Military divorce cases in Tampa carry a level of financial and legal complexity that sets them apart from civilian divorce proceedings. When one or both spouses serve or have served in the United States Armed Forces, the division of retirement pay, disability compensation, and other benefits becomes a central and often contested issue. For anyone navigating this process, understanding exactly which assets can be divided by a court and which ones cannot is essential. A Tampa military divorce lawyer who handles these matters regularly will tell you that the most misunderstood issues invariably involve VA disability compensation and the rules set by federal law governing its treatment in divorce.
This article explains how Florida courts handle military benefits in divorce, what the landmark Supreme Court case Howell v. Thornberry means for divorced military spouses, and what practical options exist for both servicemembers and their spouses when disability pay is a major component of the marital financial picture. Whether you are an active-duty servicemember stationed at MacDill Air Force Base, a recently separated veteran, or the spouse of a military retiree, retaining a Tampa military divorce lawyer early in the process can prevent costly mistakes that are difficult or impossible to correct after the fact.
The Federal Framework That Governs Military Divorce
Before diving into what can and cannot be divided, it is important to understand that military divorce is governed largely by federal law, even when the divorce itself is filed in a Florida state court. The two most important pieces of federal legislation in this area are the Uniformed Services Former Spouses’ Protection Act (USFSPA), passed in 1982, and the Veterans’ Benefits Act, which shapes how VA disability compensation is categorized.
The USFSPA gives state courts the authority to treat military retired pay as marital property that can be divided between spouses. This was a significant development because, prior to the Act, military retirement pay was considered the sole property of the servicemember. Under the USFSPA, former spouses can receive a share of military retirement pay directly from the Defense Finance and Accounting Service (DFAS), provided certain criteria are met.
However, the USFSPA has a critical limitation: it does not authorize state courts to divide VA disability compensation. This distinction is the source of enormous confusion and litigation in military divorce cases across the country, including in Hillsborough County and throughout the Tampa Bay area.
What Is VA Disability Compensation?
VA disability compensation is a monthly, tax-free payment made by the Department of Veterans Affairs to veterans who have a service-connected disability. The amount is determined by a disability rating system, expressed as a percentage from zero to one hundred percent, assigned based on the severity of the veteran’s condition. A veteran rated at 100 percent disabled may receive several thousand dollars per month in compensation.
VA disability pay is intended to compensate the veteran for the loss of earning capacity and physical suffering caused by injuries or conditions tied to their military service. It is not considered retirement pay, and it is not earned through years of service in the traditional sense. This distinction is foundational to understanding why courts cannot divide it the same way they divide military retirement pay.
For veterans who qualify for both retirement pay and disability compensation, a process called the disability offset can dramatically affect the amount of divisible income available. When a veteran elects to receive VA disability compensation, they must waive an equivalent amount of their retirement pay on a dollar-for-dollar basis. The portion of retirement pay that is waived in favor of disability compensation is no longer subject to division. This is the mechanism at the heart of Howell v. Thornberry.
Howell v. Thornberry: What the Supreme Court Decided
In 2017, the United States Supreme Court issued its decision in Howell v. Thornberry, a case that has had profound consequences for military divorces nationwide, including those handled by every Tampa military divorce lawyer who represents servicemembers or their spouses.
The facts of the case were straightforward. John Howell, a retired Air Force servicemember, and Sandra Howell divorced in Arizona in 1991. As part of their divorce decree, Sandra was awarded fifty percent of John’s military retirement pay. At the time of the divorce, John was not receiving VA disability compensation. Years later, after the divorce was finalized, John applied for and was granted VA disability benefits. To receive those benefits, he waived a portion of his retirement pay, which in turn reduced the amount Sandra received.
Sandra went back to court and obtained an order requiring John to reimburse her for the reduction in her share of his retirement pay. John appealed, and the case eventually reached the Supreme Court. The Court ruled in John’s favor, holding that the Arizona courts could not order a veteran to make up for reductions in retirement pay caused by the post-divorce disability waiver. The ruling made clear that VA disability compensation is off-limits as a divisible asset, even when the effect of receiving it is to reduce the former spouse’s share of retirement pay.
The Howell decision was a sharp reminder that federal law preempts state court orders when it comes to VA disability pay. Florida courts, like courts in every other state, are bound by this ruling. A Tampa military divorce lawyer who counsels clients today must account for the very real possibility that a veteran may apply for or increase their VA disability rating after the divorce is finalized, with potentially significant effects on the former spouse’s income stream.
Combat-Related Special Compensation and Concurrent Retirement and Disability Pay
Two additional federal programs complicate the financial picture in military divorce cases: Combat-Related Special Compensation (CRSC) and Concurrent Retirement and Disability Pay (CRDP).
CRSC is a monthly payment available to eligible retired veterans with combat-related disabilities. It is intended to replace some or all of the retirement pay that was waived to receive VA disability compensation. Critically, CRSC is not considered retired pay under the USFSPA, which means it cannot be divided as marital property. Courts cannot treat CRSC as a substitute for the retirement pay that was waived, and a former spouse has no legal claim to it. The Howell decision reinforced this position.
