New York Divorce Law...

New York Law - Can Pension Plans Be Divided?

Pension plans of either party may be divided.

The court uses one of two ways to do this. The two ways are:

• Current value. The court estimates the current value of the pension, using statistical projections. Then it awards the non-employee spouse a portion of that value in cash.
• Actual distribution. The court decides what portion of the pension the non-employee spouse should get. Then, when the pension is actually distributed, the non-employee spouse gets that portion of each payment.

Cases:

Burns (1994) 618 NYS2d 761 (non-vested pension plan is a marital asset).

Olivio (1993) 604 NYS2d 23 (After the divorce, the employer made three offers to employees, in order to encourage early retirement. 1. A 100% benefit, even to employees not yet eligible. This was found to be marital property that had to be shared with the ex-spouse. 2. A bridge payment to cover until Social Security started. This was found to be post-separation income and not shared. 3. A one-time payment for separation-from-employment. This also was found to be post-separation income and not shared.)

Elmaleh (1992) 584 NYS2d 857 (The portion of the pension earned before marriage is separate property, as is the portion of the pension earned after the divorce filing. The court awarded the wife 50% of the marital portion.).

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