Military Retirement and Divorce

Jan 12

Written By

Divorce is never a simple proposition. During the proceedings, parties litigate an equitable division of assets, debt, address issues of financial support , and where any children spend their time. In Florida, state law is equitable division of property acquired during the marriage, called marital property.

When one or both parties involved in a divorce are either active or retired military, things can get complicated. Military pensions can be considered marital property and divided between both spouses. That means, assuming specific criteria are met, a former spouse can receive payments directly from the military.

However, many misconceptions exist about how and why a former spouse may be entitled to a percentage of a military pension. We’re getting into the thick of the discussion today to explore precisely how military retirement is divided during a divorce in Florida.

Different military retirement plans

According to the US Department of Defense, three different military retirement plans are available to service members. Each plan is based on 20 years or more of active duty service. Depending on your rank upon retirement, your average monthly pension will vary.

Final pay plan

The Final Pay plan uses the final pay of a service member to determine a retirement amount they’re entitled to receive. Using this plan, you’ll receive 2.5% of your monthly take-home pay for every year of service. So, to receive 100% of your final take-home pay, you’d have to serve 40 years of active service. Military reserves and non-active duty months count for less in the final calculus.

High-36 plan

The High-36 plan takes a different approach. Instead of using the final pay upon exiting the military, this plan uses the three highest-paid years as their base number. That amount is then multiplied by 2.5% for each year of active duty service.

Redux plan

The Redux option is even more complicated to calculate. Essentially, this plan uses 40% of the High-36 plan number and adds 3.5% for each additional year of service.

Factors that will affect a military divorce and retirement benefits

Beyond the complexities of military retirement calculations, other factors complicate the subject even more. How long you were married, the state where the divorce was filed, and disability are all considered when dividing up this asset.

Marriage duration and the rules around it

The 10/10 rule is often tossed around in discussions of marriage and military pensions. Frequently misunderstood, it has nothing to do with whether a former spouse is entitled to compensation. Instead, it determines where the payment originates: the military or servicemember.

If a marriage is 10 years or longer and overlaps creditable service by 10 years, it falls under the 10/10 rule. In this case, the former spouse can receive payment directly from the military. If it doesn’t, the former spouse must seek payment from the servicemember directly.

The Uniform Services Former Spouses Protection Act (USFSPA)

Enacted in 1982, the USFSPA provides former spouses of military members with financial protection. The act allows state courts to treat military retired pay as a marital asset and divide it during divorce proceedings. If a state court awards a former spouse a share of military disposable retired pay, they can seek payment directly from the military if they meet the 10/10 rule.

According to the act, former spouses can only receive up to 50% of the retirement pension. However, if child support is included, it can be as much as 65% of the amount.

State laws and jurisdictions

While states are allowed jurisdiction over divorce proceedings initiated by residents, military divorces are more complicated. If the military member lives in a state due to deployment only, that state doesn’t have jurisdiction over the divorce. Instead, the state of legal residence is given jurisdiction over the proceedings.

Many states have reduced or even eliminated residency requirements for military divorce. Therefore, regardless of residency status, either party can file for divorce in the state of assignment.

Since the USFSPA allows states to classify retirement earnings as property, they fall under the jurisdiction of state courts and property laws.

Is there any disability involved?

While a former spouse is entitled to a percentage of retirement earnings, they’re not entitled to VA disability pay. VA disability benefits are exempted from being treated as property during divorce proceedings.

How to go about a military divorce after retirement

Seeking a military divorce after retirement is complex due to the many laws involved. Federal and state jurisdiction can affect how simple it is for couples to obtain a divorce decree.

Consider joint decision-making on retirement plans

While not always possible, collaboration during divorce proceedings can simplify the division of assets and retirement plans. Unless there are mitigating circumstances, state law in Florida requires an equitable division of marital assets.

Working together, couples can find a mutually agreeable solution for military divorce after retirement.

Contact an experienced law firm for these proceedings

Typical divorce attorneys don’t have the experience necessary to navigate the complicated path of a military divorce. Seeking experienced help can ensure that both parties are fairly treated and receive what they’re entitled to in a divorce decree.

Busciglio Sheridan & Schoeb are here to guide you through the military divorce process!

Busciglio Sheridan & Schoeb has served Tampa’s military families in marital and family law matters for over 20 years. During this challenging time, you shouldn’t be alone. Reach out to our team for compassionate and experienced guidance. We’ll help ensure you get everything you’re entitled to and protect your assets.