CRDP is different. It is a program that allows certain veterans with qualifying disabilities to receive both their full retirement pay and their full VA disability compensation simultaneously, without a dollar-for-dollar offset. This eliminates the retirement pay waiver for eligible veterans. Because CRDP restores retired pay rather than replacing it with a non-divisible benefit, courts have generally treated CRDP-restored retirement pay as subject to division.
The distinction between CRSC and CRDP is one that every Tampa military divorce lawyer must understand in detail. These programs can have enormous financial consequences for former spouses who depend on a share of retirement pay for long-term financial security.
The 10/10 Rule and Direct Payment From DFAS
A common point of confusion in military divorce involves what is known as the 10/10 rule. This rule determines whether DFAS will pay a former spouse’s share of military retirement directly to that spouse or whether the servicemember must make those payments manually.
Under the USFSPA, DFAS will pay a former spouse directly only if the couple was married for at least ten years during which the servicemember performed at least ten years of creditable military service. If this threshold is not met, the former spouse can still receive a share of retirement pay through a court order, but DFAS will not process the payments directly. The servicemember is legally obligated to forward the appropriate portion to the former spouse, and enforcement must occur through state court.
It is important to note that the 10/10 rule affects payment logistics, not entitlement. A former spouse who was married for fewer than ten qualifying years can still be awarded a portion of retirement pay by a Florida court. The couple simply does not qualify for direct DFAS disbursement.
How Florida Courts Divide Military Retirement Pay
Florida is an equitable distribution state. This means that marital assets are divided fairly, though not necessarily equally. Military retirement pay earned during the marriage is considered a marital asset subject to equitable distribution under Florida Statutes Section 61.076.
Florida courts use a coverture fraction to calculate what portion of military retirement pay is marital property. The numerator is the number of months of creditable military service performed during the marriage, and the denominator is the total number of months of creditable service at retirement. The resulting fraction is then applied to the retirement benefit to determine the marital share, which is then divided between the parties according to the equitable distribution analysis.
This calculation becomes more complicated when a servicemember has post-divorce promotions or completes additional years of service after separation. Courts must carefully limit the former spouse’s award to the marital portion of the retirement benefit, not the entire benefit as of the date of divorce.
When disability pay enters the picture, the equitable distribution calculation can shift dramatically. As discussed above, a post-divorce disability waiver can reduce the divisible retirement pay. Because Florida courts are bound by Howell v. Thornberry, they cannot simply restore the former spouse’s share by treating disability compensation as a substitute. This reality requires careful drafting of divorce agreements and military qualifying court orders to anticipate and address these contingencies as clearly as possible.
Negotiating Around the Limitations: Practical Strategies
Because VA disability compensation cannot be divided directly, experienced Tampa military divorce lawyers often use other negotiation strategies to achieve a fair outcome for both parties. These approaches do not circumvent federal law but work within it to produce an equitable settlement.
One approach is to offset the disability pay issue through the division of other marital assets. If a servicemember receives significant disability compensation that is not divisible, a former spouse may negotiate for a larger share of other assets such as real property, investment accounts, or other retirement accounts to compensate for the income disparity.
Another approach involves alimony or spousal support. While VA disability compensation cannot be treated as marital property, it is considered income for purposes of alimony calculations under Florida law. A spouse who would otherwise receive a significant share of retirement pay may seek a higher alimony award that accounts for the reduction in their share of retirement pay caused by the disability offset.
Settlement agreements can also include indemnification clauses. While Howell makes clear that courts cannot enforce such clauses to essentially award what amounts to disability pay, parties can sometimes negotiate voluntary agreements in which the servicemember agrees to maintain or minimize the disability waiver during the period of the former spouse’s entitlement. The enforceability of such provisions is limited after Howell, but they remain a part of creative settlement negotiations in complex military divorce cases.
Survivor Benefit Plan (SBP) coverage is another critically important topic in military divorce settlements. SBP is a form of annuity coverage that ensures a former spouse continues to receive a portion of retirement pay even after the servicemember dies. Without a court order requiring SBP coverage, a former spouse may lose all retirement pay income if the veteran passes away. Ensuring that SBP elections are addressed in the divorce decree is one of the most important tasks for any Tampa military divorce lawyer handling a case involving military retirement.
The Importance of a Proper Military Qualifying Court Order
Dividing military retirement pay requires a specific type of court order, often called a Military Qualifying Court Order (MQCO) or a division order accepted by DFAS. This is distinct from the Qualified Domestic Relations Order (QDRO) used to divide civilian retirement accounts. The MQCO must comply with strict DFAS requirements and must clearly specify the formula or percentage for division, the retirement system involved, and other details required by federal regulations.
Drafting errors in an MQCO can result in DFAS rejecting the order, delays in payment, or unintended reductions in what the former spouse receives. In some cases, a poorly drafted order can cost a former spouse tens of thousands of dollars over time. Tampa military divorce lawyers who handle these cases must have direct familiarity with DFAS processing requirements and the nuances of military retirement systems including both the legacy Final Pay and High-3 systems and the newer Blended Retirement System.
