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 RETIRED PAY – Military retirement benefits that accrue during the marriage are marital assets subject to equitable distribution. For purposes of valuation, DFAS has set the cut off date as the date of entry of Final Judgment. Thus all retirement points earned on a military pension after entry of Final Judgment 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 entry of Final Judgment.
A spouse is entitled to a portion of the gross monthly retirement of the member spouse, less any disability pay when it vests. For those service members already receiving military retired pay the following Coverture formula is used. 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 creditable service during the marriage divided by the total number of months of creditable service at the time of retirement.
For those service members still on active duty or reservists who have not yet started receiving military retired pay, a “High Three” calculation is used. The marital portion of future retired pay is calculated by determining the service member’s average monthly base pay for the 36 months prior to the date of Final Judgment. A factor of 2.5% is then multiplied by the number of years of creditable service during the marriage. That resulting percentage is multiplied by the “High Three” monthly base pay average and then divided by 2 to determine the spouse’s actual dollar award of military retired pay as or the date of Final Judgment.
The spouse is also entitled to all military Cost of Living Adjustments on said amount becoming effective after the date of the Final Judgment. Each party is responsible for payment of the taxes on their share or 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.
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