Tampa Military Divorce Attorney
Parties to a divorce are generally required to split their marital property and assets (as well as any debts) in accordance with state law. This is no different for service members and their spouses who are going through a divorce since Florida military divorce cases for the most part are governed by Florida state law. However, federal law controls how retired pay is disbursed to the former spouses of U.S. military service members. Typically, one of the most significant assets in a military divorce is the service member’s right to military retired pay. As such, if you are involved in a Florida Military Divorce it is important to work with a skilled Tampa divorce attorney who is well-versed in the aspects of military divorce law to insure that your military pension rights, either as a service member or as the former spouse, are properly protected.
The Uniformed Services Former Spouse Protection Act
The Uniformed Services Former Spouse Protection Act (USFSPA) was created to protect former spouses, and it governs the division of a service member’s military retired pay. However, the USFSPA provides no independent rights to the ex-spouse for a share of the service member’s retired pay.Instead, the USFSPA provides the state courts with the authority to treat disposable military retired pay of the service member as “marital property,” which then is subject to division in a Florida divorce case. A service member’s disposable military retired pay is considered the gross retired pay less allowable deductions, including VA disability pay.
Depending on how long the parties were married, and how long the service member served in the military, the USFSPA also can provide a very useful method of “enforcement” of a state court order for division of a military pension. If the service member and former spouse were married to each other for at least 10 years; and during the time of marriage, the service member performed at least 10 years of military service creditable toward retirement eligibility, under the USFSPA, former spouses are entitled to receive their court-ordered portion of the service member’s retired pay directly from the Defense Finance and Accounting Service (DFAS). This is often referred to as the “10/10 Rule.” If the conditions of the 10/10 Rule are not met, any payments due the former spouse pursuant to a court ordered division of the service member’s military pension will come directly from the service member, which can be done by mailing a check, setting up an allotment or automatic payment, or some similar method.
The 10/10 Rule is often misunderstood, and many service members, former spouses, attorneys and even judges have misinterpreted this “Rule” to mean that if the marriage did not last for at least 10 years, that there can be no “marital interest,” thus no claim made by the former spouse on a service member’s pension. This is an erroneous interpretation since the 10/10 Rule only affects how the former spouse receives the share of military retired pay to which he or she is entitled pursuant to a divorce. Failure to meet the requirements of the 10/10 Rule does not prevent the state court from making a determination that there is a divisible marital interest in the service member’s military pension. Additionally, the state court can issue garnishment orders for the payment of child support and alimony directly from a service member’s military retired pay even if the 10/10 Rule conditions are not met.
The maximum amount that can be paid to a former spouse from a service member’s disposable retired pay is 50%, but this amount can increase up to 65% if additional pay is garnished from the service member’s retired pay for alimony or child support.
Additional benefits are available to former spouses who meet the requirements of a longer term marriage, and a longer overlap of service by the service member.
- 20/20/15 Rule—If the couple has been married for at least 20 years at the time of the divorce, and the service member has served 20 years towards retirement, but only 15 were during the marriage then the non-military spouse can receive full military medical benefits under the TRICARE system limited to one year following the divorce.
20/20/20 Rule – If the couple has been married for at least 20 years at the time of the divorce, and the service member has at least 20 years of creditable service, and there is an overlap of at least 20 years between the two, not only is the former spouse possibly entitled to up to 50 percent of the retired pension, but he or she is also entitled to full commissary and exchange privileges, and full medical benefits under the TRICARE system. These benefits remain for the life of the former spouse, or the service member, or until the former spouse remarries. If the former spouse’s subsequent marriage terminates, the former spouse’s entitlement to commissary and exchange benefits will be reinstated. Termination of the former spouse’s subsequent marriage does not reinstate his or her rights to medical benefits unless the marriage was annulled.
Other Concerns Specific To Military Families During a Divorce
- Parenting Plans and Timesharing Agreements that work around deployments;
- Postponing court proceedings if the service member is on active duty;
- Determining where to file for divorce since military members can file from where they are stationed, their state of legal residency, or where their spouse resides; and
- Perfecting service of process on an active duty service member.
Contact The Law Office of Laura A. Olson, P.A.
If you are planning to get divorced, and either you or your spouse is a military service member, it is important to work with a divorce attorney who is knowledgeable about military divorce law.. The Law Office of Laura A. Olson, P.A. can help you successfully navigate through your military divorce.. Call 813-222-0888 to schedule a free consultation today.