Disability Pay and Child Support
While VA disability compensation cannot be divided as a marital asset, it is treated as income for purposes of calculating both alimony and child support under Florida law. Florida’s child support guidelines require courts to consider all sources of income, and VA disability pay qualifies as income under that framework.
This means that a veteran who receives substantial VA disability compensation may still face a significant child support obligation based on that income, even though the compensation itself cannot be divided between the spouses. Understanding how income is defined under Florida child support guidelines is essential for both parties in a military divorce.
Residency, Jurisdiction, and Filing in Tampa
Military families often move frequently, which creates questions about where a divorce should be filed. Florida allows a servicemember or their spouse to file for divorce in Florida if either party has been a Florida resident for at least six months before filing. A servicemember stationed at MacDill Air Force Base in Tampa, for example, can typically establish Florida residency for divorce purposes.
Filing in Tampa, in Hillsborough County Circuit Court, means the case will be governed by Florida divorce law, including Florida’s equitable distribution statutes, while simultaneously being subject to federal laws governing military benefits. Choosing the right forum and understanding how the interplay of state and federal law affects the outcome requires experienced legal guidance. A Tampa military divorce lawyer who regularly practices in Hillsborough County will be familiar with the local courts and the procedural requirements specific to this jurisdiction.
Understanding the VA Disability Rating Process and Its Divorce Implications
The VA disability rating process is not a one-time event. Veterans can submit new claims, reopen prior claims based on new evidence, or request an increase in their rating at any point after discharge. This ongoing nature of the rating process creates a long-term financial variable in every military divorce case. A veteran who receives a ten percent rating at the time of divorce may later receive a seventy or one hundred percent rating, substantially transforming their financial situation and the income stream available to a former spouse.
For a Tampa military divorce lawyer representing a non-servicemember spouse, this ongoing variability is one of the most challenging aspects of military divorce planning. Unlike civilian divorce cases where asset values are largely fixed at the time of settlement, military divorce cases can produce significant financial shifts years or even decades after the decree is entered. Comprehensive legal counsel should address these contingencies during settlement negotiations rather than leaving former spouses vulnerable to post-divorce modifications they cannot legally challenge.
Veterans who are already receiving VA disability compensation at the time of divorce should ensure that their legal representation fully accounts for the interaction between their disability rating, their retirement pay, and the coverture fraction being applied by the court. An increase in the disability rating after divorce will increase the disability waiver and reduce divisible retirement pay, a scenario that must be factored into any realistic financial projection for the post-divorce period.
Military Divorce in the Tampa Bay Area: MacDill AFB and the Local Legal Landscape
Tampa has one of the most significant military presences in the southeastern United States. MacDill Air Force Base, located in South Tampa, is home to United States Central Command and United States Special Operations Command, making it one of the most strategically important installations in the country. Thousands of active-duty servicemembers and their families live in the Tampa Bay area, and a substantial number of veterans have made Hillsborough County their permanent home after separating from service.
This concentration of military and veteran families means that Hillsborough County Circuit Court sees a meaningful volume of military divorce cases. The legal community in Tampa includes attorneys who focus specifically on military family law, and the courts are generally familiar with the procedural and substantive requirements of these cases. For servicemembers and spouses navigating a military divorce in this area, working with a Tampa military divorce lawyer who practices locally and understands the preferences and procedures of Hillsborough County judges can make a meaningful difference in outcomes.
Local knowledge matters in ways that go beyond legal doctrine. Understanding how Hillsborough County judges approach equitable distribution disputes, what documentation DFAS typically requires, and how to efficiently move a military divorce through the local court system are all practical advantages that come from consistent practice in Tampa courts. Veterans and spouses dealing with the complexities of disability pay, retirement division, and SBP coverage deserve representation from attorneys who handle these issues regularly, not occasionally.
The Blended Retirement System and What It Means for Divorcing Couples
Since January 2018, new military recruits have been enrolled in the Blended Retirement System (BRS) rather than the legacy High-3 retirement system. The BRS combines a defined benefit pension component with a Thrift Savings Plan (TSP) component that includes government matching contributions. This hybrid structure introduces new complexities into military divorce cases that every Tampa military divorce lawyer now needs to understand.
Under the BRS, the defined benefit pension is calculated at a lower multiplier than under the legacy system, meaning servicemembers receive a smaller monthly retirement check. However, they also accumulate TSP funds throughout their career, and those funds are divisible as marital property in divorce just like any other retirement account, using a QDRO or equivalent order. Servicemembers who joined after January 1, 2018 and those who elected to opt into the BRS during the transition window are subject to this structure.
Divorcing couples with a servicemember enrolled in the BRS need to evaluate both the pension and the TSP as separate but related marital assets. The TSP division requires a Retirement Benefits Court Order accepted by the TSP, which has its own specific requirements. Failing to address the TSP separately from the pension is a common error that can leave significant marital wealth on the table.
Common Mistakes in Tampa Military Divorce Cases
Even in straightforward military divorce cases, there are recurring errors that can have lasting financial consequences. Understanding these pitfalls is part of what any experienced Tampa military divorce lawyer will address from the outset of representation.
