In a military retirement divorce, Florida courts treat the portion of retired pay earned during the marriage as marital property and divide it under Fla. Stat. 61.075, while federal law (the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. 1408) controls how much DFAS can pay a former spouse directly and how the benefit is calculated.
This guide from Griffin Family Law, PLLC is written for NAS Jacksonville and Naval Station Mayport families. It covers the marital share of retired pay, the frozen benefit rule, the 10/10 rule, the 20/20/20 and 20/20/15 rules for TRICARE, the Survivor Benefit Plan deadline, VA disability pay, and deployment stays. Our Jacksonville military divorce lawyer team can explain how these rules apply to your service record.
Key Takeaways
- Florida courts treat the marital share of military retired pay as property under Fla. Stat. 61.075, and 10 U.S.C. 1408 allows this only if the court has jurisdiction over the member through residence, domicile, or consent.
- For divorces finalized after December 23, 2016, the frozen benefit rule values the former spouse’s share using the member’s rank and years of service on the divorce date, plus cost-of-living adjustments.
- DFAS pays a former spouse directly only when the marriage lasted at least 10 years overlapping 10 years of creditable service (the 10/10 rule), and direct property payments are capped at 50 percent of disposable retired pay.
- A 20/20/20 former spouse keeps full TRICARE, commissary, and exchange privileges; a 20/20/15 former spouse keeps TRICARE for one year after the divorce.
- Survivor Benefit Plan coverage for a former spouse must be elected, or deemed elected by the former spouse, within one year of the divorce.
- VA disability compensation cannot be divided as property, and under Howell v. Howell,l a Florida court cannot order the member to reimburse a former spouse for retired pay waived to receive it.
Is Military Retirement Considered Marital Property in Florida?
Yes. Under Fla. Stat. 61.075(6)(a)1.e, marital assets include all vested and nonvested benefits, rights, and funds accrued during the marriage in retirement and pension plans. Military retired pay fits that definition even when the member is years away from retiring. Florida presumes an equal split of marital assets, and the judge may depart from it only with written justification. Our overview of division of assets in a Florida divorce explains how classification and valuation work for other property.
Federal law adds one condition. Under 10 U.S.C. 1408(c)(4), a Florida court may treat retired pay as property only if the member resides in Florida for reasons other than military assignment, is domiciled in Florida, or consents to the court’s jurisdiction. A sailor stationed at Mayport whose legal domicile is another state can object to Florida dividing the pension, so where you file matters.
Deployment and the Servicemembers Civil Relief Act
A deployed member can slow the case but not avoid it. Under the Servicemembers Civil Relief Act, 50 U.S.C. 3932, a court must grant a stay of at least 90 days when an active-duty member with notice of the case requests one with a letter explaining how duty materially affects the ability to appear and when the member will be available, plus a commanding officer’s letter confirming that leave is not authorized. The court may grant additional stays, and property division resumes when the stay ends.
How Does USFSPA Divide a Military Pension in Divorce?
The Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. 1408, does not divide anything on its own. It authorizes state courts to treat “disposable retired pay” as marital property, defines that term, and sets the rules DFAS follows when paying a former spouse.
Disposable retired pay is gross retired pay minus certain deductions, including amounts waived to receive VA disability compensation and Survivor Benefit Plan premiums. Any percentage awarded is applied to this net figure. Under section 1408(e)(1), direct payments for property division cannot exceed 50 percent of disposable retired pay, rising to 65 percent only when support garnishments are also in place.
Florida courts usually express the former spouse’s share with a coverture fraction: months of marriage that overlapped creditable service, divided by total months of creditable service. Multiply the retired pay by that fraction, and the former spouse typically receives half of it.
What Is the Frozen Benefit Rule in a Military Retirement Divorce?
The frozen benefit rule, added by the Fiscal Year 2017 National Defense Authorization Act, changed how the former spouse’s share is valued when the member has not yet retired at divorce. Under 10 U.S.C. 1408(a)(4)(B), the retired pay available for division equals what the member would have received if they retired on the date the divorce became final, with rank and years of service frozen at that moment, plus cost-of-living adjustments from then on.
Before this change, the former spouse’s percentage was applied to actual retired pay at retirement, including promotions earned after the divorce. For orders that became final after December 23, 2016, those post-divorce increases belong to the member alone.
