Military Prenuptial Agreements for Service Members

A military pension can be one of the most valuable assets a service member will ever earn. For many career service members, military retired pay is more than a future monthly payment. It represents decades of deployments, training, transfers, family sacrifice, risk, discipline, and service.

That is why a prenuptial agreement can be especially important for military service members, veterans, reservists, National Guard members, and military spouses. A properly drafted agreement can define whether the military pension will be divided in a future divorce, whether a spouse will claim part of the service member’s military retired pay, whether the spouse will receive Survivor Benefit Plan coverage, and how related military benefits will be treated if the marriage ends.

Military retirement is not like a standard private pension. The division of military retired pay involves both Florida family law and federal law, including the Uniformed Services Former Spouses’ Protection Act. If a prenuptial agreement does not account for those rules, the agreement may fail to protect the service member in the way the parties intended.

At Mockler Leiner Law, P.A., our attorneys help service members and military spouses understand the financial issues that make military divorce different from civilian divorce. A prenuptial agreement can be one of the most effective ways to avoid uncertainty, reduce litigation, and protect a military pension before a dispute ever arises.

Why Military Service Members Should Consider a Prenuptial Agreement

A prenuptial agreement is not only for wealthy people. It is a planning document. For a military service member, it can be the difference between keeping a retirement benefit intact and spending years litigating how that benefit should be divided.

Military families face circumstances that many civilian families do not. A service member may enter the marriage with years of creditable service already completed. The member may later transfer duty stations, deploy overseas, move between active duty and reserve status, or become eligible for disability compensation. The member may also participate in the Blended Retirement System, contribute to the Thrift Savings Plan, or later face decisions involving VA disability, Combat-Related Special Compensation, Concurrent Retirement and Disability Pay, and the Survivor Benefit Plan.

A Florida divorce court can address many of these issues if the parties separate. But by that point, the service member may be dealing with litigation, support claims, jurisdictional issues, and the possibility that a former spouse will claim a share of the military pension.

A well-drafted military prenuptial agreement can address these issues in advance.

How a Prenup Can Protect a Military Pension

The most direct way a military prenuptial agreement can protect a pension is by clearly stating that the service member’s military retired pay will remain the separate property of the service member.

Without a prenuptial agreement, the portion of military retired pay earned during the marriage may be treated as a marital asset subject to equitable distribution in a Florida divorce. The exact division depends on the facts, the length of the marriage, the length of military service during the marriage, the applicable retirement system, and the court’s application of Florida law.

A prenuptial agreement can change that result.

For example, the agreement may provide that:

• The service member’s military retired pay, whether earned before or during the marriage, will remain the service member’s separate property.

• The non-military spouse waives any right to receive a share of disposable military retired pay.

• The spouse waives any right to a military pension division order.

• The spouse waives any claim to cost-of-living adjustments connected to military retired pay.

• The spouse waives any right to Survivor Benefit Plan coverage.

• The spouse waives any right to receive indemnification, reimbursement, or replacement payments if retired pay is later reduced because of disability-related elections.

• The spouse waives claims to the service member’s Thrift Savings Plan, or the agreement defines exactly what portion, if any, will be treated as marital.

• The spouse waives claims to continuation pay, lump-sum retirement options, or other benefits connected to the service member’s military career.

• The stronger and more specific the language, the better. A vague agreement may create unnecessary litigation. A military pension is too important to leave to generic language.

If the purpose of the agreement is to protect the military pension, the agreement should say so directly.

The Prenup Should Specifically Identify Military Retired Pay

Military retired pay should be identified by name. The agreement should not rely only on general terms like “retirement accounts,” “employment benefits,” or “pensions.”

A strong military prenuptial agreement should address:

• Military retired pay;

• Disposable military retired pay;

• Reserve or National Guard retired pay;

• High-3 retired pay;

• Blended Retirement System benefits;

• Thrift Savings Plan benefits;

• Military disability retired pay;

• VA disability compensation;

• Combat-Related Special Compensation;

• Concurrent Retirement and Disability Pay;

• Survivor Benefit Plan coverage;

• Cost-of-living adjustments;

• Continuation pay;

• Lump-sum retirement elections;

• Separation pay or severance pay, if applicable;

• Leave sell-back or accrued leave issues; and

Any other benefit arising from military service.

The agreement should also state whether the waiver applies only to benefits earned before the marriage, or whether it also applies to benefits earned during the marriage.

This is critical. Many service members assume that because they started their military career before the wedding, the pension is automatically protected. That is not always true. If a portion of the military pension is earned during the marriage, that portion may become a divorce issue unless a valid agreement says otherwise.