One of the most common mistakes is failing to address SBP in the divorce decree. If the divorce agreement is silent on SBP and the servicemember retires without making a former spouse election, the former spouse loses all entitlement to any share of retirement pay upon the servicemember’s death. Court orders requiring SBP coverage must comply with specific deadlines tied to the date of retirement and must be submitted to DFAS within the time frame required by federal law.
Another common error involves using imprecise language in the MQCO. Orders that use vague formulas, fail to specify the retirement system, or do not account for the disability waiver in appropriate language can be rejected by DFAS or result in payments that do not match the parties’ intent. This type of drafting error is often discovered only years after the divorce when the servicemember retires and DFAS begins processing payments.
A third common mistake is failing to account for the timing of the disability rating. Settlements that treat the servicemember’s current disability rating as a permanent given often produce unfair outcomes. A rating can increase significantly over time, and the resulting reduction in divisible retirement pay can leave a former spouse in a substantially worse financial position than the divorce agreement anticipated. Forward-looking financial analysis is essential in any military divorce involving a veteran who has or is likely to pursue VA disability benefits.
Finally, many individuals make the mistake of handling a military divorce without specialized legal help. The intersection of federal benefit law, state equitable distribution rules, and the specific procedural requirements of DFAS is not a framework that general practitioners encounter regularly. The stakes are high enough, particularly in cases involving substantial retirement pay and significant disability ratings, that the investment in a Tampa military divorce lawyer with specific expertise in military family law is almost always worthwhile.
Frequently Asked Questions
Can a Florida court divide VA disability compensation in a military divorce?
No. VA disability compensation is protected from division under federal law, and Florida courts cannot treat it as a marital asset. The Supreme Court’s decision in Howell v. Thornberry confirmed that state courts may not order a veteran to reimburse a former spouse for reductions in retirement pay caused by a VA disability waiver. While disability pay cannot be divided, it does count as income for purposes of calculating alimony and child support.
What is the Howell v. Thornberry decision and why does it matter in Tampa?
Howell v. Thornberry is a 2017 U.S. Supreme Court ruling holding that courts cannot compensate a former spouse for the reduction in their share of retirement pay that occurs when a veteran elects to receive VA disability compensation. This decision is binding on all Florida courts, including those in Tampa and Hillsborough County. It matters because veterans can apply for or increase their disability ratings after divorce, which can significantly reduce the income a former spouse depends on.
Does my spouse get half my military retirement pay if we divorce in Tampa?
Not automatically. Florida is an equitable distribution state, so military retirement pay earned during the marriage is a marital asset subject to division, but the split is based on what is fair given all relevant circumstances. Courts typically use a coverture fraction to calculate the marital portion of retirement pay and then divide that portion. The exact percentage a former spouse receives depends on factors including the length of the marriage, the length of military service, and other marital assets.
Does the 10/10 rule determine whether I am entitled to military retirement pay?
No. The 10/10 rule only determines whether the Defense Finance and Accounting Service will pay your share directly to you rather than through the servicemember. Even if the marriage does not meet the 10/10 threshold, a Florida court can still award a former spouse a share of military retirement pay. Enforcement would be through the state court system if the servicemember fails to pay.
What is the Survivor Benefit Plan and should I ask for it in my divorce?
The Survivor Benefit Plan is a Department of Defense program that allows a retiring servicemember to elect annuity coverage for a former spouse, ensuring that the former spouse continues receiving a portion of retirement pay after the servicemember’s death. Without a court order requiring SBP coverage, a former spouse loses all entitlement to retirement pay when the veteran dies. Addressing SBP coverage in the divorce decree is one of the most important financial protections a Tampa military divorce lawyer will advise former spouses to pursue.
What is Combat-Related Special Compensation and can my spouse receive part of it?
Combat-Related Special Compensation (CRSC) is a monthly payment made to eligible retired veterans with combat-related disabilities. It is not considered retired pay under the USFSPA and cannot be divided as marital property. A former spouse has no legal claim to CRSC. If a veteran shifts income from divisible retirement pay to non-divisible CRSC, the former spouse’s income may decrease with no legal remedy for recapture.
Can VA disability pay be considered when calculating alimony in Florida?
Yes. Although VA disability compensation cannot be divided as marital property, Florida courts treat it as income when calculating both alimony and child support. This means a veteran receiving significant disability pay may have a higher alimony obligation than their retirement pay alone would suggest. An experienced Tampa military divorce lawyer will analyze the full income picture when advising clients on expected support obligations.
How do I find a qualified lawyer for a military divorce in Tampa?
Military divorce law is a specialized area that requires familiarity with both Florida family law and the federal statutes governing military benefits. When looking for representation, seek a Tampa military divorce lawyer with specific experience drafting Military Qualifying Court Orders, handling DFAS submissions, and advising clients on the long-term financial consequences of disability pay waivers and SBP elections. The stakes in these cases are high, and the rules are technical enough that general family law experience alone may not be sufficient. Schedule a consultation with a Tampa military divorce lawyer before making any decisions about your case, particularly if disability pay, CRSC, or SBP coverage are factors.
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.
