Rushing v. Rushing: Major Florida Decision on Dividing Military Retired Pay
A military pension provision may remain quiet for years. Then the servicemember retires, DFAS rejects the divorce paperwork, and a few lines written years ago become the center of expensive litigation.
That is what happened in Rushing v. Rushing, 433 So. 3d 887 (Fla. 6th DCA 2025). The case involved an Air Force servicemember who continued serving for six years after his divorce. When the former spouses later disagreed about the retirement award, the dispute came down to a fundamental question: Was the former wife entitled to a percentage of the servicemember’s entire pension at retirement, including value created by his post-divorce service, or was her award limited to a hypothetical retirement benefit based on his rank, service, and retired pay base when the divorce was filed?
The Sixth District Court of Appeal held that the marital settlement agreement limited the award to the latter. The court reversed an order giving the former wife 24.83% of the servicemember’s entire pension and directed the trial court to enter a military retired pay division order using the agreed percentage together with a hypothetical retirement date, the servicemember’s E-7 rank, eighteen years of service, and a $3,822.51 retired pay base.
For servicemembers, spouses, and former spouses, the importance of Rushing extends beyond one pension calculation. It illustrates why percentages alone can be misleading, why post-divorce promotions and service must be treated carefully, why technical military terms carry legal meaning, and why a court order must both reflect the parties’ agreement and contain the information DFAS needs.
What Happened in Rushing v. Rushing?
Jimmie Rushing joined the United States Air Force in 1994. He and Sylvia Rushing married in 2001. When the divorce petition was filed in 2013, the husband was a Master Sergeant, pay grade E-7, with eighteen years of service. He did not intend to retire at that time.
Their marital settlement agreement provided that Former Wife would receive an interest in his disposable military retired pay when he eventually retired. The agreement used a formula based on 143 months of marriage overlapping active-duty service:
(143 ÷ the member’s actual months of creditable active-duty service at retirement) × 0.5
When Former Husband retired in 2018 after twenty-four years, the formula produced an undisputed percentage of 24.83%.
The percentage was not the whole agreement, however. Another provision required Former Wife’s share to be calculated using the salary and rank attributable to an E-7 with eighteen years of service, the Former Husband’s rank and service at the time of the divorce filing. The agreement also reserved jurisdiction for a court to determine the correct percentage based on the specified rank, years of service, and retired pay base.
Those additional terms mattered. By serving six more years, Former Husband increased both his service multiplier and his High-3 retired pay base. His actual pension at retirement was therefore more valuable than the hypothetical pension associated with his status when the marriage ended.
DFAS rejected Former Wife’s submissions three times because the documents lacked information needed to calculate her award. The Parties returned to court. The trial court erroneously awarded her 24.83% of the entire pension earned over Former Husband’s twenty-four-year career.
The Sixth District reversed.
Reading the marital settlement agreement as a whole, the appellate court concluded that it unambiguously required a hypothetical retirement calculation tied to Former Husband’s status at the time of the divorce. The court was not permitted to interpret the agreement in a way that erased its references to rank, years of service, and retired pay base.
On remand, the military retired pay division order was required to contain five specific components:
The 24.83% share produced by the agreed formula;
A hypothetical retirement date of April 11, 2013;
The former husband’s E-7 rank at divorce;
His eighteen years of service at divorce; and
His $3,822.51 retired pay base at divorce.
The Florida Supreme Court later declined discretionary review. The Sixth District’s decision therefore remained undisturbed.
Why the Decision Matters to Servicemembers
The practical message for servicemembers is straightforward: an award tied to the marriage does not entitle a former spouse to appreciation and increases generated after divorce.
A servicemember may continue serving for years after the marriage ends. During that period, the member may earn promotions, longevity increases, additional retirement credit, or a higher High-3 average through work performed entirely after the marital cutoff. If an agreement freezes the benefit at divorce, applying the former spouse’s percentage to the member’s unrestricted retirement benefit can transfer part of that post-divorce value.
That does not mean servicemembers automatically keep every increase that appears after divorce. The controlling judgment, marital settlement agreement, applicable Florida law, federal law, retirement system, and divorce date all matter. Cost-of-living adjustments may also be treated differently from increases attributable to later promotions or service.
