Posted by Nydia Streets of Streets Law in Florida Military Divorce
What is the difference between military disability pay and military retirement pay as it relates to a Florida divorce? One can be treated as property for equitable distribution purposes and the other cannot. This was an issue in the case Martin v. Martin, 1D21-2647 (Fla. 1st DCA August 17, 2022).
When the parties divorced, they entered a marital settlement agreement which stated in part “The wife shall receive as part of Equitable Distribution a portion of the Husband’s Military Retirement in the event the Husband retires from the military. The wife shall receive $255.82 per month which is .39 (93 months/240 months) of her portion ($655.95) of his retirement earned during the marriage, beginning upon the first month that the Husband is entitled to receive his military retirement pay.”
Five years later, the former wife filed a motion for contempt and enforcement, alleging the former husband had retired and therefore she was entitled to the payments mentioned in the settlement agreement. The former husband disputed this, arguing he had not retired, and instead was medically retired, having not reached the twenty years of service required to qualify for military retirement benefits. The trial court rejected the former husband’s argument and ordered him to pay over $200 monthly to the former wife as and for her share of his retirement benefits. The former husband appealed.
The appellate court noted “A military pension is an asset subject to equitable distribution. §§ 61.075(6)(a)1.e. & 61.076, Fla. Stat. A service member who is disabled as a result of military service is eligible to ‘retire’ before twenty years of service under certain circumstances. 10 U.S.C.A. § 1201. Military disability payments are exempted from the definition of ‘disposable retired pay’ subject to equitable distribution. 10 U.S.C.A. § 1408.” The court reversed the trial court’s ruling, holding “The former husband argues he never reached retirement eligibility and any payments he receives from the military are disability payments not subject to distribution. We agree. In Howell v. Howell, 137 S.Ct. 1400, 1404 (2017), the United States Supreme Court reversed a lower court order that ordered the former husband to indemnify the former wife after he waived a share of his retirement benefits to receive non-taxable disability benefits. The Court held federal law preempted States from treating waived military retirement in the form of disability benefits as divisible community property. Id. at 1405. The Court stated an attempt to reimburse or indemnify the former wife to restore the amount previously awarded as community property was also preempted by federal law. Id. at 1406. Here, the former husband did not reach twenty years of service to qualify for military retirement benefits. His non-taxable disability benefits are not divisible property, and under Howell, the trial court could not order him to indemnify the former wife from other assets.”
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