Military divorces present a unique set of legal and financial challenges, particularly when it comes to dividing retirement benefits. In Florida, military pensions are considered marital assets subject to equitable distribution. However, when dealing with military retirement, federal law also comes into play—most notably the 10/10 rule. This rule often causes confusion among divorcing spouses, yet understanding its scope and limitations is crucial when structuring a divorce settlement involving a military service member. A skilled Tampa divorce lawyer can navigate both Florida law and federal military regulations to ensure that pension division is both enforceable and accurate.
Military Pensions as Marital Property in Florida
Under Florida law, any portion of a military pension earned during the marriage is considered marital property. That portion is subject to equitable distribution in the divorce process. The total military pension is not automatically divided; only the portion earned during the marriage is subject to division.
This division is handled just like any other marital asset—real property, bank accounts, or retirement plans—through the Florida equitable distribution framework. However, military pensions differ in one critical respect: they are governed not just by state law, but also by federal statutes, most notably the Uniformed Services Former Spouses’ Protection Act (USFSPA).
The USFSPA allows state courts to treat disposable military retired pay as divisible property and outlines the conditions under which the Defense Finance and Accounting Service (DFAS) will make direct payments to former spouses.
What Is the 10/10 Rule?
The 10/10 rule refers to a specific eligibility criterion under the USFSPA. It means:
- The spouses must have been married for at least 10 years, and
- The military member must have completed 10 years of creditable military service during that same period of marriage.
If these two requirements are met, DFAS will send the former spouse’s share of the military retirement pay directly to them, rather than through the retired service member.
It’s essential to understand that the 10/10 rule does not determine whether the former spouse is entitled to a portion of the military pension—it only governs how the payment is made. Even if the marriage does not meet the 10/10 threshold, a Tampa divorce lawyer can still secure a portion of the pension for the non-military spouse, but the payments must be made from the retired service member directly.
Why Direct Payment from DFAS Matters
There are practical and legal advantages to direct payment from DFAS:
- Predictability: Payments come directly from the federal government, reducing the likelihood of nonpayment or delays.
- Enforceability: DFAS payments continue as long as the retired pay is issued, independent of the retiree’s cooperation.
- Avoiding Contempt Issues: If the retired service member were responsible for making payments and fails to do so, it may necessitate post-judgment contempt proceedings.
For these reasons, Tampa divorce lawyers aim to structure divorce decrees to meet 10/10 eligibility when possible. This makes enforcement much easier and protects the financial stability of the former spouse.
Misconceptions About the 10/10 Rule
Many people misunderstand the 10/10 rule and believe that it creates an entitlement to pension division. That is incorrect. The right to a share of military retired pay is determined by Florida law, regardless of how long the marriage overlapped with service. A Tampa divorce lawyer can successfully pursue pension division even in marriages that fall short of the 10/10 mark, as long as a portion of the pension accrued during the marriage.
The rule merely affects method of disbursement—it is not a gateway to eligibility.
Calculating the Marital Share of a Military Pension
In Florida, courts use the coverture fraction to determine the marital portion of a pension:
- Numerator: Number of months the parties were married while the service member was accruing pension benefits.
- Denominator: Total number of months of service credit toward retirement.
This fraction is multiplied by the service member’s final pension benefit to determine the marital share. That share may then be divided equitably between the spouses—often, but not always, split 50/50.
For example:
- Married 120 months during service,
- Total service = 240 months,
- Coverture fraction = 120/240 = 0.5,
- If total pension is $4,000/month, the marital share is $2,000/month,
- A 50/50 split of that marital portion results in the former spouse receiving $1,000/month.
A Tampa divorce lawyer will work with financial and military pension experts to ensure accurate calculation and equitable distribution language.
Disposable Retired Pay: What Can Be Divided?
Under the USFSPA, only disposable retired pay can be divided by a Florida court. This excludes:
- VA disability compensation offset
- Survivor Benefit Plan (SBP) premiums
- Deductions for court-martial fines or forfeitures
- Military pay waived to receive civil service benefits
If a service member waives military retirement to receive VA benefits, the divisible portion of the pension may be reduced. This can lead to disputes, especially when the non-military spouse sees a decrease in payments. A Tampa divorce lawyer can draft indemnity clauses in the final judgment to address this risk.
Survivor Benefit Plan (SBP): A Critical Consideration
Division of the pension is one component. Ensuring continued payment after the service member’s death is another. That’s where the Survivor Benefit Plan (SBP) comes in.
SBP is an annuity that continues a portion of the military retired pay to a beneficiary after the service member’s death. Without an SBP election, the former spouse’s pension payments terminate upon the retiree’s death.
Under federal law, a court may order the service member to designate the former spouse as the SBP beneficiary, and that designation must be filed with DFAS within one year of the divorce.
