Introduction
Divorce involving military families presents a complex blend of federal and state legal issues, especially when it comes to dividing military retirement benefits. One of the most important federal laws impacting military divorces is the Uniformed Services Former Spouses’ Protection Act (USFSPA). Enacted in 1982, the USFSPA gives state courts the authority to treat military retirement pay as marital property and divide it during a divorce. Yet, this statute also imposes strict rules on how benefits can be awarded and distributed, particularly when payments come directly from the Department of Defense.
For spouses divorcing in Florida, and especially those in the Tampa area where MacDill Air Force Base contributes to a large local military presence, understanding the USFSPA is essential. Both service members and their spouses must know what this law allows, what it doesn’t, and how Florida law interacts with it. Whether you’re negotiating a marital settlement agreement, litigating equitable distribution, or seeking enforcement of a final judgment, the USFSPA will shape the outcome.
A Tampa divorce lawyer who handles military divorces will be familiar with the nuances of the USFSPA and how to properly navigate its limitations. This article provides a comprehensive overview of the USFSPA, including its application in Florida divorce proceedings, limitations on enforcement, and key considerations for service members and their former spouses.
What Is the USFSPA?
The Uniformed Services Former Spouses’ Protection Act is a federal statute codified at 10 U.S.C. §1408. It authorizes state courts to divide disposable military retired pay as marital property during divorce or legal separation. Prior to the USFSPA, military retirement pay was viewed as the exclusive property of the service member, and courts lacked authority to divide it in family law proceedings.
The USFSPA serves two primary purposes:
- It allows state courts to treat military retirement pay as marital property, subject to division in accordance with state law.
- It provides a mechanism by which former spouses may receive their share of the retirement pay directly from the Department of Defense, provided certain eligibility conditions are met.
A Tampa divorce lawyer will use the USFSPA as part of the foundation when dividing military retirement benefits in Florida divorces involving service members.
Who Is Covered by the USFSPA?
The USFSPA applies to members of the “uniformed services,” including:
- U.S. Army
- U.S. Navy
- U.S. Marine Corps
- U.S. Air Force
- U.S. Space Force
- U.S. Coast Guard
- Commissioned officers of the Public Health Service (PHS)
- National Oceanic and Atmospheric Administration (NOAA)
The law governs the treatment of military retired pay in divorce, but it also intersects with other benefits, such as medical coverage, commissary privileges, and Survivor Benefit Plan (SBP) elections.
A Tampa divorce lawyer representing either party in a military divorce must analyze the entirety of the service member’s benefits and how the USFSPA impacts distribution and eligibility.
What Is Disposable Retired Pay?
The USFSPA allows state courts to divide a service member’s “disposable retired pay,” not the full gross retired pay. Disposable retired pay is defined as the total monthly retired pay minus:
- Deductions for recoupment of overpayments
- Amounts waived for VA disability compensation
- Court-ordered child support or alimony
- Premiums for the Survivor Benefit Plan (SBP)
This definition is important because the actual amount subject to division may be significantly less than the gross pension. In many cases, service members elect to receive VA disability pay, which reduces the disposable retired pay and, consequently, the former spouse’s share.
A Tampa divorce lawyer must carefully account for any disability waivers when calculating equitable distribution of retirement benefits under Florida law.
The 10/10 Rule
One of the most misunderstood aspects of the USFSPA is the so-called “10/10 rule.” This rule governs only the method of payment—not whether the former spouse is entitled to a share of military retired pay.
The 10/10 rule provides that:
- The parties must have been married for at least 10 years, and
- The service member must have performed at least 10 years of creditable military service during the marriage
If the 10/10 rule is satisfied, the Defense Finance and Accounting Service (DFAS) will pay the former spouse’s share of retired pay directly.
If the 10/10 rule is not satisfied, the former spouse may still receive a share of the retirement pay as ordered by the court, but the payments must come from the service member, not DFAS.
A Tampa divorce lawyer will determine whether the 10/10 rule applies and ensure that payment provisions in the final judgment or settlement agreement comply with federal law.
Florida’s Approach to Dividing Military Retired Pay
Florida is an equitable distribution state, meaning marital assets are divided fairly—but not necessarily equally. Military retirement pay earned during the marriage is considered a marital asset to the extent that it accrued during the marriage.
Florida courts often apply a formula known as the “coverture fraction” to divide military retirement pay:
Spouse’s share = (Months of military service during the marriage ÷ Total months of military service) × ½ × Disposable retired pay
The result is the former spouse’s proportionate share of the retirement based on the length of the marriage and the member’s total time in service.
A Tampa divorce lawyer will calculate this formula, draft appropriate language into the final judgment or marital settlement agreement, and help with DFAS submission if applicable.
Survivor Benefit Plan (SBP) Considerations
Military retirement pay ceases upon the service member’s death. To protect the former spouse’s interest, they may be designated as the beneficiary of the Survivor Benefit Plan, which continues a portion of the retired pay after the member’s death.
Key facts about SBP:
- The former spouse must be specifically named as the SBP beneficiary in the final judgment or agreement.
- A “deemed election” must be submitted to DFAS within one year of the divorce decree.
- If no SBP election is made, the former spouse may receive nothing if the member dies first.
The SBP premium (usually 6.5% of the base amount) is deducted from the member’s retired pay and may affect the calculation of disposable retired pay.
A Tampa divorce lawyer must address SBP elections explicitly in the agreement or judgment to ensure continued benefits after the member’s death.
Limitations of the USFSPA
While the USFSPA empowers state courts, it also imposes clear limitations:
- Courts may not divide retirement pay that has been waived in exchange for VA disability benefits.
- Courts cannot order direct payment from DFAS if the 10/10 rule is not met.