For more information about how military retired pay is normally divided in divorce, see our page on Division of Military Retired Pay.

A Prenup Can Avoid the “Marital Fraction” Fight

In many military divorce cases, the former spouse seeks a share of the military retirement based on the portion of service that overlapped with the marriage. This often leads to litigation over the numerator, denominator, dates of service, date of marriage, date of filing, date of divorce, reserve points, rank, promotions, and what pay base should be used.

A prenuptial agreement can avoid that fight.

The agreement can provide that the spouse receives no share of military retired pay at all. Alternatively, if the parties want a narrower agreement, it can provide a cap or formula that is more limited than what might otherwise be litigated in divorce.

For example, the agreement might provide that the spouse receives no share of premarital service credit. Or it might provide that the spouse receives no share of post-separation increases, promotions, disability-related payments, COLAs, or benefits earned after a certain date.

Some service members want complete protection. Others want a fair but limited formula. The right approach depends on the parties’ goals, the stage of the military career, the length of the relationship, and whether the parties are trying to protect premarital service, future service, or both.

The Uniformed Services Former Spouses’ Protection Act Does Not Automatically Give a Spouse the Pension

One common misconception is that a military spouse automatically receives part of the military pension after a certain number of years of marriage. That is not correct.

The Uniformed Services Former Spouses’ Protection Act allows state courts to treat disposable military retired pay as marital property in a divorce. It does not automatically award a former spouse a share of the pension.

The so-called “10/10 Rule” is also frequently misunderstood. The 10/10 Rule generally concerns whether DFAS can make direct payments to a former spouse when the parties were married for at least 10 years overlapping with at least 10 years of creditable military service. It does not mean that a spouse gets nothing if the marriage was shorter than 10 years. It also does not mean that a spouse automatically receives 50 percent if the marriage lasted 10 years.

A prenuptial agreement should be drafted with these rules in mind. If the non-military spouse waives any right to receive military retired pay, the divorce judgment should be consistent with that waiver. The goal is to prevent a future pension division order from being entered in the first place.

For more information, see our page on the Uniformed Services Former Spouses’ Protection Act.

Protecting Against SBP Claims

The Survivor Benefit Plan is another issue that should be addressed in a military prenuptial agreement.

Military retired pay generally ends when the service member dies. The Survivor Benefit Plan, commonly called SBP, is an annuity program that can provide continuing payments to an eligible beneficiary after the service member’s death. In a divorce, a former spouse may request SBP coverage to protect the former spouse’s interest in the military pension.

For the service member, SBP can be expensive and restrictive. SBP premiums reduce retired pay. A former spouse SBP election may also affect the service member’s ability to provide survivor protection for a later spouse or family member.

A prenuptial agreement can state whether the future spouse waives any right to be named as a former spouse SBP beneficiary. It can also provide that the service member is not required to elect SBP coverage for the spouse in the event of divorce.

If the parties want to provide some form of protection, the agreement can identify alternatives, such as life insurance, a limited term of coverage, or a negotiated tradeoff. But the agreement should not ignore SBP. In many military divorce cases, SBP becomes a major financial issue.

For more information, see our page on the Survivor Benefit Plan.

Disability Pay, VA Waivers, CRSC, and CRDP Should Be Addressed

Military disability issues can complicate pension protection.

In some cases, a military retiree may waive a portion of retired pay to receive VA disability compensation. That can reduce the disposable retired pay available for division. Other programs, such as Combat-Related Special Compensation and Concurrent Retirement and Disability Pay, can further complicate the analysis.

A military prenuptial agreement should address whether the non-military spouse will have any claim based on future disability elections or reductions in disposable retired pay. If the service member’s goal is maximum protection, the agreement should state that the spouse waives any right to indemnification, reimbursement, replacement payments, or alimony-like payments arising from a future reduction or recharacterization of retired pay.

This is a technical area. A poorly drafted agreement can create the very dispute the service member was trying to avoid. The agreement should be written with an understanding of military disability pay, retired pay waivers, and federal limitations.

For more information, see our page on the Impact of Disability Pay in Military Divorce.

Protecting the Thrift Savings Plan

Many service members participate in the Thrift Savings Plan. Under the Blended Retirement System, TSP benefits can become an even more important part of the service member’s overall retirement picture.

A prenuptial agreement should not focus only on monthly retired pay. It should also address the TSP.

