The intersection of military retirement and Florida family law creates one of the most complex legal environments for service members and their spouses. When a divorce occurs at the same time a service member is transitioning into retirement, the legal and financial stakes are significantly amplified. In Tampa, home to the strategic importance of MacDill Air Force Base, thousands of families must navigate these waters every year. The decisions made during this critical window will dictate financial security for decades to come. Securing the counsel of a knowledgeable Tampa military divorce lawyer is essential to ensure that the division of assets is handled with precision, particularly when dealing with the transition from active duty pay to retired pay.
The Strategic Timing of Retirement and Dissolution
Retiring from the military is a life altering event that involves a shift in income, benefits, and lifestyle. When this transition overlaps with the dissolution of a marriage, the legal “status quo” is in constant flux. In Florida, property division is governed by the principle of equitable distribution. This means the court aims to divide marital assets and debts fairly, though not always in a perfect fifty-fifty split.
The timing of the retirement date in relation to the “cutoff date” for the divorce is a primary concern. Under Florida Statutes Section 61.075, the date used to determine marital assets is generally the date the petition for divorce is filed. However, if a service member retires during the pendency of the litigation, the transition from an active duty Leave and Earnings Statement (LES) to a Retired Pay Account can create confusion regarding cash flow, alimony obligations, and the valuation of the pension itself. A Tampa military divorce lawyer must be adept at tracking these moving parts to prevent the “double dipping” of assets or the undervaluation of the marital portion of the retirement.
Understanding the Uniformed Services Former Spouses’ Protection Act (USFSPA)
The USFSPA is the federal foundation for how state courts handle military retirement. It does not automatically grant a former spouse a portion of the retirement pay; rather, it allows state courts to treat retired pay as marital property. In Tampa, the court treats the portion of the retirement earned during the marriage as a joint asset.
When a service member retires during the divorce, the USFSPA rules regarding the “10/10” requirement become highly relevant. For the Defense Finance and Accounting Service (DFAS) to pay the former spouse directly, the marriage must have lasted at least ten years, overlapping with ten years of creditable military service. If the retirement happens during the divorce and the parties are at the nine year and eleven month mark, the strategic timing of the final judgment becomes a million dollar decision. A Tampa military divorce lawyer will analyze the calendar to ensure that federal requirements are met to simplify future payments and provide security for both parties.
The Impact of the Frozen Benefit Rule on Transitioning Service Members
For any divorce finalized after late 2016, federal law mandates the use of the “Frozen Benefit Rule.” This rule requires the court to value the military pension based on the rank and years of service at the time of the divorce decree, rather than the time of retirement.
However, if the service member retires during the divorce, the “frozen” benefit and the “actual” benefit may be identical. This simplifies the math but increases the focus on other retirement benefits. For example, if a service member is on terminal leave when the divorce is finalized, the court must decide how to treat that accrued leave time. Is it a marital asset to be divided, or is it part of the final active duty paycheck used for support calculations? These technical distinctions are where a Tampa military divorce lawyer adds the most value, ensuring that the service member’s transition into civilian life is not hampered by an improperly drafted court order.
Terminal Leave and Final Active Duty Pay
Terminal leave is a period where a service member is still on active duty and receiving full pay and allowances but is essentially using up accrued vacation time before their official retirement date. If a divorce is finalized during terminal leave, it creates a unique window. The service member is still receiving Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS), which are non taxable but count as income for Florida child support and alimony guidelines.
Once the retirement is official, these allowances vanish, and the gross income often drops significantly. If a judge in a Tampa courtroom sets a support obligation based on terminal leave pay, the service member will be overpaying the moment they transition to retired pay. A Tampa military divorce lawyer will advocate for “step down” orders that automatically adjust support levels on the first day of retirement, preventing the need for a costly modification hearing just weeks after the divorce ends.
Division of the Thrift Savings Plan (TSP) During Transition
The Thrift Savings Plan is often the second largest asset in a military household. Unlike the pension, which is a defined benefit, the TSP is a defined contribution plan similar to a 401(k). When a service member retires during a divorce, they may be tempted to roll over their TSP into a private IRA or withdraw funds to cover transition expenses.
