Military Divorce in Miami

Arturo R. Alfonso P.A. represents spouses in Miami-Dade divorces where one or both of them serve in the armed forces, are in the reserves, or are military retirees, in English and Spanish. This page explains how we handle a military divorce, stage by stage, and the federal rules that sit on top of Florida divorce law.

A military divorce is still a Florida divorce: the same petition, financial disclosure, and parenting plan apply. What changes is a layer of federal law on service, deadlines, retired pay, and survivor benefits. How Florida divides retirement plans in general, including the 401(k) and the Florida Retirement System, is covered in our guide How is a 401(k) or pension divided in a Florida divorce? This page does not repeat that. It follows a military case the way we work it.

Step 1: Where the Case Can Be Filed

To file for divorce in Florida, one spouse must have lived in Florida for 6 months before the petition is filed (Section 61.021, Florida Statutes). Military families move often, so the first question is not only whether a Florida court can grant the divorce, but whether it can divide military retired pay. Under 10 U.S.C. section 1408(c)(4), a state court may divide a member’s retired pay only if it has jurisdiction over the member because of the member’s residence (other than because of a military assignment in that state), the member’s domicile, or the member’s consent. A member stationed in South Florida but domiciled in another state may not meet that test here without consent. We look at domicile, orders, and consent at the first meeting. Miami-Dade divorces are heard in the Family Division of the Eleventh Judicial Circuit, at the Lawson E. Thomas Courthouse Center, 175 NW 1st Avenue.

Step 2: Service, Deployment, and the Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act shapes the calendar. Before a court enters a default judgment, the party asking for it must file an affidavit stating whether the other party is in military service (50 U.S.C. section 3931). Under 50 U.S.C. section 3932, a servicemember who has notice of the case, and who is in military service or within 90 days after leaving it, may apply at any stage before final judgment for a stay of at least 90 days, including in a child custody proceeding. The application must include a letter explaining how current military duty materially affects the ability to appear and when the servicemember will be available, and a letter from the commanding officer stating that duty prevents appearance and that leave is not authorized. Whether you are the servicemember or the spouse at home, we build the schedule around these rules from the start.

Step 3: Dividing Military Retired Pay

Under Section 61.076(1), retirement benefits accrued during the marriage are marital assets, vested or not. Federal law sets the limits. Direct payment to a former spouse from the military pay center under the division of retired pay as property requires a marriage of at least 10 years overlapping at least 10 years of creditable service (10 U.S.C. section 1408(d)(2)), and all such court orders together cannot exceed 50 percent of disposable retired pay (section 1408(e)(1)). When the divorce becomes final before the member retires, and after December 23, 2016, the amount divided is computed from the member’s pay base and years of service as of the date of the decree, increased by later cost-of-living adjustments (section 1408(a)(4)(B)). That is why the decree date and the member’s service record matter so much.

Florida adds its own drafting rules. When the 10-year overlap is met, Section 61.076(2) requires the final judgment to include information sufficient to identify the member, a certification that the Servicemembers Civil Relief Act was observed if the decree was issued while the member was on active duty and not represented in court, and the amount of retired pay to be distributed, stated in dollars or as a percentage of disposable retired pay. Section 61.076(3) bars payments more often than monthly. We draft the judgment with those requirements in mind, because the pay center reviews the order, not the settlement talks behind it.

Step 4: Survivor Benefits and the One-Year Deadline

Retired pay stops when the retiree dies. If the judgment requires the member to elect Survivor Benefit Plan coverage for the former spouse, the former spouse should not rely on the member to make that election. Under 10 U.S.C. section 1450(f)(3), the former spouse may send a written request, with a copy of the court order, asking that the election be deemed made, but the request must be received within one year of the date of the court order. We put that date on the calendar the day the judgment is entered.

Step 5: Parenting Plans for a Family That Moves

A parenting plan for a military family should say how time-sharing works during a deployment or a permanent change of station, how the children stay in touch with the deployed parent, and who handles school and medical decisions in the meantime. Our guides to Florida parenting plans and how far a parent can move with a child explain the general rules.

What to Send Us Before the Consultation

• Current orders, and the dates of any expected deployment or move.
• Recent Leave and Earnings Statements for the servicemember.
• Service records showing the date service began, and for reservists, a retirement points statement.
• Your marriage certificate and the date of separation, if any.
• Any court papers already served, with their envelopes.

Families near Homestead Air Reserve Base can also read our Homestead page.

Related Pages

• Family Law Services in Miami
• How is a 401(k) or pension divided in a Florida divorce?
• Divorce representation in Miami
• What is mandatory disclosure in a Florida divorce?
• How long does a divorce take in Florida?
• Homestead