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, providing one year of transitional TRICARE following the divorce. Pleading the marriage dates correctly in the petition matters for these federal benefits, and the dates in the final judgment will be the dates DEERS and TRICARE rely upon when the former spouse applies for benefits. A judgment that misstates the marriage date by even a few days can disqualify the former spouse from benefits that would otherwise be available for the rest of his or her life.

Spouses who do not meet the 20/20/20 or 20/20/15 thresholds are not entitled to continued TRICARE but may purchase Continued Health Care Benefit Program (CHCBP) coverage at the unsubsidized premium for thirty-six months after the divorce, providing a bridge to private or employer-provided coverage. CHCBP must be elected within sixty days of loss of TRICARE eligibility, and missed deadlines are not generally curable.

Concurrent Receipt and the Howell Problem

The interaction between disability compensation from the Department of Veterans Affairs and military retired pay creates one of the most difficult problems in military divorce. A retiree who is rated for a service-connected disability may waive a portion of taxable retired pay in exchange for an equal amount of nontaxable VA disability compensation. The waived portion is excluded from "disposable retired pay" under 10 U.S.C. § 1408(a)(4) and is therefore unavailable for division as marital property. The Supreme Court's decision in Howell v. Howell, 137 S. Ct. 1400 (2017), held that a state court cannot order the retiree to indemnify the former spouse for the reduction in the marital share caused by a post-judgment disability waiver, because doing so is functionally an order to divide the disability compensation itself.

The practical implications are significant. A judgment awarding the former spouse a percentage of disposable retired pay is vulnerable to substantial reduction if the retiree later elects to waive retired pay for disability. Drafting around the Howell limitation requires creative solutions: alimony provisions secured by separate assets, life insurance designations independent of SBP, valuation of the disability waiver risk into the overall settlement, or trade-offs in equitable distribution that compensate the former spouse upfront for the contingent loss. None of these is a perfect substitute for an indemnification clause, but each can mitigate the exposure.

Thrift Savings Plan Division

The Thrift Savings Plan (TSP) is the federal government's defined-contribution retirement plan available to servicemembers and federal civilian employees. The TSP is divided by a Retirement Benefits Court Order (RBCO) that conforms to the requirements of TSP regulations rather than ERISA. The order may award the former spouse a stated dollar amount or a percentage of the participant's account as of a stated valuation date. Earnings and losses between the valuation date and the date of distribution are allocated according to the order's terms. Loans outstanding at the valuation date complicate the calculation; the order should specify whether the loan balance is treated as part of the account for division purposes. Roth contributions and traditional contributions are tracked separately, and the order should address whether the award comes proportionally from each or solely from one source for tax-planning reasons.

Survivor Benefit Plan Election Mechanics

The Survivor Benefit Plan 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 former-spouse SBP beneficiary, and the level of coverage is typically tied to the marital share of retired pay. A Deemed Election under USFSPA must be filed with DFAS within one year of the date the divorce, dissolution, or annulment is effective; the one-year deadline is jurisdictional. The deadline is missed even when the parties have an agreement, if the paperwork is not actually submitted to DFAS within the window. The cost of SBP coverage is deducted from gross retired pay before the marital share is calculated, and the marital settlement agreement should specify which spouse bears the cost in real economic terms.

SBP coverage is irrevocable in many circumstances; once the former-spouse election is made and the deemed election processed, changing the beneficiary back to a current spouse or to children typically requires the former spouse's consent or the death of the former spouse. Counsel should explain to clients that SBP is a long-term commitment and that the choice between SBP, private life insurance, and other forms of post-mortem security has different cost, control, and tax characteristics. SBP is paid to the former spouse for life, indexed to inflation through cost-of-living adjustments; private life insurance pays a fixed sum at death and depends on the insured's continuing willingness to pay premiums.

Service of Process on Active-Duty Members

Serving the divorce petition on an active-duty servicemember can be straightforward when the member is stateside, but it raises complications when the member is deployed overseas or stationed at a closed installation. Hague Convention service applies to members stationed in signatory countries. Service through the member's command, while sometimes used, is not always sufficient under host-nation law and the SCRA. Counsel for the filing spouse should document the service efforts carefully; defects in service can produce judgments vulnerable to vacatur under SCRA provisions allowing reopening of default judgments entered against deployed servicemembers.

Income for Child Support and Alimony

The Leave and Earnings Statement (LES) issued to every servicemember is the definitive source for income calculation in military divorces. The LES discloses base pay, BAH, BAS, special pays (flight pay, sea pay, dive pay, parachute duty pay, hazardous duty pay), combat zone tax exclusion, retired-pay deductions, SGLI premiums, TSP contributions, and any garnishments. Florida child support and alimony calculations use gross income, which under Florida Statutes § 61.30(2) includes nontaxable allowances such as BAH and BAS. Counsel should obtain at least six months of LES records and the previous year's W-2 to capture the variability in special pays and to identify items such as enlistment, reenlistment, and retention bonuses that are paid only intermittently.

Combat zone tax-excluded income is income for support purposes even though it is not reported as wages on the W-2. The same is true of imminent danger pay, family separation allowance, and overseas housing allowance for members stationed abroad. Reservists and National Guard members on active-duty orders should be evaluated against both their military pay and their civilian earnings; the support calculation may need to anticipate transitions between active duty and civilian status.

Garnishment and Direct Allotment

Once the judgment establishes child support or alimony, DFAS can be ordered to garnish the obligor's pay under 42 U.S.C. § 659 for support obligations or under USFSPA for property awards. The order must conform to DFAS specifications and is processed centrally; rejection for noncompliance is common in the first submission and counsel should expect to revise and resubmit. Voluntary allotments to a former spouse remain available but are revocable by the servicemember and provide weaker security than garnishment. For obligors who are reluctant to comply, garnishment is the appropriate enforcement tool from the date of the judgment.

Tax Treatment of Military Retired Pay

Military retired pay is taxable as ordinary income to the recipient. Under the 2017 Tax Cuts and Jobs Act, alimony provisions in divorces executed after December 31, 2018 are not deductible by the payor and not includable in the recipient's income. Property division payments under USFSPA, however, follow the recipient -- meaning the former spouse pays the income tax on the share of retired pay paid directly to her under the 10/10 rule. Where direct DFAS payment is unavailable and the retiree pays the former spouse out of his after-tax retired pay, the tax burden falls on the retiree without an offsetting deduction. The marital settlement agreement should account for this asymmetry, either by adjusting the gross percentage to produce an equivalent after-tax result or by structuring the payment as a direct DFAS transfer wherever the 10/10 test permits.

Appellate Considerations

Florida appellate courts apply federal law to questions of military retired pay division, SCRA protections, and USFSPA mechanics. The interplay between state equitable distribution and federal preemption produces recurring reversals when trial courts treat as marital property amounts that federal law excludes -- most commonly disability compensation and waived retired pay. Counsel should preserve federal preemption issues with specific objections and request findings that identify the statutory basis for each component of the award. A judgment that survives state-law scrutiny but cannot withstand federal preemption analysis is incomplete protection for the prevailing party.

Call 786-522-1411 to discuss your Florida military divorce.