Can I keep my pension in a New York divorce?
The part of it earned during the marriage belongs to both of you. New York treats pension benefits accrued between the wedding and the start of the divorce as marital property, divided by a formula the courts have used since 1984: the marital share is the years of plan membership during the marriage over total years of membership, and the other spouse typically receives half of that share when the pension pays out. You can keep all of it, though. In mediation, couples regularly trade: one keeps the full pension, the other keeps more of the house or the savings, with the pension valued so the trade is fair. If it is split, the split needs a separate court order, a QDRO or its public-sector equivalent, which is not included in the flat fee.
How a pension is handled
A pension is often the biggest asset in the marriage after the house, and the one people understand least.
- What is marital. Benefits earned from the date of marriage to the date the divorce is started. Years worked before the marriage are yours alone; the plan’s statement shows the dates.
- The Majauskas formula. From Majauskas v. Majauskas (1984): marital share = months in the plan during the marriage ÷ total months in the plan at retirement. The former spouse usually gets 50% of that share, paid when the pension pays, as a proportion of each payment.
- Keeping the whole pension. Have the marital share valued, then offset it against other assets. The spouse keeping the pension gives up an equivalent value elsewhere. This is the most common mediated outcome for teachers, police, nurses and state employees.
- 401(k)s and IRAs. Different from a pension: these have a balance, so the marital portion is a number and can be split by transferring part of the account. A 401(k) split still needs a QDRO; an IRA does not.
- The order. A pension split needs a Qualified Domestic Relations Order (private plans) or the equivalent for NYS, NYC, teacher and police systems. It is drafted separately, usually by a specialist, and costs extra; we tell you what before you decide.
Majauskas v. Majauskas, 61 N.Y.2d 481 (1984). Marital property: Domestic Relations Law §236(B)(1)(c) and (5).