When a marriage involving a service member ends in divorce, one of the most contested financial issues is the division of military retirement benefits. While Florida law governs equitable distribution in a dissolution of marriage, military retirement is not subject solely to state control. Instead, it’s subject to a unique overlay of federal law—particularly the Uniformed Services Former Spouses’ Protection Act (USFSPA).
The USFSPA grants authority to state courts, including those in Florida, to divide military pensions as part of the divorce process. But it also imposes limitations and conditions on how those benefits can be treated. Understanding how Florida’s equitable distribution framework aligns—and sometimes clashes—with the USFSPA is critical for service members and spouses alike.
For anyone navigating these issues, a seasoned Tampa military divorce lawyer is indispensable. The interaction between state law and federal statutes like the USFSPA is too nuanced to leave to assumption or incomplete information. This post explores the legal, procedural, and strategic considerations when Florida courts divide military retirement benefits under the authority—and constraints—of the USFSPA.
What Is the USFSPA?
The Uniformed Services Former Spouses’ Protection Act is a federal law passed in 1982 in response to the U.S. Supreme Court decision in McCarty v. McCarty (1981), which held that military retirement pay was not divisible in divorce under state law. Congress acted swiftly to change that.
The USFSPA does not require division of military retirement—it permits it. Specifically, it allows state courts to treat disposable retired pay as marital property in divorce proceedings.
Florida, as an equitable distribution state, exercises this authority regularly. But the USFSPA contains several key provisions and limitations that shape how Florida courts must approach military pension division. A knowledgeable Tampa military divorce lawyer must be familiar with every detail to avoid critical mistakes.
How Florida Defines Marital Property
Florida courts treat any retirement benefits earned during the marriage as marital property subject to equitable distribution. This includes:
- Civilian 401(k) plans,
- Pensions,
- Thrift Savings Plans (TSP),
- Military retirement pay.
When a service member earns years of creditable service during the marriage, the resulting pension is partially or entirely marital depending on the timing. The coverture formula is commonly used:
(Months of service during marriage ÷ Total months of service) × retirement pay = marital share.
Florida courts will typically award the non-military spouse 50% of the marital share, though the division can vary based on specific facts. However, even a well-drafted Florida judgment is still subject to USFSPA rules when it comes to actual enforcement. That’s where the conflict begins, and why having a Tampa military divorce lawyer is critical.
Jurisdictional Limitations Under the USFSPA
One of the most significant limitations the USFSPA places on state courts is jurisdiction over the military member’s pension. Under 10 U.S.C. § 1408(c)(4), a state may only divide military retired pay if it has:
- Jurisdiction by domicile,
- Jurisdiction by residence for reasons other than military assignment, or
- Jurisdiction with the express consent of the service member.
This means that a Florida court cannot divide a military pension if the only connection between the service member and Florida is a military assignment—unless the member agrees to the jurisdiction.
If a service member files no answer or participates without objecting to jurisdiction, the court may proceed. But if jurisdiction is properly contested, the Florida court may be legally barred from dividing the pension.
A Tampa military divorce lawyer will examine jurisdiction at the outset and ensure compliance with USFSPA limitations to avoid having the retirement award set aside later.
What Counts as “Disposable Retired Pay”?
The USFSPA defines disposable retired pay as the service member’s gross military retired pay minus:
- VA disability pay waived to receive tax-free benefits,
- Forfeitures due to court-martial,
- SBP (Survivor Benefit Plan) premiums,
- Amounts deducted for overpayments or recoupments.
Florida courts can only divide disposable retired pay. They cannot divide:
- VA disability compensation,
- Combat-Related Special Compensation (CRSC),
- Concurrent Retirement and Disability Pay (CRDP), if that portion results from waived pension.
The result is that the non-military spouse may be awarded a percentage of the retirement, only to receive less than expected if the service member waives part of their pay for VA disability.
A Tampa military divorce lawyer will anticipate this issue and draft indemnification clauses or offset provisions to protect the spouse’s rights in light of federal restrictions.
Direct Payments from DFAS: The 10/10 Rule
Another major feature of the USFSPA is the so-called 10/10 Rule. Contrary to popular belief, this rule does not determine whether a pension can be divided. It governs whether the Defense Finance and Accounting Service (DFAS) will make direct payments to the former spouse.
The rule requires:
- 10 years of marriage, and
- 10 years of creditable military service, and
- At least 10 years of overlap between the two.
If these conditions are met, DFAS will send the former spouse their share of the retirement directly each month. If not, the service member must make the payments themselves.
Florida courts may still award a share of the pension even if the 10/10 rule is not satisfied—but enforcement may be more difficult. A Tampa military divorce lawyer ensures the correct order is entered and submitted to DFAS where appropriate.
Survivor Benefit Plan (SBP) Elections and Florida Law
The SBP is a critical component of long-term financial planning in military divorces. It is the only way to ensure continued receipt of pension benefits by the former spouse after the service member’s death.
Florida courts routinely require SBP coverage in final judgments, but this must be followed by:
- A court order awarding former spouse SBP coverage,
- A deemed election submitted to DFAS within one year of the divorce,
- Correct completion of DD Form 2656-10 and supporting documents.
If the service member dies without electing SBP, the pension terminates—regardless of what the Florida order says.
A Tampa military divorce lawyer will coordinate the court’s SBP award with the DFAS submission process to avoid irrevocable loss of benefits.
Addressing VA Waivers in Florida Judgments
Service members often waive part of their military retired pay to receive VA disability compensation. This portion becomes non-divisible under federal law, even if the waiver occurs after the divorce.