The agreement can provide that:

• The service member’s TSP balance before marriage remains separate property;

• All future TSP contributions remain separate property;

• Only contributions made during the marriage are subject to division;

• Government matching contributions are treated in a particular way;

• Investment growth on separate TSP funds remains separate property;

• Loans, withdrawals, and rollovers will not convert separate funds into marital property; and

• The spouse waives any right to a Retirement Benefits Court Order dividing the TSP.

The agreement should also require the service member to preserve statements showing the premarital balance. Without account statements, a party may later have difficulty proving which portion of the TSP was separate.

A Prenup Can Protect More Than the Pension

Although this page focuses on military retired pay, a good military prenuptial agreement usually covers more than the pension.

The agreement may also address:

• Premarital real estate;

• Bank accounts;

• Investment accounts;

• Business interests;

• Professional practices;

• Debt;

• Student loans;

• Credit cards;

• Vehicles;

• Inheritance;

• Gifts;

• Life insurance;

• Alimony;

• Attorney’s fees;

• Tax filing issues;

• Deployment-related financial authority;

• Estate planning obligations; and

• What happens if the parties move to another state or country.

Military families relocate frequently. A service member may be stationed in Florida when the agreement is signed but later move to another state or overseas. The agreement should include thoughtful choice-of-law and forum language to reduce future disputes about which state’s law applies.

For military divorce cases, jurisdiction can matter. You can learn more on our page about Military Divorce Jurisdictional Issues.

A Prenup Cannot Waive Child Support

A prenuptial agreement can address property rights and, in many cases, spousal support issues. But it cannot eliminate a child’s right to support.

If the parties later have children, child support will be determined under the law that applies at the time of the support issue. The parties cannot use a prenuptial agreement to bargain away a future child’s right to financial support.

That said, the agreement can still provide clarity on property, alimony, debts, attorney’s fees, and military retirement issues. Those provisions may reduce conflict and make any future divorce more focused and less expensive.

For related financial issues, see our page on Calculating Military Income.

The Agreement Must Be Enforceable

A prenuptial agreement is only useful if it can be enforced.

Under Florida law, a premarital agreement should be in writing and signed by both parties. The agreement should be entered voluntarily. It should not be the product of fraud, duress, coercion, or overreaching. The parties should exchange fair and reasonable financial disclosure, or knowingly waive further disclosure in writing where appropriate.

When a military pension is involved, disclosure should be specific. The service member should disclose the existence of military retirement rights, the branch of service, current rank, years of service, retirement system, TSP information, and any other relevant benefit information available at the time.

The non-military spouse should have a fair opportunity to review the agreement. Whenever possible, each party should have independent legal counsel. The agreement should not be presented for the first time right before the wedding. A rushed agreement signed under pressure is more likely to be challenged later.

A service member who wants the agreement to hold up in court should treat the process seriously from the beginning.

Consider Signing Well Before the Wedding

Timing matters.

If a prenuptial agreement is signed days before the wedding, the spouse who later challenges it may argue that there was pressure, embarrassment, financial coercion, or no realistic opportunity to obtain counsel. Even if the agreement is ultimately enforced, that kind of challenge can create expensive litigation.

The better practice is to start early. A service member should speak with counsel as soon as marriage becomes a serious possibility, especially if the goal is to protect military retired pay. The parties should exchange disclosures, negotiate terms, and sign the agreement well before the wedding date.

In some cases, the parties may also sign a post-marriage ratification agreement after the wedding. This can help confirm that both parties continue to agree to the terms after the immediate pressure of wedding planning has passed.

Prenups for Reservists and National Guard Members

Reserve and National Guard retirement can create special issues. Retirement may be based on points, qualifying years, active duty periods, drill status, mobilizations, and age-based eligibility. A spouse may later claim that some portion of the retirement was earned during the marriage even if payment will not begin until years later.

A military prenuptial agreement for a reservist or Guard member should address:

• Points earned before marriage;

• Points earned during marriage;

• Points earned after separation;

• Active duty mobilizations;

• Reserve Component retirement;

• Whether the spouse waives any right to future retired pay;

• Whether the spouse waives any right to SBP or Reserve Component SBP; and

• What records will be used to determine any limited marital share if the parties do not agree to a full waiver.

Reserve retirement issues should not be handled with generic pension language. The agreement should be drafted by someone who understands military retirement.

Prenups for Service Members Who Already Have Significant Time in Service

A service member who has already completed many years of creditable service before marriage has a special reason to consider a prenuptial agreement.

For example, a service member who is already 12, 15, or 18 years into a career may be close to earning a valuable retirement benefit before the marriage even begins. If that service member marries without an agreement, a future spouse may later claim a share of the pension based on years of overlap during the marriage.