Military divorce cases in Tampa carry a level of financial and legal complexity that sets them apart from civilian divorce proceedings. When one or both spouses serve or have served in the United States Armed Forces, the division of retirement pay, disability compensation, and other benefits becomes a central and often contested issue. For anyone navigating this process, understanding exactly which assets can be divided by a court and which ones cannot is essential. A Tampa military divorce lawyer who handles these matters regularly will tell you that the most misunderstood issues invariably involve VA disability compensation and the rules set by federal law governing its treatment in divorce.
This article explains how Florida courts handle military benefits in divorce, what the landmark Supreme Court case Howell v. Thornberry means for divorced military spouses, and what practical options exist for both servicemembers and their spouses when disability pay is a major component of the marital financial picture. Whether you are an active-duty servicemember stationed at MacDill Air Force Base, a recently separated veteran, or the spouse of a military retiree, retaining a Tampa military divorce lawyer early in the process can prevent costly mistakes that are difficult or impossible to correct after the fact.
The Federal Framework That Governs Military Divorce
Before diving into what can and cannot be divided, it is important to understand that military divorce is governed largely by federal law, even when the divorce itself is filed in a Florida state court. The two most important pieces of federal legislation in this area are the Uniformed Services Former Spouses’ Protection Act (USFSPA), passed in 1982, and the Veterans’ Benefits Act, which shapes how VA disability compensation is categorized.
The USFSPA gives state courts the authority to treat military retired pay as marital property that can be divided between spouses. This was a significant development because, prior to the Act, military retirement pay was considered the sole property of the servicemember. Under the USFSPA, former spouses can receive a share of military retirement pay directly from the Defense Finance and Accounting Service (DFAS), provided certain criteria are met.
However, the USFSPA has a critical limitation: it does not authorize state courts to divide VA disability compensation. This distinction is the source of enormous confusion and litigation in military divorce cases across the country, including in Hillsborough County and throughout the Tampa Bay area.
What Is VA Disability Compensation?
VA disability compensation is a monthly, tax-free payment made by the Department of Veterans Affairs to veterans who have a service-connected disability. The amount is determined by a disability rating system, expressed as a percentage from zero to one hundred percent, assigned based on the severity of the veteran’s condition. A veteran rated at 100 percent disabled may receive several thousand dollars per month in compensation.
VA disability pay is intended to compensate the veteran for the loss of earning capacity and physical suffering caused by injuries or conditions tied to their military service. It is not considered retirement pay, and it is not earned through years of service in the traditional sense. This distinction is foundational to understanding why courts cannot divide it the same way they divide military retirement pay.
For veterans who qualify for both retirement pay and disability compensation, a process called the disability offset can dramatically affect the amount of divisible income available. When a veteran elects to receive VA disability compensation, they must waive an equivalent amount of their retirement pay on a dollar-for-dollar basis. The portion of retirement pay that is waived in favor of disability compensation is no longer subject to division. This is the mechanism at the heart of Howell v. Thornberry.
Howell v. Thornberry: What the Supreme Court Decided
In 2017, the United States Supreme Court issued its decision in Howell v. Thornberry, a case that has had profound consequences for military divorces nationwide, including those handled by every Tampa military divorce lawyer who represents servicemembers or their spouses.
The facts of the case were straightforward. John Howell, a retired Air Force servicemember, and Sandra Howell divorced in Arizona in 1991. As part of their divorce decree, Sandra was awarded fifty percent of John’s military retirement pay. At the time of the divorce, John was not receiving VA disability compensation. Years later, after the divorce was finalized, John applied for and was granted VA disability benefits. To receive those benefits, he waived a portion of his retirement pay, which in turn reduced the amount Sandra received.
Sandra went back to court and obtained an order requiring John to reimburse her for the reduction in her share of his retirement pay. John appealed, and the case eventually reached the Supreme Court. The Court ruled in John’s favor, holding that the Arizona courts could not order a veteran to make up for reductions in retirement pay caused by the post-divorce disability waiver. The ruling made clear that VA disability compensation is off-limits as a divisible asset, even when the effect of receiving it is to reduce the former spouse’s share of retirement pay.
The Howell decision was a sharp reminder that federal law preempts state court orders when it comes to VA disability pay. Florida courts, like courts in every other state, are bound by this ruling. A Tampa military divorce lawyer who counsels clients today must account for the very real possibility that a veteran may apply for or increase their VA disability rating after the divorce is finalized, with potentially significant effects on the former spouse’s income stream.
Combat-Related Special Compensation and Concurrent Retirement and Disability Pay
Two additional federal programs complicate the financial picture in military divorce cases: Combat-Related Special Compensation (CRSC) and Concurrent Retirement and Disability Pay (CRDP).
CRSC is a monthly payment available to eligible retired veterans with combat-related disabilities. It is intended to replace some or all of the retirement pay that was waived to receive VA disability compensation. Critically, CRSC is not considered retired pay under the USFSPA, which means it cannot be divided as marital property. Courts cannot treat CRSC as a substitute for the retirement pay that was waived, and a former spouse has no legal claim to it. The Howell decision reinforced this position.
