Military families face unique challenges during divorce—especially when it comes to dividing military pensions. Service members and their spouses devote years to military life, often moving frequently, sacrificing civilian career growth, and navigating long periods of separation. When a divorce occurs, one of the most valuable marital assets may be the service member’s retirement pay. Properly valuing, dividing, and securing that pension requires careful planning, precise documentation, and a deep understanding of both federal law and Florida’s equitable distribution system.
Unlike civilian pensions, military retirement benefits are governed by federal statutes like the Uniformed Services Former Spouses’ Protection Act (USFSPA) and Department of Defense regulations. Florida courts have jurisdiction to divide military pensions in divorce, but doing so correctly requires strict adherence to procedural requirements. A Tampa divorce attorney experienced in military divorce matters can guide you through this highly technical and often misunderstood process.
The Basics of Military Retirement Pay
Military retirement pay is available to service members who serve at least 20 years on active duty or qualify under the Reserve Component Retirement system. It is a defined benefit pension plan that pays monthly income upon retirement, calculated as follows:
- Active Duty:
2.5% × Years of Creditable Service × Retired Base Pay - Reserve Component:
Calculated based on retirement points and age at eligibility (usually 60)
Retired pay is adjusted annually for cost-of-living increases and continues for life. For many families, this pension represents a significant portion of the marital estate.
A Tampa divorce attorney will evaluate the type, eligibility status, and projected value of the military pension at issue in the case.
Federal Law: The Uniformed Services Former Spouses’ Protection Act
The USFSPA is a federal law enacted in 1982 that authorizes state courts to treat disposable military retired pay as marital property and divide it during divorce. Key features of the USFSPA include:
- Allows division of “disposable retired pay” as property (not alimony)
- Requires a court order for division
- Authorizes direct payment from the Defense Finance and Accounting Service (DFAS)
- Protects a portion of retired pay from division in some cases
- Applies only to military retirement—not VA disability or combat-related special compensation (CRSC)
A Tampa divorce attorney ensures that any order dividing military retired pay complies with USFSPA guidelines and avoids errors that could delay or prevent payment.
The 10/10 Rule and Direct Payment
The so-called 10/10 rule refers to a requirement for direct payment of military pension division from DFAS to the former spouse. It does not affect whether the spouse is entitled to a share—it only determines whether DFAS will pay it directly.
To qualify for DFAS direct payment:
- The parties must have been married for at least 10 years, and
- The service member must have performed at least 10 years of creditable service during the marriage
If the marriage and service overlap for 10 years or more, DFAS will send the former spouse their share directly each month. If not, the service member must pay the spouse directly under the terms of the divorce order.
A Tampa divorce attorney will confirm whether the 10/10 rule applies and structure payment enforcement mechanisms accordingly.
Marital vs. Non-Marital Portion of the Pension
Florida courts divide only the marital portion of a military pension. The portion earned before the marriage is considered non-marital and not subject to division.
The marital portion is typically calculated using the coverture fraction:
(Years of service during the marriage ÷ Total years of service) × Final retired pay
For example, if the service member served 20 years and was married for 10 of those years, 50% of the pension is considered marital. The court can then award a portion (often 50%) of that marital share to the non-military spouse.
A Tampa divorce attorney will ensure accurate calculation of the coverture fraction and clearly state the award in the final judgment.
Disposable Retired Pay and Exclusions
Not all of a military retiree’s monthly pay is subject to division. The USFSPA defines disposable retired pay as:
- Gross retired pay
- Minus deductions for:
- VA disability compensation
- Civil service or other waivers
- Survivor Benefit Plan (SBP) premiums
- Court-ordered support or debt to the government
Importantly, if the retiree waives military retired pay to receive VA disability compensation, the waived portion is not divisible.
This creates tension when the non-military spouse is awarded a fixed percentage of the gross pension, and the retiree later waives part of that pay to receive tax-free VA benefits.
A Tampa divorce attorney can draft clauses to address this issue and may request indemnification or compensation if retired pay is reduced post-divorce.
Division Methods: Fixed Dollar vs. Formula Awards
When dividing military pensions, there are two primary methods for expressing the award:
1. Fixed Dollar Amount
- Specifies a set monthly payment (e.g., $1,000 per month)
- Simple, but not protected from inflation or changes in retired pay
- Risky if retired pay is lower than expected or partially waived
2. Formula (Percentage) Method
- Uses a coverture fraction with a percentage (e.g., “50% of the marital share”)
- Automatically adjusts for COLA and final retired pay
- Preferred by DFAS and more common in Florida courts
A Tampa divorce attorney will advise on the most appropriate method based on the service member’s status and the parties’ financial goals.
The Survivor Benefit Plan (SBP)
The Survivor Benefit Plan (SBP) is an annuity program that provides continuing income to a designated beneficiary after the retiree’s death. Without SBP, payments stop upon the service member’s death—even if the former spouse was receiving pension division.
Key points:
- SBP must be elected by the retiree at retirement
- Costs approximately 6.5% of the elected base amount
- Must be addressed in the divorce decree
- Election must be submitted to DFAS within one year of divorce
- Can be “spouse coverage,” “former spouse coverage,” or “former spouse with child” coverage
- Is irrevocable once established (with few exceptions)
Courts may require a service member to elect former spouse SBP coverage to secure the non-military spouse’s pension rights. The parties must also specify who pays the SBP premium.
A Tampa divorce attorney will include SBP provisions in the settlement or judgment and follow up to ensure timely DFAS enrollment.