- The law does not apply to military disability retirement pay.
- There is no automatic entitlement—each court must determine whether division is appropriate.
These limitations can affect both the form and substance of the court’s award. A Tampa divorce lawyer familiar with these boundaries will avoid drafting unenforceable orders and anticipate payment issues that may arise later.
Enforcing USFSPA Orders Through DFAS
Once a court orders the division of military retirement pay, the former spouse must submit the appropriate paperwork to DFAS to initiate payment. This includes:
- A certified copy of the final judgment or marital settlement agreement
- A completed DD Form 2293
- Supporting documents showing compliance with the 10/10 rule, if applicable
DFAS will begin payments within 90 days if all criteria are met.
A Tampa divorce lawyer will assist in preparing and submitting these documents to ensure timely and accurate disbursement of retirement benefits.
USFSPA and Remarriage
Remarriage does not affect a former spouse’s right to receive a share of military retirement pay under the USFSPA. However, remarriage may affect:
- Eligibility for SBP benefits
- Eligibility for medical or commissary benefits under other military regulations
If the former spouse receives alimony, remarriage may also trigger modification or termination of spousal support under Florida law.
A Tampa divorce lawyer will analyze the full effect of remarriage and advise clients accordingly during or after the divorce process.
USFSPA and Thrift Savings Plan (TSP)
The USFSPA does not govern division of the Thrift Savings Plan (TSP), which is the military equivalent of a 401(k). TSP accounts are governed under federal retirement law and may be divided via a Retirement Benefits Court Order (RBCO).
TSP division must be:
- Specifically addressed in the divorce judgment
- Accompanied by a court order that meets RBCO standards
A Tampa divorce lawyer will ensure the TSP is not overlooked and that a separate order is prepared to divide it properly.
Impact of Disability Pay on USFSPA Awards
One of the most contentious issues in military divorces is the impact of VA disability compensation. Service members may elect to waive a portion of their retired pay to receive non-taxable VA disability benefits. Because this waived amount is excluded from disposable retired pay, it reduces the amount a former spouse can receive.
This practice can have serious consequences:
- It may diminish the former spouse’s court-ordered share
- It can trigger disputes over indemnification or contract enforcement
- It may result in modification petitions in state court
Florida courts have held that while the USFSPA prevents state courts from dividing disability pay, parties may contract for indemnity in a marital settlement agreement.
A Tampa divorce lawyer will anticipate these issues during negotiations and include indemnification language when appropriate to protect the non-military spouse.
State Court Enforcement Remedies Beyond DFAS
If the USFSPA prevents direct DFAS payment (for example, if the 10/10 rule is not met), the former spouse can still enforce the court’s award directly against the retired service member through:
- Wage garnishment
- Contempt proceedings
- Income withholding orders
- Civil judgment enforcement
Florida courts retain jurisdiction to enforce their own orders. A Tampa divorce lawyer will pursue alternative enforcement remedies to ensure the former spouse receives the share they are entitled to.
FAQ: Understanding the Uniformed Services Former Spouses’ Protection Act (USFSPA)
Can Florida courts divide military retirement benefits in a divorce?
Yes. The USFSPA allows Florida courts to treat military retirement pay as marital property and divide it during divorce.
Do I need to be married for 10 years to get part of military retirement?
No. The 10/10 rule only applies to direct DFAS payment. A Florida court can award a share regardless of marriage length, but the service member may have to pay directly.
Can I get VA disability pay divided in divorce?
No. VA disability pay is excluded from disposable retired pay under the USFSPA and cannot be divided. However, indemnity clauses may protect the non-military spouse.
What happens if the service member remarries?
Remarriage of the service member does not affect the former spouse’s right to receive a share of military retired pay.
Does the USFSPA apply to TSP accounts?
No. TSP accounts are divided separately via a Retirement Benefits Court Order and are not covered under the USFSPA.
Can I receive retirement pay and alimony?
Yes. Military retirement pay and alimony are distinct. You may receive both if awarded by the court.
Can Florida courts award SBP coverage in a divorce?
Yes. Courts can order the service member to elect SBP coverage for the former spouse, but a deemed election must be submitted within one year.
What if my ex retires years after the divorce?
You may still receive your share once retirement pay begins, as long as your judgment awards it and you file with DFAS if the 10/10 rule is met.
Can I modify a USFSPA order later?
Modifications are allowed under state law if circumstances change, but DFAS will only honor the original court order unless modified via proper channels.
Do I need a Tampa divorce lawyer for a military divorce?
Yes. Military divorces involve federal statutes, state law, and complex benefits. An experienced Tampa divorce lawyer ensures your rights are protected at every step.
The Uniformed Services Former Spouses’ Protection Act (USFSPA) is a cornerstone of military divorce law. It empowers courts to divide retirement benefits, sets strict rules for direct payment, and defines what compensation can and cannot be shared. For service members and their spouses in Tampa, where military families are a vital part of the community, understanding the USFSPA is crucial. A Tampa divorce lawyer with military divorce experience will guide clients through its provisions, draft enforceable agreements, and ensure the final judgment complies with both federal and state law.
The McKinney Law Group: Divorce Representation in Tampa Grounded in Strategy and Support
Divorce isn’t just a legal event—it’s a pivotal life change. At The McKinney Law Group, we guide Tampa clients through that transition with honest advice, detailed planning, and focused legal advocacy from start to finish.
We provide counsel for:
✔ Custody and time-sharing arrangements that serve your child’s best interests
✔ Equitable distribution of property, assets, and liabilities
✔ Tailored alimony solutions based on your financial picture
✔ Settlement agreements that reduce conflict and promote stability
✔ Trial preparation when contested issues can’t be resolved
Call 813-428-3400 or email [email protected] to get started.