CRDP is different. It is a program that allows certain veterans with qualifying disabilities to receive both their full retirement pay and their full VA disability compensation simultaneously, without a dollar-for-dollar offset. This eliminates the retirement pay waiver for eligible veterans. Because CRDP restores retired pay rather than replacing it with a non-divisible benefit, courts have generally treated CRDP-restored retirement pay as subject to division.
The distinction between CRSC and CRDP is one that every Tampa military divorce lawyer must understand in detail. These programs can have enormous financial consequences for former spouses who depend on a share of retirement pay for long-term financial security.
The 10/10 Rule and Direct Payment From DFAS
A common point of confusion in military divorce involves what is known as the 10/10 rule. This rule determines whether DFAS will pay a former spouse’s share of military retirement directly to that spouse or whether the servicemember must make those payments manually.
Under the USFSPA, DFAS will pay a former spouse directly only if the couple was married for at least ten years during which the servicemember performed at least ten years of creditable military service. If this threshold is not met, the former spouse can still receive a share of retirement pay through a court order, but DFAS will not process the payments directly. The servicemember is legally obligated to forward the appropriate portion to the former spouse, and enforcement must occur through state court.
It is important to note that the 10/10 rule affects payment logistics, not entitlement. A former spouse who was married for fewer than ten qualifying years can still be awarded a portion of retirement pay by a Florida court. The couple simply does not qualify for direct DFAS disbursement.
How Florida Courts Divide Military Retirement Pay
Florida is an equitable distribution state. This means that marital assets are divided fairly, though not necessarily equally. Military retirement pay earned during the marriage is considered a marital asset subject to equitable distribution under Florida Statutes Section 61.076.
Florida courts use a coverture fraction to calculate what portion of military retirement pay is marital property. The numerator is the number of months of creditable military service performed during the marriage, and the denominator is the total number of months of creditable service at retirement. The resulting fraction is then applied to the retirement benefit to determine the marital share, which is then divided between the parties according to the equitable distribution analysis.
This calculation becomes more complicated when a servicemember has post-divorce promotions or completes additional years of service after separation. Courts must carefully limit the former spouse’s award to the marital portion of the retirement benefit, not the entire benefit as of the date of divorce.
When disability pay enters the picture, the equitable distribution calculation can shift dramatically. As discussed above, a post-divorce disability waiver can reduce the divisible retirement pay. Because Florida courts are bound by Howell v. Thornberry, they cannot simply restore the former spouse’s share by treating disability compensation as a substitute. This reality requires careful drafting of divorce agreements and military qualifying court orders to anticipate and address these contingencies as clearly as possible.
Negotiating Around the Limitations: Practical Strategies
Because VA disability compensation cannot be divided directly, experienced Tampa military divorce lawyers often use other negotiation strategies to achieve a fair outcome for both parties. These approaches do not circumvent federal law but work within it to produce an equitable settlement.
One approach is to offset the disability pay issue through the division of other marital assets. If a servicemember receives significant disability compensation that is not divisible, a former spouse may negotiate for a larger share of other assets such as real property, investment accounts, or other retirement accounts to compensate for the income disparity.
Another approach involves alimony or spousal support. While VA disability compensation cannot be treated as marital property, it is considered income for purposes of alimony calculations under Florida law. A spouse who would otherwise receive a significant share of retirement pay may seek a higher alimony award that accounts for the reduction in their share of retirement pay caused by the disability offset.
Settlement agreements can also include indemnification clauses. While Howell makes clear that courts cannot enforce such clauses to essentially award what amounts to disability pay, parties can sometimes negotiate voluntary agreements in which the servicemember agrees to maintain or minimize the disability waiver during the period of the former spouse’s entitlement. The enforceability of such provisions is limited after Howell, but they remain a part of creative settlement negotiations in complex military divorce cases.
Survivor Benefit Plan (SBP) coverage is another critically important topic in military divorce settlements. SBP is a form of annuity coverage that ensures a former spouse continues to receive a portion of retirement pay even after the servicemember dies. Without a court order requiring SBP coverage, a former spouse may lose all retirement pay income if the veteran passes away. Ensuring that SBP elections are addressed in the divorce decree is one of the most important tasks for any Tampa military divorce lawyer handling a case involving military retirement.
The Importance of a Proper Military Qualifying Court Order
Dividing military retirement pay requires a specific type of court order, often called a Military Qualifying Court Order (MQCO) or a division order accepted by DFAS. This is distinct from the Qualified Domestic Relations Order (QDRO) used to divide civilian retirement accounts. The MQCO must comply with strict DFAS requirements and must clearly specify the formula or percentage for division, the retirement system involved, and other details required by federal regulations.
Drafting errors in an MQCO can result in DFAS rejecting the order, delays in payment, or unintended reductions in what the former spouse receives. In some cases, a poorly drafted order can cost a former spouse tens of thousands of dollars over time. Tampa military divorce lawyers who handle these cases must have direct familiarity with DFAS processing requirements and the nuances of military retirement systems including both the legacy Final Pay and High-3 systems and the newer Blended Retirement System.