Under Florida law, any contributions made to the TSP during the marriage are marital property. If a service member makes a significant withdrawal during the retirement transition without the other spouse’s consent, the court may view this as “intentional dissipation of marital assets.” A Tampa military divorce lawyer will often seek a temporary injunction to freeze the TSP accounts during the litigation to ensure that the balance is preserved for equitable distribution. Dividing a TSP requires a Retirement Benefits Court Order (RBCO), and the language must be precise to avoid unintended tax consequences during the retirement transition.
The Survivor Benefit Plan (SBP) Election
The Survivor Benefit Plan is an insurance policy that allows a former spouse to continue receiving a portion of the military retirement pay after the service member passes away. When a service member retires, they must make an election regarding SBP. If the divorce is finalized during the retirement process, the court must decide if the former spouse will be designated as the beneficiary.
This is a critical “use it or lose it” moment. If the service member retires and does not elect former spouse coverage, or if the “deemed election” is not filed with DFAS within one year of the divorce, the benefit may be lost forever. The premiums for SBP are typically deducted from the service member’s gross retired pay. A Tampa military divorce lawyermust negotiate who will bear the cost of these premiums. In many high conflict cases, the SBP becomes a primary bargaining chip, as it provides the former spouse with long term security that alimony cannot guarantee.
VA Disability and the Waiver of Retired Pay
Many service members transitioning into retirement are also undergoing evaluations for VA disability ratings. This creates a significant legal complication in Florida. To receive VA disability pay, a service member must often waive an equivalent amount of their retirement pay. Because VA disability is tax free and, under federal law, not divisible as marital property, this waiver can “shrink” the portion of the pension available to the former spouse.
In the wake of the U.S. Supreme Court case Howell v. Howell, state courts cannot simply order a service member to “indemnify” or pay back the former spouse for the loss caused by a VA waiver. This makes the negotiation process much more difficult. A Tampa military divorce lawyer must find creative ways to offset this potential loss, such as awarding the former spouse a larger share of other marital assets, like equity in a Tampa home or a larger portion of the TSP, to account for the risk that the pension may decrease in the future due to a disability rating.
High-Conflict Personalities and Retirement Sabotage
In divorces involving narcissistic or high conflict personalities, the retirement transition is often used as a weapon. A service member might threaten to “never retire” to keep the spouse from collecting, or they might threaten to take a “disability retirement” to minimize the divisible assets. Conversely, a high conflict spouse might try to delay the retirement process through the court system to maximize their share of active duty pay.
A Tampa military divorce lawyer recognizes these patterns as litigation abuse. The goal is to move the case toward a final judgment based on the law rather than the emotional whims of a difficult spouse. Florida courts have broad discretion to manage their dockets and prevent one party from sabotaging the financial transition of the other. By focusing on objective data—such as the service member’s high three years of pay and their actual retirement eligibility date—the legal team can neutralize the narcissist’s attempts at manipulation.
The Role of Post-9/11 GI Bill Benefits
For service members retiring during a divorce, the GI Bill is a significant education asset. While the GI Bill itself is not “property” that can be divided by a Florida court, the ability to transfer those benefits to a child or a spouse is a valuable negotiation point.
Once a service member retires, they generally cannot change the designation of transferred benefits unless they meet very specific criteria. If a service member has already transferred months of eligibility to the spouse, they may want to “claw back” those months during the divorce. A Tampa military divorce lawyer understands that while the court cannot order the transfer of GI Bill benefits, the parties can include these benefits as part of a comprehensive marital settlement agreement. This can be used to offset other costs, such as college expenses for children, which are not typically required under Florida child support laws.
Healthcare Transitions: TRICARE and the 20/20/20 Rule
Retiring from the military triggers a shift in healthcare from active duty TRICARE to TRICARE for Retirees. For a spouse, the divorce ends their eligibility for TRICARE unless they meet the “20/20/20” rule (20 years of marriage, 20 years of service, and 20 years of overlap).
