Military Divorce has the perfect intersection of Federal and State Law. Parties have multiple residencies and thus jurisdictional issues. Deployment makes time-sharing and child custody issues difficult And the military retirement and benefits packages are some of the most valuable seen in either the Federal or civilian workforce today. Recognizing that, below we discuss the meat and potatoes of what every service member should know at the onset of his or her military divorce case.
Our Tampa Bay Divorce Lawyers have seen military divorce clients seemingly resigned to the belief that their spouse will receive 50% of his or her military pension upon retirement. Yet Florida law only requires an equitable distribution of assets and debts that are occurred during the marriage. So in Florida, while your military pension may not have vested, you have “earned” a portion of your military pension for each year that you have been married that overlapped with your service. So, if you have 12 years of service of which 10 years overlap with your marriage, you will have ten years of military “pension” that is subject to an equitable distribution. So if you served in the military before your marriage, that portion of military retirement earnings is yours and yours alone. Along the same vein, if you continue to serve in the military after you are divorced, the military retirement you earn will be yours and yours alone. The only case where your spouse gets 50 % of your military retirement by law would be if you were married to your spouse for every day of military service.
Florida has a preferred method of determining the exact percentage of retirement that the service member’s spouse should receive upon divorce. We say percentage because Florida prefers to award a specific fraction in the final judgment. This “Marital Coverture Fraction” is then reported via a special Order to the Department of Defense (“DOD”).
The DOD then takes out the specific percentage of the retired pay via involuntary allotment and awards it to the spouse. In the case of a retired military member, the marital fraction is easy because we know the exact years of service and the precise pay grade and disposable retired pay at the time of the divorce. But in the case of an active duty military member, the fraction is a little more difficult. That’s because there are a few viable methods to compute the fraction. But naturally, some methods will favor the service member, and other methods will favor the spouse.
For example, the “deferred distribution” method was favored for quite some time. In this method, the Order requires the parties’ to wait until the service member has retired, and then compute the fraction based on his or her final retired pay. The problem with the deferred distribution method is that it gives the spouse some “credit” for pay increases and pay grade promotions that happen after the parties have split. While not required, the best Martial Coverture Fraction to use for the service member is to pretend that the service member retires normally at 20 years at his or her current high-three pay rate. This way, while the fraction is larger, it does not artificially inflate the base military retired pay to a level that was not earned during the intact marriage. This formula is articulated as:
0.5 X Military Retired Pay if Service member retired at 20 years X (Number of Months Married While in Service/ 20 years of service)
While it is all nice and dandy to discuss best practices in military retirement division be forewarned, what you agree to will trump everything else. On a regular basis, our office receives calls from retired service members who are shocked and dismayed that their long-divorced spouse has come out fo the woodwork to claim 50% of their disposable retirement.
How can this be fair?
Unfortunately for the service-member, in many of these cases the unfair amount of retirement being taken out is due to a bad deal signed and executed, often many years ago. And surprisingly, the vast majority of these service members were represented by divorce attorneys who apparently were not versed in military pension law. If you serviced in the military, your pension is your most prized asset. Be careful to preserve the asset as much as possible in accordance with Florida law. When it is time to settle your case, every word in the pension section of your agreement matters.
On the opposite end of the spectrum, some service members mistakenly believe that their pensions are secure as long as the marriage does not last ten years during service. This is false. The ten-year rule is a department of defense rule. Simply, the department will not get involved taking a portion of retirement by allotment and be sending to the servicemember’s spouse. But Florida will get in involved. Florida law is that your pension is subject to division for any amount of time that you and your spouse were married during service. Now, the shorter the marriage the smaller the amount of pension that the spouse will receive. And the smaller the pension amount, the more likely the spouse can be “bought out” of her share with some other asset. But nonetheless, 10 years is not a bright line magical mark that must be met for the spouse to receive a share of the pension.
This is one of the few areas where Federal Law trumps any agreements you and your spouse might make:
A Judge cannot Order you to secure an alimony or child support award with your SGLI (military life insurance).
A Judge can order you to secure your child support or alimony with regular civilian life insurance however.
There are Pension Defenses in Select Circumstances
The Almost 20/20/20 Spouse: Delay Finalizing the Divorce and Everyone Wins
Deployment? You Can Assign a Family member to Exercise Your Timesharing!
BAH & BAS is taxable, but what rate to use?
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