What the court order must include
DFAS will not approve a frozen benefit order that is missing required data. According to the DFAS page on NDAA 2017 court order requirements, the order must state the award (a fixed amount, percentage, formula, or hypothetical figure), the member’s high-3 pay amount at divorce for members who entered service on or after September 8, 1980, and the years of creditable service or, for Reserve and Guard members, creditable retirement points. A missing variable sends the order back for clarification and can delay payments for months.
A worked illustration with round numbers
The numbers below are an illustration only. Actual figures depend on the member’s retirement system, pay history and dates, and a judge may divide the marital share unequally if the statutory factors justify it.
- The member has 16 years of creditable service when the divorce becomes final, and the marriage overlapped 12 of those years.
- The coverture fraction is 12/16, or 75% of the hypothetical retired pay.
- Assume the frozen hypothetical retired pay is $2,400 per month. The marital share is $1,800.
- An equal split gives the former spouse $900 per month, plus proportional cost-of-living adjustments.
- If the hypothetical retired pay instead falls between $2,000 and $3,000, the former spouse’s share lands between roughly $750 and $1,125 per month.
Because the member’s actual retired pay years later may be far higher, the frozen benefit rule often produces a smaller share than older cases suggest. That is one reason the Thrift Savings Plan and the accounts covered in our post on what happens to your 401(k) in a Florida divorce become bargaining tools in military settlements.
What Is the 10/10 Rule in a Military Divorce?
The 10/10 rule decides who writes the check, not whether the former spouse has a right to a share. Under 10 U.S.C. 1408(d)(2), DFAS may pay a former spouse directly for a property division only if the couple was married at least 10 years and at least 10 of those years overlapped the member’s creditable service.
If the marriage falls short of 10/10, a Florida court can still award a share of the retired pay. The member makes the payments personally under the court order, and the former spouse enforces it in the Florida courts if payments stop. The 10/10 rule does not apply to garnishments for child support or alimony.
How direct payment works
- Obtain a certified copy of the final judgment or a separate retired pay division order in a form DFAS accepts.
- Submit DD Form 2293, Application for Former Spouse Payments from Retired Pay, with the certified order to the DFAS Garnishment Law Directorate.
- DFAS reviews the order for jurisdiction, the 10/10 requirement, and, for frozen benefit cases, the required pay data.
- Under section 1408(d)(1), payments begin within 90 days after DFAS is served, or within 90 days after the member starts receiving retired pay.
What Is the 20/20/20 Rule for Military Divorce Benefits?
The 20/20/20 rule governs health care and base privileges, not retired pay. Under 10 U.S.C. 1072(2)(F) and the TRICARE former spouse eligibility page, a former spouse keeps TRICARE in their own name if the marriage lasted at least 20 years, the member performed at least 20 years of creditable service, and all 20 years of marriage overlapped the service. A 20/20/20 former spouse also keeps commissary and exchange privileges. Coverage ends upon remarriage or enrollment in an employer-sponsored health plan, and eligibility is confirmed through DEERS using the marriage certificate, divorce decree, and the member’s DD Form 214 or statement of service.
The 20/20/15 rule
Under 10 U.S.C. 1072(2)(H), a former spouse whose 20-year marriage overlapped at least 15 but fewer than 20 years of creditable service receives TRICARE for one year from the divorce date, with no commissary or exchange privileges. Former spouses who miss both thresholds lose TRICARE on the divorce date and may need the Continued Health Care Benefit Program or a civilian plan.
What Happens to the Survivor Benefit Plan After Divorce?
Retired pay stops when the member dies. The Survivor Benefit Plan continues a portion of retired pay to a survivor, so a former spouse’s share of the pension is protected only if former spouse SBP coverage is in place.
Divorce does not convert spouse coverage into former spouse coverage automatically. DFAS requires the member to submit DD Form 2656-1, SBP Election Statement for Former Spouse Coverage, within one year of the divorce. If the court order requires coverage and the member fails to act, the former spouse may file a written deemed election request with DFAS within that same one-year window. Missing the deadline usually means you lose coverage, which is why our attorneys at Griffin Family Law calendar this date as the day a military judgment is signed.
Can VA Disability Pay Be Divided in a Florida Divorce?