If the spouse does not meet this rule, they may be eligible for the “20/20/15” rule, which provides one year of transitional coverage. If the divorce happens exactly as the service member is retiring, the spouse’s loss of healthcare can be a major financial blow. A Tampa military divorce lawyer will often advise on the timing of the final judgment to ensure that a spouse who is close to these milestones does not lose lifetime healthcare coverage by just a few days. This is a “no cost” benefit for the service member that provides immense value to the former spouse, making it a powerful tool for settling a contested case.
Dividing the Military “Cloud”: Moving Expenses and DITY Moves
The final move from the military, often called a “Personally Procured Move” (PPM) or DITY move, involves a significant amount of money. The military pays the service member to move their household to their home of selection. If this move occurs during a divorce, the “profit” from the move is a marital asset.
Furthermore, the physical division of household goods can be contentious. A service member retiring to a smaller apartment in Tampa may not want the large furniture from a base house. A Tampa military divorce lawyer will ensure that the marital settlement agreement specifically addresses who pays for the storage and transport of marital property during this transition. Without specific language, a service member may find themselves paying for the spouse’s move across the country out of their own pocket.
Calculation of Alimony and the “Ability to Pay”
Florida recently overhauled its alimony statutes, moving toward a formulaic approach based on the length of the marriage. However, the foundational requirement of “need” and “ability to pay” remains. When a service member retires during a divorce, their “ability to pay” changes overnight.
Active duty pay includes many tax free components that increase a service member’s net cash flow. Retired pay is fully taxable and generally represents only fifty percent of the high three average of base pay. A Tampa military divorce lawyer must ensure that the court does not set an alimony award based on the “high” years of active duty service if the service member is about to live on a “low” retirement income. If the retirement is imminent and mandatory (such as reaching high year of tenure), the court must consider the future retired income rather than the current active duty salary.
Life Insurance and the Servicemembers’ Group Life Insurance (SGLI)
Under federal law, a state court cannot order a service member to name a former spouse as a beneficiary of their SGLI. This is a common point of confusion for civilian lawyers. However, once a service member retires, they transition to Veterans’ Group Life Insurance (VGLI).
A Tampa military divorce lawyer will work to secure life insurance as a way to guarantee alimony or child support payments. While they cannot force an SGLI designation, they can require the service member to purchase a private life insurance policy or to use the SBP as a substitute. This ensures that if the service member passes away, the former spouse and children are not left in financial ruin.
The Strategic Advantage of a Military-Focused Firm in Tampa
The Tampa legal community is well aware that military cases require a different level of precision. A general family law practitioner may miss the “Frozen Benefit Rule” or fail to account for the VA waiver, leading to a “malpractice” level of error for the client.
A Tampa military divorce lawyer focuses on the specific regulations of the Department of Defense and the administrative requirements of DFAS. They understand how to read an LES and how to calculate a “high three” average accurately. In a high conflict divorce, this technical expertise is the only thing that can stop a deceptive spouse from manipulating the numbers. Whether you are the service member transitioning out of the military or the spouse looking to secure your future, having a specialist ensures that you are not leaving thousands of dollars on the table.
Mediation and the Retirement Window
In Tampa, mediation is a mandatory step in the divorce process. When retirement is on the horizon, mediation becomes a tactical opportunity to trade assets. For example, a service member might agree to give the spouse more of the “cash” assets today (like the savings account or the car) in exchange for the spouse taking a smaller percentage of the future pension.
A narcissist may try to use mediation to “win” every single issue, but a Tampa military divorce lawyer will use the reality of the retirement transition to force a settlement. They can show the narcissist that a trial will be far more expensive and that the judge will likely follow the standard federal rules anyway. By making the “cost of conflict” clear, the attorney can often reach a settlement that protects the service member’s retirement while providing the spouse with a fair share.
