How Divorce Affects Military Retirement and Survivor Benefits in FL

Divorce is difficult for any family, but it can be especially complex for military families. Service members and spouses face questions that extend beyond property and support.

When the asset in question is a military pension, federal law intersects with state law. We help you understand exactly how divorce affects military retirement, and what protections are available for former spouses.

Military Retirement as Marital Property

Military retirement is often one of the most valuable assets earned during a marriage. In Florida, retirement benefits earned during the marriage are considered marital property.

This means they are subject to division in divorce.

The Uniformed Services Former Spouses’ Protection Act (USFSPA) gives Florida courts authority to divide military retired pay.

While state law determines how property is divided, federal law sets the rules for how that division is enforced. This dual structure means both sets of laws must be followed.

The 10/10 Rule and Direct Payment

Not every divorce results in a former spouse receiving retirement pay directly from the Defense Finance and Accounting Service (DFAS). The 10/10 Rule applies:

• The couple must have been married for at least ten years
• At least ten of those years must overlap with creditable military service

If both conditions are met, DFAS can send the former spouse’s share directly. If not, the service member is responsible for making payments to the former spouse.

Additional information to note:

• The 10/10 Rule governs the method of direct payment by DFAS
• It does not determine whether a former spouse is entitled to a share of the pension

State courts still decide entitlement and the percentage to be awarded.

Dividing Military Pensions in a Florida Divorce

Courts in Florida treat military pensions like other retirement benefits, but they must follow specific federal guidelines. When dividing these pensions, judges often use a formula based on service years and overlap with the marriage.

Factors that may influence how a military pension is divided include:

• The total years of military service
• The number of those years that overlapped with the marriage
• The percentage of the pension that qualifies as marital property
• Any agreements made during divorce proceedings

The portion of retirement earned before marriage is usually treated as non-marital. Only the part earned during the marriage is subject to equitable distribution.

Survivor Benefit Plan (SBP)

The Survivor Benefit Plan provides continuing payments to a designated beneficiary after the death of the service member. Without SBP coverage, a former spouse’s share of retired pay ends when the member dies.

Important points about SBP coverage include:

• A service member may voluntarily elect former spouse coverage
• Florida courts can also order SBP coverage as part of the divorce decree
• Former-spouse SBP election changes generally must be made within one year after the divorce or within one year of the court order requiring coverage
  • If neither the member nor the former spouse acts within the required time, the former spouse may lose eligibility
    • Though there are procedures such as deemed election requests in certain ordered cases
• Premium costs for SBP are deducted from the retirement pay before division

Failing to take the proper steps on time can cause a former spouse to lose survivor benefits entirely. Because this benefit directly affects long-term security, careful planning during divorce is essential.

Health Care Benefits for Former Spouses

In addition to retirement pay, some former spouses may qualify for continued health care under TRICARE. Eligibility depends on the length of the marriage and overlap with military service.

Examples include:

• 20/20/20 rule
  • At least 20 years of marriage
  • 20 years of military service
  • 20 years overlapping
  • The former spouse may qualify for full health care benefits
• 20/20/15 rule
  • At least 20 years of marriage
  • 20 years of service
  • 15 years overlapping
  • Provides one year of transitional health care coverage

If these thresholds are not met, health care benefits usually end with the divorce. Knowing these rules helps military spouses plan ahead for medical needs.

Rights of Former Spouses

A former spouse may receive a share of the pension, survivor benefits, or health care. That is only if these rights are secured during the divorce process. Florida courts must address these issues in the divorce decree for it to be enforceable.

Former spouses also need to take proactive steps, such as submitting required paperwork to DFAS within a strict deadline.

Even when a court order grants rights, failure to act within the time limits can result in losing benefits permanently.

Federal and State Interaction

Florida courts apply equitable distribution, but they must respect the limits set by federal law.

A few considerations:

• Only “disposable retired pay” may be divided under federal rules
  • Disposable retired pay is gross retired pay minus certain authorized deductions
  • Including VA disability offsets and SBP premiums in some cases
• Disability pay (for example, VA disability compensation) is excluded from the division as disposable retired pay
• DFAS will pay a former spouse up to 50 percent of the member’s disposable retired pay in accordance with court orders
  • Courts cannot force DFAS to pay more than that

This combination of state and federal rules creates a unique process. A Florida divorce settlement involving military retirement must be drafted with these restrictions in mind to avoid errors that DFAS will not honor.

Common Issues in Military Divorce Cases

Dividing military benefits in divorce often creates complications. Some of the most common issues include:

1. Misunderstanding the difference between marital and non-marital service years
2. Failing to elect SBP coverage within the required deadline
3. Overlooking the impact of disability pay on the division of retirement
4. Confusion over whether the 10/10 Rule affects entitlement or only the method of payment
5. Missing DFAS filing deadlines for processing orders

Addressing these issues during divorce proceedings avoids problems later.

Protecting Military Retirement in a Florida Divorce

Divorce involving military service is not only about dividing property today. It also affects future retirement pay and long-term survivor benefits. Choices made during the divorce process will determine whether those rights are preserved or lost.

At Nest Law, we guide military families through the complexities of dividing pensions, securing SBP coverage, and ensuring that benefits are handled correctly. Reach out to us today.

This blog post is for informational purposes only and should not be considered legal advice. For guidance regarding your specific situation, please consult with a qualified Florida family law attorney.