No. Many retirees waive part of their retired pay to receive tax-free VA disability compensation, and 10 U.S.C. 1408(a)(4) excludes the waived amount from disposable retired pay. In Howell v. Howell, 581 U.S. 214 (2017), the United States Supreme Court held that a state court may not order a veteran to indemnify a former spouse for the drop in the former spouse’s share caused by a later disability waiver.
For a Jacksonville former spouse, a percentage award can shrink if the member later qualifies for a VA rating. Florida courts can still consider disability pay when setting alimony or child support, and a settlement can address the risk through other assets or support terms. Our article on how military service changes divorce covers those support issues in more depth.
Common Mistakes Our Attorneys See in Military Pension Cases
Griffin Family Law, PLLC handles divorces and marital property division for active-duty, Reserve, and retired members and their spouses throughout Duval, Clay, Nassau, and St. Johns counties. These errors cost families the most.
- Settling the pension in vague language. An order that awards “50 percent of the marital share” without the high-3 figure, years of service, and a defined formula will be rejected by DFAS.
- Assuming no 10/10 means no pension share. The 10/10 rule affects only direct payment from DFAS.
- Forgetting the SBP deadline. The window for a former spouse deemed election is one year from the divorce date, not from retirement.
- Ignoring the VA waiver risk. A former spouse who relies on a percentage of retired pay should negotiate protection through other assets.
- Overlooking Reserve and Guard points. For Reserve members at NAS Jacksonville, the order must state creditable retirement points, not just years.
How to prepare: bring the member’s most recent Leave and Earnings Statement, a Statement of Service or retirement points summary, the current SBP election, any VA rating decision, and the marriage certificate. Those documents let an attorney compute the coverture fraction and frozen benefit figure before negotiations begin.
Frequently Asked Questions
How is military retirement divided in a Florida divorce?
Florida treats retired pay earned during the marriage as marital property under Fla. Stat. 61.075 and usually applies a coverture fraction (months of marriage overlapping service divided by total months of service) to identify the marital share. The former spouse typically receives half of that share, and for divorces finalized after December 23, 2016, the benefit is valued at the member’s rank and years of service on the divorce date plus cost-of-living adjustments.
Does a spouse automatically get half of a military pension in Florida?
No. A former spouse is entitled to a share only of the portion earned during the marriage, and Florida’s equal distribution presumption can be adjusted based on statutory factors. Federal law also caps direct DFAS payments for property division at 50 percent of disposable retired pay.
What is the 10/10 rule in a military divorce?
The 10/10 rule under 10 U.S.C. 1408(d)(2) requires at least 10 years of marriage overlapping 10 years of creditable service before DFAS will pay a former spouse directly from retired pay. It does not decide whether the former spouse is entitled to a share, only who makes the payment.
What does a 20/20/20 former spouse receive?
A former spouse with 20 years of marriage, 20 years of member service, and 20 years of overlap keeps TRICARE in their own name plus commissary and exchange privileges for as long as they remain unmarried and are not enrolled in an employer health plan. A 20/20/15 former spouse keeps TRICARE only for one year after the divorce.
Can VA disability be divided in a military divorce?
No. VA disability compensation is not part of disposable retired pay, and under Howell v. Howell, a state court cannot order the member to reimburse a former spouse for retired pay waived to receive it. Disability income can still count when calculating alimony and child support.
How long does a former spouse have to request Survivor Benefit Plan coverage?
One year from the date of the divorce. The member files DD Form 2656-1 to elect former spouse coverage, or the former spouse submits a written deemed election request to DFAS within the same one-year window if a court order requires coverage.
Talk to Griffin Family Law About Your Military Retirement Divorce
A military retirement divorce in Florida involves two sets of rules that must line up: Fla. Stat. 61.075 on the state side and 10 U.S.C. 1408 on the federal side. Getting the frozen benefit language, the 10/10 payment route, TRICARE eligibility,y and the SBP deadline right the first time protects both spouses’ long-term security. Griffin Family Law, PLLC serves NAS Jacksonville and Naval Station Mayport families from our Neptune Beach office.
Our military divorce attorneys in Jacksonville can review your service record and draft orders DFAS will accept. Schedule a free consultation online or call (904) 372-9708 to get started.
