The calculation of military retirement benefits are tricky and are often times the source of great confusion to DFAS if not correctly set forth in the Military Support Order
Posted by John F. Greene, Esq.

DFAS is overpaying my ex-wife her share of my military retirement. How is this possible? I had a lawyer for my divorce.

I recently met with a military service member who retired from active duty as an E-7 after 24 years of service. He was divorced 10 years ago when he was an E-5 Staff Sargent with 14 years of credible service. DFAS is now paying his ex-wife her share of the retirement at a rate commensurate with an E-7 with 24 years of service. This is not permissible under Florida law.

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Destin Florida Military Divorce LawyerEnhancements to a military pension based upon time in grade and promotions accruing after dissolution are non-marital and not subject to equitable distribution. The problem arose because his previous lawyer failed to use the correct language in the Marital Settlement Agreement and Military Support Order. I have taken his case back to court and am working to correct this injustice.

Military divorces often present unique issues. FS 61.021 requires that a party reside in Florida for six months before filing a proceeding for dissolution of marriage. Florida courts have recognized an exception to the residency requirement for members of the military, allowing them to seek divorce in Florida without proving actual presence in the state during the six month statutory period.

A person who was a Florida resident before entering the military and never established a permanent residence elsewhere continues to be a Florida resident for purposes of a dissolution proceeding. Owning a home, being registered to vote, and having a vehicle registered in Florida provide evidence of residency for military personnel. Military members and their spouses are presumed to be residents of Florida while living in the state. However, being in Florida for a short period of time and expressing an intent to reside in Florida in the future does not establish residency. Although physical presence is excused for military personnel, concurrent intent to be a permanent Florida resident remains an element of the residency test.

The Servicemember’s Civil Relief Act, 50 U.S.C. 501 et seq., provides procedural safeguards for active duty military personnel while deployed. Failure to comply with the provisions of the act may result in any judgment being voidable by the military spouse if there is a meritorious defense to the action or some part of it, and military service materially affected the ability to defend the action.

What about my retirement benefits?

Military retirement benefits that accrue during the marriage are marital assets subject to equitable distribution. For purposes of valuation the cut-off date is the date of filing of the petition for dissolution of marriage. Thus all retirement points earned on a military pension after the date of filing are non-marital. In cases where the member is still on active duty, the pension value should be limited to the rank and years of service of the member as of the date of filing.

A spouse is entitled to a portion of the gross monthly retirement of the member spouse, less any disability pay, when it vests. The award is expressed as a percentage and is computed as one-half (1/2) of the fraction created by the number of months of credible service during the marriage divided by the total number of months of credible service at the time of retirement. Each party is responsible for payment of the taxes on their share of the retirement benefits. Remarriage does not affect retirement benefits as this is a marital property right.

A military pension terminates upon the death of the retired member. However, payments may continue to the surviving spouse if the member elects to insure the pension through a survivor benefit plan. The election must be made within one year of the dissolution and the “deemed election” form must be served upon the Defense Finance and Accounting Service (DFAS).

The 10 year rule applies only to the method by which payments of retirement benefits are made. Following a marriage of 10 years duration or longer, the recipient spouse’s payments are remitted directly from DFAS. A 20/20/20 spouse (20 years or more marriage; 20 years of military service; and 20 years overlap between military service and marriage) is entitled to full medical, commissary exchange and theater privileges for life. A 20/20/15 former spouse only gets one year of medical benefits. Active duty military COBRA is available for a quarterly premium for a period of three years.