Rushing nevertheless gives servicemembers a powerful Florida authority when an agreement expressly ties the former spouse’s award to the member’s rank, service, or retired pay base at a marital cutoff date. Courts must enforce the whole agreement—not isolate a percentage and disregard the provisions limiting the benefit to which that percentage applies.
The decision is equally important to military spouses and former spouses. A former spouse cannot safely assume that a percentage provided in a divorce judgment will be applied to the member’s full retirement check. The base against which the percentage operates may be just as important as the percentage itself.
How Large Was the Financial Impact?
The opinion does not state the final monthly dollar difference after remand, which will be calculated by the Defense Finance and Accounting Service (“DFAS”).
The structural impact was substantial. The trial court’s order applied 24.83% to a twenty-four-year retirement calculated from the member’s most lucrative three years of service. The agreement, as interpreted by the Sixth District, applied that same percentage to a hypothetical eighteen-year E-7 retirement with a retired pay base of $3,822.51 subject to the legally appropriate treatment of later cost-of-living adjustments.
Former Husband’s six post-divorce years increased his service multiplier from the 45% associated with eighteen years under the retirement formula discussed in the opinion to 60% at twenty-four years. His later earnings also increased the High-3 base used for his actual retirement.
A monthly difference can continue for the joint lives of the retiree and former spouse. Even a few hundred dollars per month can become tens of thousands of dollars over time. The financial consequences may also affect taxes, settlement offsets, estate planning, support negotiations, and the practical value of Survivor Benefit Plan coverage.
This is why a military retirement dispute should be measured over time, not by looking at one monthly payment.
Is Rushing Florida’s Most Detailed Military Retired Pay Decision?
Rushing is one of Florida’s most detailed and granular published appellate decisions on the implementation of a hypothetical military retirement award.
Florida appellate courts had addressed retirement valuation and post-dissolution earnings before Rushing. In Boyett v. Boyett, 703 So. 2d 451 (Fla. 1997), the Florida Supreme Court explained that retirement benefits should be valued without including contributions made after the original final judgment. In Fritz v. Fritz, 161 So. 3d 425 (Fla. 2d DCA 2014), the Second District rejected a military pension order that improperly allowed a former spouse to benefit from post-dissolution work and earnings and that departed from the parties’ settlement.
What makes Rushing especially useful is its operational detail. The opinion does not stop with a general instruction to recalculate the pension. It identifies the percentage, hypothetical retirement date, pay grade, years of service, and retired pay base that the corrected order must contain. It also explains why expert testimony may be used to clarify technical military terminology without changing an otherwise unambiguous agreement.
That combination makes Rushing valuable to Florida judges, military divorce attorneys, financial experts, servicemembers, and former spouses confronting an old agreement that DFAS cannot process.
Florida Equitable Distribution and Post-Divorce Military Service
Under sections 61.075 and 61.076, Florida Statutes, vested and nonvested retirement benefits accrued during a marriage may be marital assets subject to equitable distribution. Florida begins with the premise of equal distribution of marital assets, but the court may order an unequal distribution when statutory factors justify it.
The critical word is marital. A servicemember’s pension may contain:
A nonmarital portion earned before the marriage;
A marital portion earned during the marriage; and
A post-cutoff portion produced by later service or compensation.
Florida’s marital-property cutoff is generally the earliest of the date established by a valid separation agreement, another date expressly established by agreement, or the date the dissolution petition was filed. The valuation date can present a separate question.
In a military retirement case, simply dividing months of marital service by total service at retirement may not adequately protect the marital cutoff if the result is applied to a pay base enhanced by later promotions and earnings. Rushing reinforces that the numerator, denominator, percentage, pay grade, service credit, retired pay base, and hypothetical date must be read as parts of one economic arrangement.
The decision also reinforces ordinary Florida contract law. A marital settlement agreement incorporated into a final judgment is interpreted as a contract. When its language is clear, the court determines intent from the document’s four corners and must give reasonable effect to all provisions. A court cannot manufacture ambiguity merely because the parties later advocate different outcomes.
The Federal Framework: USFSPA, DFAS, and the Frozen Benefit Rule
Florida law identifies and distributes marital property, but federal law defines what military retired pay a state court may divide and how the federal government may pay an award.
