Military Divorce in Florida: Dividing the Military Pension

By Joshua C. Miller, Esq. · Green Bench Law, PLLC · Informational only — not legal advice

In many military divorces, the pension is the single most valuable marital asset — often worth more than the house. It is also the asset most often mishandled, because dividing it requires layering a federal statute on top of Florida equitable distribution law. Get the order language wrong and a former spouse can lose benefits worth hundreds of thousands of dollars, with no way to fix it later.

The starting point: the USFSPA

The Uniformed Services Former Spouses' Protection Act (USFSPA) is the federal law that permits state courts to treat a servicemember's disposable retired pay as marital property divisible in divorce. Florida treats the portion of retired pay earned during the marriage as a marital asset subject to equitable distribution — generally a 50/50 starting point for the marital share, like other marital assets.

Note the word disposable: certain amounts come off the top before division, most importantly retired pay waived to receive VA disability compensation. That waiver issue is significant enough that it gets its own article.

The 10/10 rule — what it actually means

Few rules in military divorce are more misunderstood. The "10/10 rule" — 10 years of marriage overlapping 10 years of creditable service — is not a requirement for dividing the pension. A court can divide military retired pay in a 2-year marriage.

What 10/10 controls is the payment mechanism: it determines whether DFAS (the Defense Finance and Accounting Service) will pay the former spouse's share directly. Without 10/10, the share is still owed — the retiree just has to pay it personally each month, which makes enforcement provisions in the final judgment far more important.

The frozen benefit rule

For servicemembers not yet retired at the time of divorce, federal law now requires the division to be calculated using the member's rank and years of service at the date of the divorce — not at eventual retirement — adjusted by cost-of-living increases. This "frozen benefit" rule, added by the 2017 National Defense Authorization Act, changed decades of practice. Settlement agreements and proposed orders must include the precise data DFAS requires (the "high-3" pay figures and service time as of the decree date), or DFAS will reject the order.

The Survivor Benefit Plan: the quiet deal-breaker

A former spouse's share of retired pay stops at the retiree's death — unless the Survivor Benefit Plan (SBP) covers them. SBP is essentially an annuity that continues payments to a designated beneficiary after the retiree dies. In divorce, three things matter:

• SBP coverage for a former spouse must be negotiated or ordered — it does not continue automatically after divorce.
• The former spouse must submit a "deemed election" to DFAS within one year of the order requiring coverage. Miss the deadline and coverage can be lost permanently.
• SBP premiums cost money, and who bears that cost is itself a negotiable term.

Practical checklist for a Florida military divorce

1. Obtain the member's retirement points or service record and pay data early in discovery.
2. Decide between a fixed-dollar, percentage, or formula award — each shifts risk differently, especially pre-retirement.
3. Draft the Military Retired Pay Division Order to DFAS specifications, including frozen-benefit data.
4. Resolve SBP coverage, premiums, and the deemed election in the same package.
5. Don't forget the Thrift Savings Plan (TSP) — it's a separate asset divided by its own order, more like a civilian 401(k).