Considerations for a Florida Military Divorce
This guide highlights some of the issues that you may need to address if you or your client is facing a military divorce case in Florida.
Subject Matter JurisdictionFor subject matter jurisdiction for a divorce case in Florida, at least one party has to be a resident for at least six months.
Many times, service members seek a divorce in Florida when they are stationed out of state. If a servicemember or spouse maintains Florida as his or her legal residence, he or she may petition for a dissolution of marriage in Florida. The best proof is whether the servicemember has maintained a Florida driver's license and voter registration.
All servicemembers stationed in Florida automatically meet the residence requirement regardless of whether they have been in the state for at least six months.
The challenge here when the other party is not a Florida resident. When this is the case, the Florida Court is still authorized to grant the divorce, but it has no jurisdiction over property division, child custody, or support matters. In other words, the petitioning party is simply granted a "divisible divorce."
Child Custody JurisdictionMany military servicemembers maintain Florida as their home state or state of residency because Florida has no state income tax. These Florida legal residents often file for divorce in Florida, because Florida does not have a lengthy waiting period or mandatory separation period like several other states.
One major challenge occurs when there are children involved. Child custody jurisdiction is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (the "UCCJEA"). Under the UCCJEA, the default state with subject matter jurisdiction for initial proceedings is the Child's "home state." This is defined as the state where the Child has lived for the last six months, without regard to concepts such as "legal residency" or the state where parent "intends to return" or "calls home."
As a result, military servicemembers will sometimes attempt to petition for or agree to a divorce in Florida, but the court will not have subject matter jurisdiction over the Children under the UCCJEA. If the court enters a custody determination without jurisdiction, it is unenforceable and may be set aside by either party or the court at any time.
Dividing Military Retired PayUnder Federal law, the state of Florida has limited jurisdiction to divide military servicemembers' retired pay in connection with divorce proceedings.
For a Florida court to properly divide a servicemember's disposable retired pay, one of the Parties must be a bona fide resident of the State. Moreover, the court must ensure that the servicemember's rights were observed under the Servicemember's Civil Relief Act. The servicemember must also be properly served and his or her right to participate in the proceedings must be preserved. There are additional protections if the servicemember is on active duty during the proceedings.
Retired pay is usually awarded as a percentage of the servicemember's disposable retired pay. To the extent retired pay is awarded as a percentage (or coverture fraction) and the former spouse is paid by the Defense Finance and Accounting Service, the government automatically provides the former spouse with a pro rata share of any cost of living adjustments to the retired pay. If, however, the share of the retirement is expressed as a dollar amount, DFAS will not provide any cost of living adjustment.
Many former spouses do not know whether they are entitled to a share of the retirement pay. Some assume that they are not entitled to any share because they were not married for 10 years during the servicemember's active duty service. To the contrary, a former spouse is typically entitled to a share of the retired pay, even if the marriage was less than 10 years. The catch, unfortunately, is that DFAS will not make payments to a former spouse unless there were 10 years of marriage overlapping with 10 years of active duty service. This is known as the 10/10 Rule.
Survivor Benefit PlanThe Survivor Benefit Plan (or, "SBP) is an annuity that provides monthly benefits to certain spouses and former spouses who are predeceased by military retirees who are receiving military retired pay. The SBP annuity pays up to 55% of the retiree's military retired pay.
To be eligible for SBP, a servicemember retiree must elect to pay into the Survivor Benefit Plan. Subject to certain limited exceptions, this election must be made prior to the servicemember's retirement. If the servicemember fails to make the election before he or she retires, there is very little (if anything) that a former spouse can do if there is a post-retirement divorce.
If the divorce occurs prior to retirement, and the former spouse wants to be protected under the Survivor Benefit Plan, the former spouse must ensure that the final judgment of dissolution of marriage provides for SBP coverage in connection with awarding military retired pay to the former spouse. If the SBP coverage is provided for in the final judgment, the former spouse can file Form DD2656-10 with DFAS to make a "Deemed Election" for the servicemember in accordance with the Final Judgment.
In some cases, the Final Judgment makes no mention of the Survivor Benefit Plan and only divides the servicemember's disposable retired pay, with no provision for other benefits. Under Florida law, there is a strong argument that a post-judgment retirement division order, such as a QDRO, COAP, or order dividing military retired pay, cannot grant any relief greater than that provided by the Final Judgment. But, while many lawyers fail to include retirement related benefits, such as SBP, in the final judgment, many lawyers also fail to object when such benefits are included in the order dividing military retired pay. Make sure that you consult an attorney familiar with the law.
Post 9-11 GI BillThe Post-9/11 GI Bill is an education benefit program for individuals who served on active duty after September 10, 2001. This is an important asset that is becoming a frequent topic of discussion in military divorces.
The Post-9/11 GI Bill provides financial assistance to obtain a degree at a public or private university, to attend a trade or flight school, training, apprenticeships and tutorial assistance, for licensing fees, and to pay for certification tests.
Generally, a service member may receive up to 36 months of benefits. Benefits include payment for tuition, a monthly housing allowance, book stipend, and a one-time rural benefit payment.
The monthly housing allowance is equivalent to the Basic Allowance for Housing (BAH) for an E-5 with dependents, based on the ZIP code of the school where the student is physically enrolled. The housing allowance is not available if the service member continues to receive the Basic Allowance for Housing.
The reason that this benefit becomes significant in a divorce is that, if the service member meets the service requirements, this benefit may be transferred to a service member's spouse or child. Notably, if the Post 9/11 GI Bill is transferred to a child, the child could receive the housing allowance and book stipend, even if the parent service member is still on active duty and receiving the Basic Allowance for Housing.
Unlike leave and retirement pay, Post 9/11 GI Bill benefits are not treated as marital property subject to division in a Florida divorce. In other words, a military spouse cannot ask the court to award a service member's Post 9/11 GI Bill benefits as an asset in a divorce or as part of equitable distribution. This is because under the doctrine of "federal preemption," state courts do not have jurisdiction to divide federal benefits.
However, a skillful military divorce attorney will advise a client on how to use the Post 9/11 GI Bill benefits to settle a divorce, including the spouse's alimony claim. Often, a dependent spouse is seeking rehabilitative alimony. As part of a marital settlement agreement, the service member may agree to transfer all or part of the service member's educational benefits under the Post 9/11 GI Bill in exchange for a waiver of alimony.
If the service member seeks to transfer the benefits, the service member typically must agree to serve four additional years of active duty service. The transfer must also be made prior to the entry of a final judgment because the transfer may only be made to an existing spouse. A subsequent divorce, however, does not affect a transfer that has already occurred.
Both sides should be aware that, as a matter of federal law, the service member may revoke the transfer at any time while still serving on active duty or as a member of the Selected Reserve. Thus, the Final Judgment or Divorce Decree should prohibit the service member from revoking the transfer and provide for payment of alimony or another remedy should the service member do so.
If you have questions about a military divorce, you should consult a military divorce attorney or family law attorney experienced in military divorce.