Posted by Nydia Streets of Streets Law in Florida Divorce
Dividing retirement accounts in a Florida divorce case can present complications when the language of a marital settlement agreement is open to different interpretations. Division of a military retirement account was an issue in Rushing v. Rushing, 6D2024-1357 (Fla. 6th DCA September 19, 2025).
The parties previously entered a marital settlement agreement to resolve their divorce after a 12-year marriage. The former husband was a member of the Air Force, but at the time of entering the agreement, he had not yet retired. The parties’ marital settlement agreement contained the following clause concerning division of his retirement account:
Effective on the first day of the first month following his retirement from active duty with the United States Air Force and on the first day of each month thereafter, the Husband shall pay, or cause to be paid, to the Wife, as a property right, from the Husband’s United States Air Force retirement pay, an amount of his disposable retirement pay as defined in the Uniform Services Former Spouses Protection Act.
[. . .]
The amount shall be calculated pursuant to the parties having been married and living together as Husband and Wife for 143 months while the Husband was on active duty. Thus DFAS[1] shall calculate the percentage using the following formula: (143/AD) x 0.5 where ‘AD’ is defined as the actual number of months of creditable active duty time accrued by the Husband as of the date of his retirement.
[. . .]
The Wife’s percentage share of the Husband’s disposable retirement pay shall be calculated at the salary and rank attributable to the Husband’s rank of E-7 at 18 years, which is the rank and years that the Husband had attained at the time of the filing of the petition for dissolution.
Approximately five years after the parties’ divorce, the former husband retired. The former wife sought to enforce the marital settlement agreement by submitting the order to the military for processing, but it was rejected three different times for lack of sufficient information. The former wife then filed a petition with the court to clarify her share of the retirement account. The parties agreed at trial that the agreement was unambiguous. An expert testified on the former husband’s behalf as to the correct calculation based on military regulations and the language in the parties’ agreement.
According to the appellate opinion, the expert “offered testimony that the Department of Defense had promulgated a regulation that instructed how to divide and distribute military pensions. The regulation defined ‘retired pay base,’ a term contemplated in the agreement’s reservation of jurisdiction provision, as ‘the average of the member’s highest 36 months of basic pay at retirement (high-3 amount)’ for members who entered military service after 1980. This was meant to disincentivize immediate retirement when a service member achieved a final promotion.” The trial court ultimately found that the language of the agreement was ambiguous and awarded the former wife nearly 25 percent of the former husband’s military pension which he acquired over a 24-year career, resulting in the former wife being awarded higher monthly pension payment because it was based on Former Husband’s most lucrative three years of service that occurred after the parties’ divorce. The former husband appealed.
The appellate court reversed, noting “The agreement is unambiguous. It does not just compel the Formula’s application. It also requires the trial court to calculate Former Wife’s share of Former Husband’s pension ‘based upon’ his rank, years of service, and retired pay base as if he had retired when the parties divorced. Former Wife’s interpretation of the agreement erases this critical language. But we must review the agreement as a whole and according to its plain language. [. . .] The agreement’s failure to include the term ‘High-3’ does not doom its only reasonable interpretation because the trial court needed this information to calculate Former Husband’s ‘retired pay base.’ This term has a definite legal meaning, which we presume the parties intended in the absence of any contrary intention in their agreement. [. . .] Nor did the agreement need to use the term ‘hypothetical’ expressly when its plain language contemplated an imaginary retirement. Finally, the expert’s undisputed testimony did not make an agreement containing terms related to military retirement ambiguous, and thus dependent on parol evidence; a trial court can receive extrinsic evidence to explain technical terminology in an unambiguous contract.”
The court concluded “On remand, the trial court shall vacate that portion of the supplemental final judgment, including its improper military retired pay division order. Its amended supplemental final judgment shall include a military retired pay division order containing: 1) the 24.83% contemplated by the Formula; 2) the hypothetical retirement date (April 11, 2013); 3) Former Husband’s rank when the parties divorced (E-7); 4) Former Husband’s years of service when the parties divorced (eighteen); and 5) Former Husband’s retired pay base ($3,822.51) when the parties divorced.”
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