Is My Spouse Entitled to My Pension in a Divorce?

A pension, as well as other retirement accounts such as 401(k)s, 403(b)s, and IRAs are usually considered a marital asset, as the aforementioned accounts most likely earned value during the marriage. One of the most concerning questions during a divorce is: how will my pension be split? New York courts will issue an order that will most likely follow a 1984 New York State landmark case known as Majauskas v. Majauskas

The appeals court wrote that your spouse can only claim a part of your pension that resulted from contributions made during the marriage (from the date of marriage until the commencement of the divorce action). Specifically: 50% x (the total pension) x (duration of the marriage/ duration of pension contributions).

If you have a pension plan or retirement plan, it is best to familiarize yourself with your plan to protect your financial interests and to speak with your attorney. Do not automatically presume that you will lose half of your pension, as most settlements are based upon all the assets earned during the marriage.