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Division of Military Retirement

There are many unique factors to a military divorce, one being the division of a military member’s retirement. Although divorces are typically governed by Florida state law, Federal law may preempt certain statutes. Where this has recently occurred, is in the case of division of military retirement. Ensure you are represented by a knowledgeable attorney who has experience in military retirement procedures in order to protect your rights during your divorce.

In 2017, The National Defense Authorization Act provided for significant changes in the division of military pensions, removing the power from the state laws and requiring observance of this federal law. This law only affects active service members, national guard and reservists, who are going through divorces and not yet receiving retirement payments. The rule also provides that it cannot be contracted around through a marital settlement agreement and rather must be strictly adhered to. It is important to note, however, the State of Florida was already subjecting itself to these provisions in the federal act in the majority of cases, however, the act made it a national observance.

The National Defense Authorization Act provides that military retirement payments are to be divided as of the date of the divorce. Therefore, if the military member extends their years of service or rises in rank causing a larger retirement amount, the former spouse is not entitled to this increase after divorce proceedings. This prevents non military spouses from receiving increased distributions of a spouse’s retirement account that they did not contribute to after the marriage.

Therefore, to calculate a division of a military retirement account, the court will consider four factors: the present value of the account, the duration of the marriage, the duration of military service to date, and the overlap between the duration of the marriage and the duration of the military service. These duration periods are then formulated into a term of months, placed into a mathematical formula. First, the court will build a fraction with the numerator being the number of months the military member was married during their military service, the denominator being the total number of months the military member has been in the military service up to the date of divorce. This will then be multiplied by the present value of the account to provide the amount of retirement funds that accrued during the time of the marriage. This number will then be divided equally between the parties.

The main change this federal act made was limiting the cut off date of the denominator to being the service member’s overall military service up to the date of dissolution, and not the future actual retirement date of the military member. This is known as the Frozen Benefit Division because the non military spouse’s share is fixed or frozen and will not increase after the date of divorce. Even prior to the enactment of this law, Florida had a bright line rule that any retirement earned after the date of divorce was non marital property, not subject to equitable distribution. Mahoney v. Mahoney, 251 So.3d 977 (Fla. 1st DCA 2018). Further, in past cases the Florida courts held that they were unable to reserve jurisdiction to increase or decrease the amount of equitable distribution to a spouse after the date of divorce. Ingram v. Ingram, 133 So.3d 1205 (Fla. 2d DCA 2014). Making such future retirement benefits untouchable.

It is important to know these restrictive provisions to ensure you are receiving the proper amount you are entitled to under Federal and State law. Therefore, employ the aid of a knowledgeable and experienced attorney to aid you in this process.

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