The shorter the remaining path to retirement, the more important the agreement may be. A prenuptial agreement can make clear that the military pension is tied to the service member’s career and will remain separate property.

Prenups for Younger Service Members

A younger service member may not know whether he or she will serve long enough to retire. But that does not mean a prenuptial agreement is unnecessary.

A service member who is early in a military career may later become a career officer, senior enlisted member, reservist, veteran, disability recipient, or federal employee. The retirement picture can change dramatically over time.

A properly drafted agreement can account for future uncertainty. It can protect benefits that do not yet exist, define future military retirement rights, and avoid the argument that the parties failed to contemplate the possibility of a full military career.

What If the Spouse Refuses to Sign?

A prenuptial agreement is voluntary. A spouse cannot be forced to sign it.

However, if protecting military retired pay is important, the service member should address the issue before the marriage. It is better to have a difficult financial conversation before the wedding than to litigate the issue years later in divorce court.

A refusal to sign may reveal a fundamental disagreement about financial expectations. That does not mean the marriage should not happen. But it does mean the service member should understand the legal risks before proceeding without an agreement.

What If You Are Already Married?

If the parties are already married, they may still be able to enter into a postnuptial agreement. A postnuptial agreement can address many of the same issues as a prenuptial agreement, including military retired pay, TSP benefits, SBP issues, property rights, debt, and alimony.

However, postnuptial agreements can raise different legal issues. The timing, disclosures, consideration, and circumstances of signing may be scrutinized. If the parties are already separated or divorce is being discussed, the agreement must be handled carefully.

If you are already married and want to protect military retirement benefits, you should speak with an attorney experienced in both Florida family law and military divorce.

The Agreement Should Be Drafted for Divorce Court, Not Just for the Couple

A prenuptial agreement may sit in a file for many years. If it is ever needed, it will likely be reviewed by divorce lawyers, a judge, and possibly DFAS-related professionals. The agreement should be clear enough that a future court can understand exactly what the parties intended.

That means the agreement should avoid vague language. It should define terms. It should identify military benefits specifically. It should explain whether waivers apply to benefits earned before marriage, during marriage, after separation, after divorce, or at all times. It should address SBP. It should address disability-related reductions. It should address the TSP.

Most importantly, it should be drafted with the end in mind. The goal is not merely to sign a document. The goal is to create an agreement that will actually protect the military pension if the marriage ends.

Military Prenuptial Agreement Checklist

A military prenuptial agreement designed to protect retired pay should consider the following:

• Whether military retired pay will be separate property;

• Whether the spouse waives any share of disposable retired pay;

• Whether the waiver applies to premarital, marital, and future service;

• Whether the spouse waives SBP coverage;

• Whether the spouse waives COLAs;

• Whether the spouse waives claims based on VA disability, CRSC, or CRDP;

• Whether the spouse waives indemnification or reimbursement if retired pay is reduced;

• Whether the TSP is separate, marital, or partly divided;

• Whether continuation pay or lump-sum retirement options are protected;

• Whether reserve points or Guard retirement rights are addressed;

• Whether spousal support is waived, limited, or preserved;

• Whether attorney’s fees are addressed;

• Whether child support is excluded from any waiver;

• Whether the parties exchanged full financial disclosure;

• Whether both parties had time to review the agreement;

• Whether each party had independent counsel;

• Whether the agreement selects Florida law;

• Whether the agreement addresses future relocation; and

• Whether the parties should sign a later ratification agreement.

Protect Your Military Pension Before There Is a Fight

A military pension is too important to leave to chance. Once a divorce begins, the service member may be forced to defend retirement benefits in litigation. By that point, the parties may disagree about everything: what was earned before the marriage, what was earned during the marriage, what federal law allows, what Florida law requires, and whether the former spouse should receive SBP coverage or a share of retired pay.

A prenuptial agreement can reduce that uncertainty.

The best agreements are clear, specific, fair, and carefully drafted. They are signed well before the wedding. They include proper disclosure. They identify military benefits by name. They anticipate future disability, retirement, SBP, TSP, and jurisdictional issues. They are written by lawyers who understand that military divorce is different.

We can help you make sense of how a prenuptial agreement can protect military retired pay, what rights a future spouse may otherwise claim, and how to structure an agreement that is designed to withstand a future challenge.

Please continue reading to learn more about us. If you or someone you care about is facing a military divorce or family law case, we can help. Please do not hesitate to call us today at (813) 331-5699 or contact us online.