Disability Pay and Child Support
While VA disability compensation cannot be divided as a marital asset, it is treated as income for purposes of calculating both alimony and child support under Florida law. Florida’s child support guidelines require courts to consider all sources of income, and VA disability pay qualifies as income under that framework.
This means that a veteran who receives substantial VA disability compensation may still face a significant child support obligation based on that income, even though the compensation itself cannot be divided between the spouses. Understanding how income is defined under Florida child support guidelines is essential for both parties in a military divorce.
Residency, Jurisdiction, and Filing in Tampa
Military families often move frequently, which creates questions about where a divorce should be filed. Florida allows a servicemember or their spouse to file for divorce in Florida if either party has been a Florida resident for at least six months before filing. A servicemember stationed at MacDill Air Force Base in Tampa, for example, can typically establish Florida residency for divorce purposes.
Filing in Tampa, in Hillsborough County Circuit Court, means the case will be governed by Florida divorce law, including Florida’s equitable distribution statutes, while simultaneously being subject to federal laws governing military benefits. Choosing the right forum and understanding how the interplay of state and federal law affects the outcome requires experienced legal guidance. A Tampa military divorce lawyer who regularly practices in Hillsborough County will be familiar with the local courts and the procedural requirements specific to this jurisdiction.
Understanding the VA Disability Rating Process and Its Divorce Implications
The VA disability rating process is not a one-time event. Veterans can submit new claims, reopen prior claims based on new evidence, or request an increase in their rating at any point after discharge. This ongoing nature of the rating process creates a long-term financial variable in every military divorce case. A veteran who receives a ten percent rating at the time of divorce may later receive a seventy or one hundred percent rating, substantially transforming their financial situation and the income stream available to a former spouse.
For a Tampa military divorce lawyer representing a non-servicemember spouse, this ongoing variability is one of the most challenging aspects of military divorce planning. Unlike civilian divorce cases where asset values are largely fixed at the time of settlement, military divorce cases can produce significant financial shifts years or even decades after the decree is entered. Comprehensive legal counsel should address these contingencies during settlement negotiations rather than leaving former spouses vulnerable to post-divorce modifications they cannot legally challenge.
Veterans who are already receiving VA disability compensation at the time of divorce should ensure that their legal representation fully accounts for the interaction between their disability rating, their retirement pay, and the coverture fraction being applied by the court. An increase in the disability rating after divorce will increase the disability waiver and reduce divisible retirement pay, a scenario that must be factored into any realistic financial projection for the post-divorce period.
Military Divorce in the Tampa Bay Area: MacDill AFB and the Local Legal Landscape
Tampa has one of the most significant military presences in the southeastern United States. MacDill Air Force Base, located in South Tampa, is home to United States Central Command and United States Special Operations Command, making it one of the most strategically important installations in the country. Thousands of active-duty servicemembers and their families live in the Tampa Bay area, and a substantial number of veterans have made Hillsborough County their permanent home after separating from service.
This concentration of military and veteran families means that Hillsborough County Circuit Court sees a meaningful volume of military divorce cases. The legal community in Tampa includes attorneys who focus specifically on military family law, and the courts are generally familiar with the procedural and substantive requirements of these cases. For servicemembers and spouses navigating a military divorce in this area, working with a Tampa military divorce lawyer who practices locally and understands the preferences and procedures of Hillsborough County judges can make a meaningful difference in outcomes.
Local knowledge matters in ways that go beyond legal doctrine. Understanding how Hillsborough County judges approach equitable distribution disputes, what documentation DFAS typically requires, and how to efficiently move a military divorce through the local court system are all practical advantages that come from consistent practice in Tampa courts. Veterans and spouses dealing with the complexities of disability pay, retirement division, and SBP coverage deserve representation from attorneys who handle these issues regularly, not occasionally.
The Blended Retirement System and What It Means for Divorcing Couples
Since January 2018, new military recruits have been enrolled in the Blended Retirement System (BRS) rather than the legacy High-3 retirement system. The BRS combines a defined benefit pension component with a Thrift Savings Plan (TSP) component that includes government matching contributions. This hybrid structure introduces new complexities into military divorce cases that every Tampa military divorce lawyer now needs to understand.
Under the BRS, the defined benefit pension is calculated at a lower multiplier than under the legacy system, meaning servicemembers receive a smaller monthly retirement check. However, they also accumulate TSP funds throughout their career, and those funds are divisible as marital property in divorce just like any other retirement account, using a QDRO or equivalent order. Servicemembers who joined after January 1, 2018 and those who elected to opt into the BRS during the transition window are subject to this structure.
Divorcing couples with a servicemember enrolled in the BRS need to evaluate both the pension and the TSP as separate but related marital assets. The TSP division requires a Retirement Benefits Court Order accepted by the TSP, which has its own specific requirements. Failing to address the TSP separately from the pension is a common error that can leave significant marital wealth on the table.
Common Mistakes in Tampa Military Divorce Cases
Even in straightforward military divorce cases, there are recurring errors that can have lasting financial consequences. Understanding these pitfalls is part of what any experienced Tampa military divorce lawyer will address from the outset of representation.
