Divorce Pension Rights Attorney in Long Island NY

Making Sense of your Pension Rights in a Divorce Action in New York

Often, one of the largest marital assets that couples need to divide when they divorce are pensions or other retirement accounts. The Domestic Relations Law governs divorce in New York, and it provides that money earned during the marriage is marital property. Therefore, contributions made during the marriage to retirement accounts, including but not limited to defined benefit pension plans, deferred contribution plans such as 401(k) or 403(b) plans, or Thrift Savings Plans, are marital and are distributed under New York's equitable distribution scheme.

Retirement plans fall into two categories- qualified and non-qualified. Qualified means that the plan is covered by the Employee Retirement Income Security Act (ERISA). Qualified plans require a Qualified Domestic Relations Order (QDRO) before the plan can be divided. The QDRO is a court order, signed by a judge, which tells the plan administrator to distribute the retirement account according to the proportion stated in the order.

In New York, QDROs divide retirement accounts between the divorcing parties using a formula found in a New York Court of Appeals case, Majauskas v. Majauskas (61 N.Y.2d 481, 474 N.Y.S.2d 699 (1984). Under Majauskas, the non-titled spouse (also known as the alternate payee) is entitle to a share of the retirement account of the employee spouse (also known as the participant) based on the following formula:

  • Number of months of marriage during which the employee spouse participated in the deferred compensation pla
  • X 50%
  • X gross amount of plan
  • Total number of months of spouse's employment

The QDRO must be approved by the plan administrator before it is submitted to the court for the judge's signature. After being signed, the QDRO will be entered as an order in the clerk's office and then served on the plan administrator. Only at that point are your rights in your spouse's retirement plan fully protected.

It is important to act quickly to obtain a QDRO so that you do not forfeit your rights. Pension issues can be complicated. You need to determine what type of plan your spouse has and how it pays out. Some plans allow for an immediate lump sum distribution, while other plans mandate that you must wait for your share until the employee spouse retires. If the plan is not protected, loans or withdrawals can be made before your rights are secured.

What happens if the employee spouse dies before the payments begin? The non-employee spouse may be entitled to a pre-retirement survivor benefit, but only if provision is made for such a benefit in the parties' divorce agreement and it is written into the QDRO. If the employee spouse dies after the pension is in pay status, the non-employee spouse may be entitled to a joint and survivor benefit if same is in the parties' agreement and it is included in the QDRO.

An experienced family law attorney who practices throughout Long Island in Nassau County can ensure that you receive the maximum benefits from a QDRO.

At the Law Offices of Paul A. Boronow, PC, our attorneys have experience in obtaining and enforcing QDROs for our clients in Nassau County. Contact our office today to schedule a free consultation to learn about your legal rights. Contact us at (516) 227-5353.

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