate payments, though it can sometimes take longer.
What happens if DFAS rejects my court order? DFAS will send a letter explaining the deficiencies. You will need to work with your Tampa military divorce lawyer to obtain an amended or clarifying order from the Florida court addressing DFAS’s specific concerns and then resubmit it.
Can DFAS take child support or alimony directly from retired pay? Yes, DFAS can garnish military retired pay for child support and alimony obligations pursuant to a valid court order, subject to federal limitations (typically up to 50-65% of disposable earnings). This is a separate process from the division of retired pay as property under the USFSPA.
The McKinney Law Group: Advocating for Tampa’s Military Families
We understand the unique challenges military families face during divorce. Our team provides steady, compassionate legal counsel to help you protect your rights and build a secure future.
Call 813-428-3400 or email [email protected] to schedule your consultation.