This creates a serious risk: the non-military spouse’s award could be reduced, even after the divorce is final.
Florida courts attempt to mitigate this by:
- Including indemnity provisions requiring the service member to reimburse the spouse for lost income,
- Awarding other assets in exchange for uncertain pension streams,
- Crafting reversionary clauses allowing recalculation if a waiver occurs.
While courts cannot compel DFAS to divide waived pay, they can order direct reimbursement under contract and equitable principles.
A Tampa military divorce lawyer must address VA waivers directly in the final judgment to ensure future disputes are avoided or minimized.
Equitable Distribution Under Florida Law vs. USFSPA Limits
Florida law empowers courts to distribute marital property fairly—but that power is constrained when the property is subject to federal law.
Where conflict arises, federal law preempts state law. This means:
- Florida cannot divide military benefits beyond what the USFSPA allows,
- Orders that attempt to divide disability pay or waived pension will be unenforceable,
- Final judgments must align with DFAS regulations to be effective.
This requires more than general legal knowledge. A Tampa military divorce lawyer must understand both the scope and the limits of Florida’s equitable distribution authority in military cases.
Drafting Enforceable Military Retirement Awards in Florida
An enforceable retirement award in Florida must:
- Specify the percentage or dollar amount awarded,
- Include a clear formula for marital share calculation (e.g., coverture formula),
- Identify the retirement system (e.g., Final Pay, High-3),
- Address SBP elections and premiums,
- Include jurisdictional findings supporting the court’s authority.
If the order fails to meet DFAS standards, it will be rejected. This may result in years of unpaid or misdirected retirement benefits.
A Tampa military divorce lawyer will draft language that complies with both Florida family law and federal military pay regulations.
What Happens When Orders Conflict with the USFSPA?
When Florida court orders conflict with the USFSPA, DFAS will not enforce the provisions. This includes:
- Attempted division of VA disability or CRSC,
- Orders with vague or non-compliant language,
- Lack of jurisdiction under USFSPA rules,
- SBP elections not filed within statutory time limits.
In such cases, the non-military spouse may pursue alternative enforcement:
- Civil contempt for failure to pay the awarded amount,
- Money judgments for lost income,
- Post-judgment modification to revise the award,
- Injunctive relief to prevent asset transfers or concealment.
These actions require careful navigation of both Florida remedies and federal protections. A Tampa military divorce lawyer can tailor enforcement strategies to the unique circumstances of military retirement law.
Misconceptions About USFSPA and Florida Divorce
Common myths include:
- “If we were married less than 10 years, I get nothing.”
False. You can still receive a share of the pension—it just won’t be paid directly by DFAS. - “The court can divide VA disability pay.”
False. Courts cannot divide VA benefits directly, but may address the impact through indemnity. - “I don’t need to file anything with DFAS.”
False. You must submit specific forms to receive payments, including retirement division and SBP. - “My spouse’s waiver won’t affect my portion.”
False. If the waiver reduces disposable retired pay, your share may be reduced unless protected.
A Tampa military divorce lawyer will ensure that myths don’t become costly mistakes in your final judgment.
Coordinating Florida Orders with Federal Forms
DFAS requires exact documentation to implement divorce-related pay divisions:
- DD Form 2293 for retirement pay division,
- DD Form 2656-10 for SBP elections,
- Certified copy of the final judgment,
- Signed court order specifying pension division.
Missing or incorrect forms will delay or block payment. A Tampa military divorce lawyer will submit a complete and accurate package to DFAS to avoid processing issues.
FAQ: Florida Courts and the USFSPA
Q: Can Florida courts divide military retirement benefits?
A: Yes, but only the disposable retired pay portion permitted under the USFSPA.
Q: What is the 10/10 rule?
A: It’s a DFAS administrative rule allowing direct payments to the former spouse if there were 10 years of marriage overlapping with 10 years of military service.
Q: Does the court need my consent to divide my pension?
A: Only if Florida lacks jurisdiction by domicile or residency outside of military assignment. Consent is one of three jurisdictional paths.
Q: Can the court divide VA disability pay?
A: No. VA disability compensation is federally protected and cannot be divided.
Q: What happens if my spouse waives retired pay for VA benefits?
A: The former spouse’s payments may decrease unless indemnity provisions are included in the divorce judgment.
Q: How long do I have to elect SBP after divorce?
A: You have one year from the date of the final order to submit a deemed election to DFAS.
Q: Can the court award SBP coverage to a former spouse?
A: Yes, but it must be clearly stated in the judgment and followed by proper DFAS filings.
Q: What documents are needed for DFAS to divide the pension?
A: A certified copy of the divorce decree, a valid military retirement order, and DD Form 2293.
Q: What if my Florida divorce judgment is rejected by DFAS?
A: You may need to amend the order or seek alternative enforcement through the court.
Q: Who should handle my military pension division in a Florida divorce?
A: A Tampa military divorce lawyer with experience in both Florida family law and federal military retirement regulations.
The McKinney Law Group: Focused Legal Help for Military Divorce in Tampa
Divorce is never easy—but military service adds extra layers of complexity. At The McKinney Law Group, we help active-duty personnel, veterans, and military spouses in Tampa approach divorce with structure, clarity, and confidence.
Our legal team can help you:
✔ Understand how military pay and benefits affect divorce outcomes
✔ Divide retirement and disability benefits appropriately
✔ Create custody arrangements that adapt to your deployment schedule
✔ Resolve state and federal jurisdiction issues
✔ Move forward with a clear plan that safeguards your future
Schedule a consultation by calling 813-428-3400 or emailing [email protected].