Military Divorce in Florida
A divorce involving an active-duty servicemember has the same core legal framework as any other Florida divorce, but several federal statutes overlay the state rules. The two most important are the Servicemembers Civil Relief Act (SCRA) and the Uniformed Services Former Spouses' Protection Act (USFSPA). Florida also has its own statutory rules for deployment and time-sharing.
Residency, Jurisdiction, and Where to File
An active-duty servicemember stationed at a Florida installation can satisfy Florida's six-month residency requirement under Florida Statutes § 61.021 even if their state of legal domicile is elsewhere. Where to file the petition depends on the parties' situation. Filing in Florida is convenient when one spouse is stationed here, but a servicemember domiciled in another state may prefer to file there for pension or property reasons.
The Servicemembers Civil Relief Act
The SCRA (50 U.S.C. § 3901 et seq.) protects active-duty servicemembers from default judgments. If a divorce is filed against a deployed servicemember, the servicemember can request a stay of the proceedings for at least 90 days based on a showing that military duties materially affect the ability to appear. Courts routinely grant SCRA stays and may extend them on further showing. A judgment entered against an active-duty servicemember who did not have notice and an opportunity to appear may be set aside.
Dividing Military Retirement: USFSPA and the 10/10 Rule
The Uniformed Services Former Spouses' Protection Act (10 U.S.C. § 1408) authorizes state courts to treat disposable military retired pay as marital property. Under Florida equitable distribution, the marital portion of military retirement is divisible. The "marital portion" is the share of the retirement attributable to service performed during the marriage.
The 10/10 rule is often misunderstood. It is not a rule about whether the retirement can be divided; it is a rule about whether the Defense Finance and Accounting Service (DFAS) will pay the former spouse directly. Direct DFAS payment is available only when the parties were married for at least 10 years that overlap with at least 10 years of creditable military service. If the 10/10 test is not met, the servicemember must pay the former spouse directly. The total dollar amount of the award is not affected.
The 2017 amendment to the USFSPA (the "frozen benefit rule") requires courts to calculate the marital share based on the servicemember's rank and years of service at the time of the divorce, not at retirement. Florida courts apply this rule and award the former spouse a percentage of the hypothetical retired pay calculated under the frozen rank.
Survivor Benefit Plan
The Survivor Benefit Plan (SBP) provides continuing income to the former spouse if the servicemember dies after retirement. The court can require the servicemember to designate the former spouse as the SBP beneficiary. A Deemed Election under USFSPA must be filed with DFAS within one year of the divorce, or the right to SBP coverage is lost regardless of what the judgment says.
Time-Sharing and Deployment
Florida Statutes § 61.13002 governs time-sharing when a servicemember-parent is deployed. The deployment alone cannot be the basis for a permanent change in time-sharing. The court may enter a temporary order for the period of deployment, including authorizing the servicemember's family member (a grandparent or stepparent) to exercise time-sharing during the deployment. When the deployment ends, the prior schedule is automatically restored unless modification is independently warranted.
Child Support and Special Pays
For Florida child support purposes, gross income includes Basic Allowance for Housing (BAH), Basic Allowance for Subsistence (BAS), special duty pay, hazardous duty pay, and similar allowances, even though much of this is not subject to federal income tax. Calculations should use the LES (Leave and Earnings Statement) rather than just W-2 wages.
Health Care Coverage
A former military spouse may qualify for continued TRICARE coverage under the "20/20/20 rule" -- 20 years of marriage, 20 years of creditable service, and a 20-year overlap. Partial coverage under the "20/20/15 rule" is available with a 15-year overlap. Pleading the marriage dates correctly in the petition matters for these federal benefits.
Call 786-522-1411 to discuss your Florida military divorce.
Speak With Our Attorney
Albert Goodwin, Esq. is a Florida-licensed attorney with over 18 years of courtroom experience. He represents clients throughout South Florida in divorce, time-sharing, alimony, equitable distribution, and other family law matters. Call 786-522-1411 or [email protected] for a confidential consultation.