One of the most common mistakes is failing to address SBP in the divorce decree. If the divorce agreement is silent on SBP and the servicemember retires without making a former spouse election, the former spouse loses all entitlement to any share of retirement pay upon the servicemember’s death. Court orders requiring SBP coverage must comply with specific deadlines tied to the date of retirement and must be submitted to DFAS within the time frame required by federal law.
Another common error involves using imprecise language in the MQCO. Orders that use vague formulas, fail to specify the retirement system, or do not account for the disability waiver in appropriate language can be rejected by DFAS or result in payments that do not match the parties’ intent. This type of drafting error is often discovered only years after the divorce when the servicemember retires and DFAS begins processing payments.
A third common mistake is failing to account for the timing of the disability rating. Settlements that treat the servicemember’s current disability rating as a permanent given often produce unfair outcomes. A rating can increase significantly over time, and the resulting reduction in divisible retirement pay can leave a former spouse in a substantially worse financial position than the divorce agreement anticipated. Forward-looking financial analysis is essential in any military divorce involving a veteran who has or is likely to pursue VA disability benefits.
Finally, many individuals make the mistake of handling a military divorce without specialized legal help. The intersection of federal benefit law, state equitable distribution rules, and the specific procedural requirements of DFAS is not a framework that general practitioners encounter regularly. The stakes are high enough, particularly in cases involving substantial retirement pay and significant disability ratings, that the investment in a Tampa military divorce lawyer with specific expertise in military family law is almost always worthwhile.
Frequently Asked Questions
Can a Florida court divide VA disability compensation in a military divorce?
No. VA disability compensation is protected from division under federal law, and Florida courts cannot treat it as a marital asset. The Supreme Court’s decision in Howell v. Thornberry confirmed that state courts may not order a veteran to reimburse a former spouse for reductions in retirement pay caused by a VA disability waiver. While disability pay cannot be divided, it does count as income for purposes of calculating alimony and child support.
What is the Howell v. Thornberry decision and why does it matter in Tampa?
Howell v. Thornberry is a 2017 U.S. Supreme Court ruling holding that courts cannot compensate a former spouse for the reduction in their share of retirement pay that occurs when a veteran elects to receive VA disability compensation. This decision is binding on all Florida courts, including those in Tampa and Hillsborough County. It matters because veterans can apply for or increase their disability ratings after divorce, which can significantly reduce the income a former spouse depends on.
Does my spouse get half my military retirement pay if we divorce in Tampa?
Not automatically. Florida is an equitable distribution state, so military retirement pay earned during the marriage is a marital asset subject to division, but the split is based on what is fair given all relevant circumstances. Courts typically use a coverture fraction to calculate the marital portion of retirement pay and then divide that portion. The exact percentage a former spouse receives depends on factors including the length of the marriage, the length of military service, and other marital assets.
Does the 10/10 rule determine whether I am entitled to military retirement pay?
No. The 10/10 rule only determines whether the Defense Finance and Accounting Service will pay your share directly to you rather than through the servicemember. Even if the marriage does not meet the 10/10 threshold, a Florida court can still award a former spouse a share of military retirement pay. Enforcement would be through the state court system if the servicemember fails to pay.
What is the Survivor Benefit Plan and should I ask for it in my divorce?
The Survivor Benefit Plan is a Department of Defense program that allows a retiring servicemember to elect annuity coverage for a former spouse, ensuring that the former spouse continues receiving a portion of retirement pay after the servicemember’s death. Without a court order requiring SBP coverage, a former spouse loses all entitlement to retirement pay when the veteran dies. Addressing SBP coverage in the divorce decree is one of the most important financial protections a Tampa military divorce lawyer will advise former spouses to pursue.
What is Combat-Related Special Compensation and can my spouse receive part of it?
Combat-Related Special Compensation (CRSC) is a monthly payment made to eligible retired veterans with combat-related disabilities. It is not considered retired pay under the USFSPA and cannot be divided as marital property. A former spouse has no legal claim to CRSC. If a veteran shifts income from divisible retirement pay to non-divisible CRSC, the former spouse’s income may decrease with no legal remedy for recapture.
Can VA disability pay be considered when calculating alimony in Florida?
Yes. Although VA disability compensation cannot be divided as marital property, Florida courts treat it as income when calculating both alimony and child support. This means a veteran receiving significant disability pay may have a higher alimony obligation than their retirement pay alone would suggest. An experienced Tampa military divorce lawyer will analyze the full income picture when advising clients on expected support obligations.
How do I find a qualified lawyer for a military divorce in Tampa?
Military divorce law is a specialized area that requires familiarity with both Florida family law and the federal statutes governing military benefits. When looking for representation, seek a Tampa military divorce lawyer with specific experience drafting Military Qualifying Court Orders, handling DFAS submissions, and advising clients on the long-term financial consequences of disability pay waivers and SBP elections. The stakes in these cases are high, and the rules are technical enough that general family law experience alone may not be sufficient. Schedule a consultation with a Tampa military divorce lawyer before making any decisions about your case, particularly if disability pay, CRSC, or SBP coverage are factors.
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.