This election is not automatic—even if included in the final judgment. A Tampa divorce lawyer must ensure the election is properly submitted to DFAS, or the protection may be lost permanently.
Active-Duty vs. Reserve Component Pensions
Military pensions are divided differently depending on whether the service member served active duty or in the reserves. Reserve pensions are based on “points” accumulated through drilling, training, and other duties. The coverture fraction must reflect the number of points earned during the marriage, not months served.
Tampa divorce lawyers handling reserve military divorces must understand this distinction and tailor the marital share calculation accordingly. Mistakes in point-based pension division can lead to inequitable results and enforcement complications.
VA Disability and Its Impact on Pension Division
Federal law prohibits state courts from dividing VA disability compensation. However, when a retiree elects to waive a portion of military retired pay to receive VA benefits, it can reduce the divisible portion of the pension.
This is a contentious issue. Courts across the country have taken different approaches to indemnify former spouses who suffer losses from this type of waiver. A Tampa divorce lawyer should include indemnity provisions that obligate the service member to reimburse or compensate the former spouse if pension amounts are reduced by future VA elections.
Enforceability and Drafting Tips
To ensure enforceability, a divorce decree must meet certain standards under federal law:
- Must include the specific percentage or dollar amount awarded.
- Must identify the retirement system (e.g., Army, Navy).
- Must indicate whether the parties meet the 10/10 rule.
- Must include SBP provisions if required.
- Must be certified and sent to DFAS with proper documentation.
Poorly drafted judgments can be rejected by DFAS or fail to protect the spouse’s interests. A Tampa divorce lawyer must use precise language that aligns with federal regulations and include fallback provisions in case of early retirement, disability offsets, or remarriage.
Alternative Settlement Approaches
Some parties may agree to offset the military pension division with other assets, such as equity in the marital home or a lump-sum buyout. While this can simplify post-divorce enforcement, it carries risks if the pension amount changes or if the offset asset depreciates.
These buyouts require careful valuation and a written acknowledgment that the offset substitutes for pension division. A Tampa divorce lawyer should ensure such agreements are fully documented, including independent appraisals and waivers.
When the Service Member Is Not Yet Retired
If the service member is still active, the pension division will take effect only upon retirement. The order must still be entered at the time of divorce, and DFAS will retain it on file until benefits begin.
Courts in Tampa may retain jurisdiction to modify the award later, or they may structure the order with future contingencies. A Tampa divorce lawyer must draft with long-term enforceability in mind, even if retirement is decades away.
Modifications and Post-Judgment Enforcement
Generally, pension division awards are non-modifiable, except under very limited circumstances. Once entered, the award is binding unless set aside for fraud or lack of jurisdiction.
Post-judgment enforcement may involve:
- Motions to compel DFAS compliance,
- Contempt actions if the member is paying directly and refuses,
- Garnishment procedures,
- DFAS record correction requests.
A Tampa divorce lawyer familiar with military benefit administration can enforce the judgment efficiently without unnecessary litigation.
FAQ: Military Pension Division and the 10/10 Rule
Q: If my marriage lasted 9 years, can I still get part of the pension?
A: Yes. The 10/10 rule only affects direct payment through DFAS. Florida courts can still award a share even if you were married for less than 10 years.
Q: Can the court divide VA disability payments?
A: No. VA disability compensation is excluded from division under federal law. However, indemnification provisions can be used to address offset concerns.
Q: What if the service member dies—will I keep receiving my share?
A: Not unless you are designated as a beneficiary under the Survivor Benefit Plan. That must be specifically ordered in the divorce and timely submitted to DFAS.
Q: How is the marital share of the pension calculated?
A: Florida uses a coverture fraction that compares the time married during service to the total length of military service.
Q: Can we agree to a lump-sum buyout instead of dividing the pension?
A: Yes, but it requires careful valuation and written acknowledgment. Legal advice is essential when structuring these types of agreements.
Q: Does it matter if the service member is in the Reserves instead of active duty?
A: Yes. Reserve pensions are calculated based on points, not months, and require different coverture fraction methods.
Q: What if my ex-husband won’t cooperate with DFAS paperwork?
A: A court can compel compliance, and contempt proceedings may be initiated. DFAS can only process orders that meet specific legal standards.
Q: Is SBP automatic in Florida divorces?
A: No. It must be ordered in the divorce decree and submitted within one year. Otherwise, the opportunity may be lost permanently.
Q: Can a Tampa court enforce a pension award if we live in different states now?
A: Yes, if the court had proper jurisdiction when the order was entered. Enforcement can often be pursued through DFAS or local action.
Q: Will remarriage affect my entitlement to pension division?
A: No. Remarriage does not impact pension division. However, it may affect alimony or other forms of support.
The McKinney Law Group: Tampa Divorce Lawyers Offering Straightforward Advice and Meaningful Solutions
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✔ Making sense of Florida divorce laws
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