The Uniformed Services Former Spouses’ Protection Act, principally codified at 10 U.S.C. § 1408, allows qualifying state courts to treat “disposable retired pay” as the member’s property or as property of the member and spouse. It does not automatically award a former spouse half of a pension.
Disposable retired pay is a defined federal amount. It is not necessarily the same as gross retired pay. Authorized deductions can include certain disability-related exclusions, Survivor Benefit Plan premiums in specified circumstances, forfeitures, and amounts owed to the United States. Our detailed discussion of the Uniformed Services Former Spouses’ Protection Act explains these federal limitations.
Federal law also imposes special jurisdictional requirements. Under 10 U.S.C. § 1408(c)(4), a state court generally may divide retired pay as property only if it has jurisdiction over the member based on residence other than because of military assignment, domicile, or consent. A servicemember’s assignment to MacDill Air Force Base does not by itself resolve that question. Anyone facing an interstate or deployment-related case should investigate Florida military divorce jurisdiction before litigating the pension.
For qualifying divorces entered after December 23, 2016, federal law generally imposes what practitioners call the frozen benefit rule. When the member has not retired, the divisible benefit ordinarily uses the member’s pay grade or actual High-3 retired pay base and creditable service as of the applicable divorce date, with authorized cost-of-living adjustments afterward.
Rushing involved an agreement executed before that statutory change, so the court enforced the agreement rather than applying the later rule retroactively. Even so, the decision’s practical logic closely resembles the federal frozen-benefit structure: identify the member’s career position at the marital cutoff and do not silently transfer retirement value created through later promotions and service.
The governing Department of Defense procedures appear in DoD 7000.14-R, Financial Management Regulation, Volume 7B, Chapter 29. Those rules affect the wording and processing of military retired pay division orders. A private-sector QDRO form is not an adequate substitute.
Why DFAS Rejection Is More Than an Administrative Inconvenience
In Rushing, DFAS rejected the former wife’s submissions three times because the documents lacked critical information. That history is a warning for both sides.
DFAS processes qualifying orders; it does not rewrite a Florida judgment, determine what the parties meant, or resolve disputed facts. If an order omits a required High-3 amount, hypothetical retirement date, service figure, percentage, or jurisdictional finding, DFAS may reject it. The parties may then have to return to state court years after the divorce.
A former spouse should not wait until retirement to learn whether an order is processable. When appropriate, submitting the order for review before retirement may expose defects while the record is accessible and the lawyers still understand the case.
The familiar 10/10 rule must also be understood correctly. Ten years of marriage overlapping ten years of creditable military service generally affect eligibility for direct DFAS property payments under 10 U.S.C. § 1408(d)(2). The rule does not decide whether the pension is marital property. A shorter marriage may still produce a divisible Florida property interest, although payment and enforcement may have to occur directly between the former spouses.
For a comprehensive explanation of percentages, hypothetical awards, disability exclusions, Reserve points, DFAS applications, and enforcement, review our guide to dividing military retired pay in a Florida divorce.
Litigation Strategy After Rushing
A military pension case is often won or lost through documents and numbers before anyone testifies.
Counsel should begin with the controlling agreement and final judgment. Every reference to rank, salary, High-3, retired pay base, service, points, retirement date, marital cutoff, cost-of-living adjustments, disability, and direct payment should be mapped to the intended calculation. No provision should be treated as surplus language.
Relevant evidence may include:
The marital settlement agreement, final judgment, and later orders;
Leave and Earnings Statements and military pay records;
A DD Form 214 and retirement orders;
The member’s Date of Initial Entry into Military Service;
Retiree Account Statements;
High-3 or High-36 documentation;
Service-history and promotion records;
Reserve or National Guard retirement-point statements;
DFAS rejection letters and correspondence;
DD Form 2293 submissions;
VA disability, CRDP, CRSC, or Chapter 61 records;
Survivor Benefit Plan election documents; and
Expert calculations based on the correct retirement system.
The expert testimony in Rushing was especially important. David Veenstra, an Air Force veteran and lawyer with substantial military retirement experience explained the meaning of “retired pay base,” the High-3 system, the hypothetical retirement calculation, and the information DFAS required.