Conclusion: Securing the Second Act
Retirement is supposed to be the beginning of a new chapter, not the end of a financial future. When a divorce overlaps with this transition, the complexity can feel overwhelming. However, the legal system in Florida, combined with federal military protections, provides a clear path forward.
By working with an experienced Tampa military divorce lawyer, you can ensure that the division of your military property is handled with the respect and precision your service deserves. You have spent decades working for your retirement; don’t let a divorce during this transition period strip away the rewards of that service. With a strategic approach, meticulous documentation, and a focus on the law, you can navigate the dissolution of your marriage and move into your retirement years with the financial stability you have earned.
Frequently Asked Questions
How does the “Frozen Benefit Rule” affect my retirement division if I retire during the divorce? If you retire while the divorce is pending, your “frozen” rank and your “actual” rank are usually the same. However, the rule still requires the court to value the pension based on your high three years of pay at the time of the divorce, rather than what you might earn in a second career or through future cost of living adjustments before you actually start collecting. A Tampa military divorce lawyer will ensure the math is compliant with federal law.
Can my spouse get half of my VA disability pay in a Tampa divorce? No. Under federal law and the Howell Supreme Court decision, VA disability pay is not marital property and cannot be divided by a state court. However, a Tampa military divorce lawyer may advocate for an offset, where the spouse receives a larger portion of other marital assets to compensate for the fact that a portion of the retirement pay was waived to receive disability pay.
What is the “10/10 Rule” and why is it important in my Tampa divorce? The 10/10 Rule is a federal requirement for direct payment of retirement benefits. 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 that marriage. If you meet this rule, DFAS sends the check directly to the former spouse. If not, the service member must pay the spouse manually, which is much more difficult to enforce.
If I retire during the divorce, will my alimony be based on my active duty pay or my retired pay? Alimony is based on the “ability to pay.” If your retirement is imminent, a Tampa military divorce lawyer will argue that the alimony should be based on your future retired income, which is significantly lower than active duty pay. Florida courts generally look at the income that will be available once the divorce is final.
Can my ex-spouse keep TRICARE if we divorce right as I retire? Only if they meet the 20/20/20 rule (20 years of marriage, 20 years of service, 20 years of overlap). If they do not meet this rule, they will lose TRICARE coverage on the date the divorce is finalized. Some spouses may qualify for one year of “transitional” coverage under the 20/20/15 rule.
What happens to my Thrift Savings Plan (TSP) if I retire during the divorce? The portion of the TSP contributed during the marriage is a marital asset. If you retire during the divorce, you must be careful not to move or withdraw funds without a court order, as this can be seen as dissipation of assets. A Tampa military divorce lawyer will use a specialized order to divide the TSP equitably.
Is the Survivor Benefit Plan (SBP) mandatory in a military divorce? No, but a Florida judge can order it as a way to “secure” an alimony or property award. SBP ensures that if the service member dies, the former spouse continues to receive a portion of the retirement pay. The cost of the premiums is a major point of negotiation in every military divorce.
How is “terminal leave” treated in a Tampa divorce? Terminal leave is generally treated as active duty income. However, the accrued leave time itself can sometimes be valued as a marital asset if it was earned during the marriage. Your Tampa military divorce lawyer will help you determine how this impacts your financial affidavit and support guidelines.
Can I stop my ex-spouse from getting my pension if they cheated? No. Florida is a “no fault” divorce state. While infidelity can sometimes impact alimony if marital funds were spent on the paramour, it does not prevent a spouse from receiving their equitable share of a marital asset like a military pension.
What should I do if my spouse is using my retirement transition to harass me? This is a form of litigation abuse. You should document all threats and work with a Tampa military divorce lawyer to seek a protective order or a case management conference. The court has the power to stop a spouse from interfering with your military retirement process or your professional command.
Written by Damien McKinney, Founding Partner
Damien McKinney is the Founding Partner of The McKinney Law Group, bringing nearly two decades of experience to complex marital and family law matters. He is licensed in both Florida and North Carolina and has been repeatedly recognized as a Rising Star by Super Lawyers.