How To Keep Your Pension in Divorce


Most of us cops, fireman, and other civil service workers have always believed we must give our soon to be ex-spouse half the retirement benefits we worked for years to build. This is a wrong way of thinking. There are ways to avoid losing half of your retirement to your soon to be ex- spouse. See New York State Domestic Relations DRL § 236B. Moreover DRL § 236B(5)(a) authorizes the court to equitably distribute marital property during (for our purposes) a divorce.

The courts look at the officer’s pension as marital property. Marital property is considered as property earned or gained during the date of the marriage.  The rule is that anything determined as marital property (e.g. a house, pension, land, money, pets, etc.) gained or lost during the marriage is equal property to both spouses. This includes a person’s pension or retirement benefits.

There is also separate property. Separate property is property that the law deems belonging to one party in which to the other has no claim.  Examples are an inheritance, a winning in a tort action (e.g. if one were to get hit by a car any settlement he or she would be theirs alone and not subject to equitable distribution, funds you had before the marriage, etc. This rule only applies if the funds are not commingled).  Even if a spouse were to win a lottery, the winnings would be marital property subject to equitable distribution.

Accordingly, from the time someone is married until the time one files for a divorce, any funds accrued in a pension (and other retirement benefits) are deemed marital property, For those of us on the Job that includes our pension, variable supplement, union benefits, deferred compensation and union annuity.

This is controlled by the Majauskas formula (see Majauskas v. Majauskas, 61 N.Y.2d 481 (N.Y. 1984).  The Majauskas formula states as follows, by and between the divorcing spouses: 50% × years of service credit accrued during marriage as the numerator divided by the total time of service credit at time of retirement. Or put another way… the courts determine the time of the marriage divided by the time on the job. For example, if you are a police officer and worked twenty years, and you are married twenty years, your wife gets half of your full pension. Notwithstanding that your spouse never worked, or worked a part time job and never made any significant contributions to the home, she/he still gets half the pension for which you worked twenty years.

It gets worse.  If your spouse gets custody of your child(ren), which he/she may very well obtain, if you were out there working and she/he stayed home with the child(ren), you will have to pay child support. It gets worse again.  If you were supporting your spouse and child(ren) and your spouse was not working, or working at a low paying or part time job, you will have to pay your spouse maintenance as well as child support, child care, medical benefits, as well as your pension and half the value of your home if you own one.

That is the law, and most courts follow this rule as if there are no exceptions.

Take heed!! There are always exceptions. Your author has done it. In one trial (E v. T), notwithstanding that the Court stated the she (the Judge) would not deviate from the Majauskas formula, at the end she did. My client walked away with approximately $36,000.00, which pursuant to Majauskas her spouse was entitled 50% thereof.

In another action an officer walked away with over one half million dollars he had saved during the course of the marriage.

The Majauskas formula is not law. Regardless of how much a Judge follows it. It is however case law that most courts follow without exception. Yet as it is not law. You need an attorney to stand up to the judge and fight for what is yours. An equitable distribution means “what is fair”, not “what is equal”. This is something that your attorney may not forget.

If you have time vested in the Job and are going through a divorce, notwithstanding that no promises can be or have been made, you should seek an attorney who is well versed in this area of the law and has demonstrated to the Court that Majauskas is not applicable in all cases.  It is your pension, you worked for it. The same applies with the Variable Supplement and the Union Annuity. Why should you give it to a future ex-spouse without fighting for what you earned?

There are times (depending on the facts of the case) that this formula is not appropriate.

Hugh Ehrenzweig is a retired NYPD Lieutenant (OCID).  Retired after 20 years on the Job. 21 years practicing law in matrimonial, trial (various areas), disciplinary matters, guardianship procedures, and appellate practice. He has also worked with the top personal injury firm and achieved tremendous success in that area.  If you are contemplating a divorce, or are in need of legal assistance, call Ehrenzweig and see if there is a way to save your pension, or he assist you with other legal matters. No promises are made herein, but it has been done. It could be done for you.