The appellate court drew an important evidentiary distinction. Extrinsic evidence generally cannot alter or contradict an unambiguous agreement. Technical evidence may nevertheless explain specialized terminology used in that agreement. A military retirement expert should therefore connect the military calculation to the actual language of the judgment—not offer a new bargain for the parties.
Claims, Defenses, and Remedies
The remedy depends on the problem.
If the judgment reserved jurisdiction to calculate or implement the award, a party may seek an implementing or clarifying military retired pay division order. If the opposing party requests a benefit materially different from the original agreement, defenses may include the agreement’s plain language, res judicata, federal preemption, lack of USFSPA jurisdiction, the marital cutoff, and limits on a court’s authority to modify a final property distribution.
A clarification may explain or implement an existing right. It generally cannot be used as a disguised modification that creates a materially different property award after the judgment becomes final. Rushing demonstrates that a court cannot use a later enforcement proceeding to erase agreed limitations and transfer post-divorce retirement value.
For a servicemember, failing to pay an amount that is clearly due may create arrears, interest, attorney’s-fee exposure, or other enforcement remedies. For a former spouse, waiting to act may complicate proof and collection. DFAS generally does not solve ordinary property-payment arrears merely because it begins making current direct payments.
The parties should also determine whether a notice of appeal must be filed. Florida appellate deadlines are short and usually jurisdictional. A party who believes a final or supplemental final judgment misinterprets a military pension agreement should obtain appellate advice immediately rather than waiting for DFAS processing or enforcement proceedings to conclude.
Disability Pay, SBP, Support, and Custody Remain Separate Issues
Rushing concerns military retired pay division. It does not make VA disability compensation divisible property.
Under 10 U.S.C. § 1408, Mansell v. Mansell, 490 U.S. 581 (1989), and Howell v. Howell, 581 U.S. 214 (2017), federal law restricts state courts from dividing qualifying disability-related amounts excluded from disposable retired pay or ordering reimbursement that accomplishes the same prohibited result. Florida courts must observe those limits. Learn more about military disability pay in Florida divorce.
Disability income may still be relevant to child support, alimony, need, ability to pay, or attorney’s fees, depending on the governing law and facts. Property division and support are different legal analyses.
The Survivor Benefit Plan is also separate. A former spouse’s retired-pay share ordinarily ends when the servicemember or former spouse dies. Former-spouse SBP coverage must be addressed independently, and a deemed-election request generally must be received within one year of the order requiring coverage. Our guide to the Survivor Benefit Plan in military divorce explains the election and deadline issues.
Likewise, Rushing does not change Florida law governing custody, deployment, child support, or alimony. A retirement dispute may affect the family’s financial circumstances, but parenting decisions remain controlled by the child’s best interests and the applicable Florida statutes. Military families should not allow a pension dispute to obscure separate deadlines involving deployment orders, relocation, support modification, or enforcement.
What Rushing Changes in Florida Military Divorce Practice
Rushing does not create a universal pension formula. Its holding rests on the language of a particular marital settlement agreement. Its broader influence comes from the principles it applies and the precision it demands.
After Rushing, Florida military divorce lawyers should expect closer scrutiny of:
Whether a percentage applies to actual retired pay or a hypothetical frozen benefit;
Whether the order captures post-divorce promotions and service;
The legal meaning of “retired pay base” and similar military terms;
Whether all provisions of a marital settlement agreement have been given effect;
Whether expert testimony explains technical terms or improperly attempts to change the agreement;
Whether the proposed order contains the information DFAS requires; and
Whether a request labeled “clarification” would actually modify a final property award.
The most important drafting lesson is that “the former spouse receives X percent of military retirement” may be dangerously incomplete. A workable agreement should identify what the percentage multiplies, the relevant date, retirement system, pay grade, service credit or Reserve points, retired pay base, COLAs, payment mechanism, and procedures if DFAS rejects the order.
For related practical guidance, see our articles on federal law and division of military pensions and how military retirement pay is calculated.
Frequently Asked Questions About Rushing v. Rushing
What did the court decide in Rushing v. Rushing?
The Sixth District held that the parties’ unambiguous settlement limited the former wife’s retirement award to a hypothetical benefit based on the servicemember’s E-7 rank, eighteen years of service, and retired pay base when the divorce was filed. It reversed an order applying her 24.83% share to his entire twenty-four-year pension.