Disability Pay and VA Waivers
Military retirees may waive a portion of their pension to receive tax-free VA disability compensation. This decision can reduce the amount of pension available for division, creating conflict with the non-military spouse’s award.
Because federal law prohibits division of VA disability pay, courts cannot order the service member to share it. However, Florida courts may:
- Award indemnity payments to compensate for lost pension
- Adjust alimony or property distribution accordingly
- Reopen judgments in extreme cases of fraud or manipulation
A Tampa divorce attorney will address VA offsets during settlement negotiations and draft protective language to maintain fairness.
Reservist Retirement and Points System
Reserve and National Guard pensions are based on a points system rather than years of service. Retired pay is not available until the service member reaches age 60.
The division of reservist pensions still follows the coverture formula but requires:
- Documentation of total career points
- Calculation of marital points earned during the marriage
- Application of the marital fraction to total retired pay
A Tampa divorce attorney can work with DFAS and military records offices to obtain the necessary documentation and prepare the court order properly.
Early Retirement and REDUX
Some service members choose early retirement through programs like:
- Temporary Early Retirement Authority (TERA)
- REDUX (Career Status Bonus with reduced pension)
These programs reduce the overall value of the pension. If the spouse’s award is based on a percentage, the benefit received will also be lower.
A Tampa divorce attorney can help negotiate additional assets or spousal support to offset reduced pension division in early retirement cases.
Military Divorce and Equitable Distribution in Florida
Florida courts use the principle of equitable distribution to divide marital assets. This does not require equal division—just a fair one.
When dividing military pensions, the court will consider:
- The length of the marriage
- The overlap between marriage and military service
- Each spouse’s contributions (financial and non-financial)
- The earning potential of each spouse
- Other assets awarded or waived
- The presence of a prenuptial or postnuptial agreement
A Tampa divorce attorney will present evidence and legal arguments to support an equitable share of military pension benefits based on these factors.
Enforcing Military Pension Orders
Once the divorce is final, the order dividing military retired pay must be submitted to DFAS. The order must:
- Clearly identify both parties
- Include the marriage dates
- State the award in an approved format
- Include SBP provisions (if applicable)
- Comply with USFSPA and DoD regulations
If the order is defective or unclear, DFAS will reject it.
A Tampa divorce attorney will prepare a Military Pension Division Order (MPDO) that meets all requirements and ensure timely submission to DFAS.
Addressing Military Pensions in a Prenuptial Agreement
Military personnel may use prenuptial or postnuptial agreements to:
- Designate military pension as non-marital
- Waive claims to SBP
- Define how retirement benefits will be divided
- Protect disability pay from inclusion in equitable distribution
Such agreements are generally enforceable in Florida, provided there is full disclosure, voluntariness, and no unconscionability.
A Tampa divorce attorney can draft or enforce these agreements to protect service members and their spouses.
FAQ
Q: Is a military pension considered marital property in Florida?
A: Yes, but only the portion earned during the marriage is considered marital and subject to division.
Q: Can a military pension be divided if we were married less than 10 years?
A: Yes. The 10/10 rule only affects whether DFAS will make direct payments—not whether the spouse is entitled to a share.
Q: What happens to the pension if the service member dies?
A: Without SBP coverage, payments stop. SBP must be elected during divorce to provide continued income to the former spouse.
Q: Can I get a share of VA disability benefits?
A: No. Federal law prohibits division of VA disability pay. However, Florida courts may provide other remedies if pension is reduced due to VA waivers.
Q: How is a reservist’s pension divided in divorce?
A: By calculating the fraction of retirement points earned during the marriage and applying it to the total retirement benefits.
Q: Do I need a court order to divide a military pension?
A: Yes. A properly worded Military Pension Division Order must be submitted to DFAS to enforce the division.
Q: What if the service member refuses to pay?
A: The court can order garnishment, contempt sanctions, or enforce the judgment through other legal means.
Q: Can military retirement be used to calculate alimony?
A: Yes. While it’s divided as property, the income from retired pay is considered when calculating support obligations.
Q: What if the service member retires early or receives reduced pay?
A: The court can consider this in settlement negotiations and may award additional assets or support to the spouse.
Q: How do I protect my share of the military pension?
A: Work with a Tampa divorce attorney to obtain a clear order, elect SBP coverage, and ensure compliance with all DFAS requirements.
Dividing a military pension is one of the most complex aspects of divorce for service members and their spouses. From federal restrictions and survivor benefits to valuation methods and jurisdictional rules, the legal landscape is filled with pitfalls that can undermine your financial future. Whether you’re protecting your retirement or seeking your fair share, an experienced Tampa divorce attorney can help you navigate the process with precision, ensure all orders comply with federal regulations, and secure a settlement that reflects the sacrifices and contributions made during the marriage. When handled correctly, dividing military pensions doesn’t have to be a battle—it can be a path to fairness and financial clarity.
The McKinney Law Group: Divorce Lawyers in Tampa Who Value Respectful Resolutions
At The McKinney Law Group, we help Tampa couples divorce respectfully and efficiently, minimizing conflict while protecting each person’s interests. If you’re looking for a fair, forward-thinking approach to divorce, we’re here for you.
We assist with:
✔ Collaborative divorce and mediation options
✔ Mutual property division and parenting agreements
✔ Support arrangements based on mutual understanding
✔ Reducing the emotional and financial burden of divorce
✔ Helping you start your next chapter on solid ground
Call 813-428-3400 or email [email protected] for a compassionate, results-driven approach to divorce.