IS MY PENSION CONSIDERED MARITAL PROPERTY IN MY DIVORCE FOR PURPOSES OF EQUITABLE DISTRIBUTION?


In New York State, the Court of Appeals determined that pensions are in fact considered a marital asset subject to equitable distribution. Pursuant to Domestic Relations Law §236 [B] the court must distribute assets equitably which does not always mean evenly. The Court is required by the provisions of Domestic Relations Law § 236 [B][6] to consider fourteen factors when distributing marital property. New York Courts typically apply the Majauskas formula to determine your ex-spouse’s share of your pension. This formula gives your ex one-half of the portion of your pension earned during the marriage. It is based on the years of service accrued during the marriage divided by the total service credit at the time of the retirement then multiplied by .5.


After the Court determines each spouse’s share, the courts will order the pension to be appraised which is referred to as a “valuation” and the parties will determine how to distribute the pension. Many parties’ choose the deferred distribution method, which splits the benefits monthly and the parties submit a qualified domestic relations order (DRO) to the court which specifies how much each party will receive once the pension becomes payable. Determining how a pension should be split in a divorce is often complicated, but the experienced attorneys at Capetola & Divins are here to help guide you through the process.

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