Does Rushing mean a former spouse never shares in post-divorce pension increases?
No. The result depends on the judgment, agreement, divorce date, applicable federal law, retirement system, and nature of the increase. Rushing enforced an agreement that tied the award to specified career variables at divorce. It should not be treated as a substitute for analyzing the controlling language in another case.
Does a former spouse automatically receive half of military retirement after ten years?
No. The 10/10 rule generally determines whether DFAS can make direct property payments. It does not automatically award half the pension and does not determine whether the marital portion is divisible.
What is a hypothetical military retirement award?
It is an award calculated as though the member had retired on a specified earlier date using identified service, rank or pay grade, and retired pay base. It can prevent later promotions and service from improperly increasing the former spouse’s property award while preserving the agreed marital interest and applicable adjustments.
What is High-3 retired pay?
High-3 generally refers to the average of the member’s highest thirty-six months of basic pay used to calculate military retirement. It does not include BAH, BAS, or total military compensation. In a frozen or hypothetical award, the correct High-3 information may need to be stated as an actual dollar amount.
Can DFAS interpret an unclear Florida divorce judgment?
DFAS can process a qualifying order, but it does not decide contested Florida contract issues or rewrite missing terms. If an order lacks required information, DFAS may reject it and the parties may need a clarifying or implementing order from the Florida court.
Can a Florida court change an old military pension agreement?
A court may interpret, clarify, or enforce an existing agreement when legally permitted. It generally cannot use clarification to create a materially different property award after the distribution becomes final. Whether relief is available depends on the original language, reservation of jurisdiction, procedural history, and relief requested.
Does Rushing apply to Reserve and National Guard retirement?
Its contract principles may be relevant, but Reserve and National Guard retirement is ordinarily calculated using retirement points rather than only months of active service. A Reserve-component order may require marital points, total points, years of service for basic-pay purposes, a hypothetical retirement date, and the appropriate retired pay base.
Does Rushing control VA disability pay or CRSC?
No. The decision concerns military retired pay under the parties’ agreement. VA disability compensation, Chapter 61 disability retirement, Concurrent Retirement and Disability Pay, and Combat-Related Special Compensation require separate federal analysis.
What should I do if DFAS rejected my order?
Preserve every rejection letter and submission. Compare the rejection reason with the final judgment, settlement agreement, DD Form 2293, service records, retirement records, and applicable DFAS rules. A Florida court may need to enter a clarifying or implementing order, but that order must remain faithful to the original property award.
Can unpaid military retired pay be enforced in Florida?
Potentially. Depending on the judgment and facts, remedies may include enforcement proceedings, a money judgment, interest, contempt where legally available, income-related remedies, and attorney’s fees. DFAS direct payment ordinarily should not be assumed to collect all preexisting property arrears.
How quickly must a military retirement order be appealed?
Florida appellate deadlines can be short and jurisdictional, often running from rendition of the appealable order. Anyone considering an appeal should seek advice immediately. A request for rehearing does not cure every deadline problem, and waiting for DFAS action may be too late.
Experienced Florida Counsel for Military Retired Pay Disputes
Rushing v. Rushing shows how military retirement litigation can turn on a few technical words, decades of financial consequences, and the interaction of Florida contract law with federal military rules.
Richard J. Mockler represented the servicemember on appeal in Rushing and obtained the reversal and remand. He later represented the servicemember when discretionary review was sought in the Florida Supreme Court. His background as a former United States Marine, trial lawyer, family law attorney, and appellate advocate informs the firm’s approach to military retirement disputes.
Angela L. Leiner represents servicemembers, spouses, retirees, veterans, reservists, and National Guard families in matters involving retired pay, DFAS, disability, support, custody, and enforcement.
Mockler Leiner Law, P.A. handles serious Florida military divorce and family law matters involving pension division, marital settlement agreements, retired pay orders, disability benefits, SBP, TSP, alimony, child support, deployment, custody, jurisdiction, modification, enforcement, trial, and appeal.
If your retirement order has been rejected, your former spouse is seeking a share of post-divorce military earnings, your agreement contains unclear pension language, or you need to protect a lawful marital interest before retirement, contact Mockler Leiner Law, P.A. to discuss your Florida military divorce case.
