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Decades Of Litigation Experience


| Apr 9, 2021 | Firm News |

By Matt Cavallo, Esq.

Under New York law, you may be entitled to a portion of your spouse’s pension. In Majauskas v. Majauskas, the court ruled that a spouse is entitled upon divorce to “one half of a percentage of the amount of each pension benefit payable to [the pension holding spouse], less taxes, that percentage to be derived by dividing the number of months the parties had been married before the commencement of th[e] action . . . by the total number of months of credits the [pension holding spouse] will have earned toward [the] pension as of the date of retirement.” 94 A.D. 2d 494, 497-98 (App. Div. 4th Dep’t 1983), aff’d on appeal, 61 N.Y. 2d 481 (N.Y. 1984).

The parties, when a case is settled, may agree to use a professional service to determine the value of the marital share of the pension to which the receiving spouse is entitled. The professional service organization will draft a Domestic Relations Order that sets forth the terms regarding the distribution of the pension. The professional organization will then submit a proposed Domestic Relations Order (DRO) to the pension administrator for approval.

If the draft of the DRO is approved, it becomes a Qualified Domestic Relations Order (QDRO), and it is then submitted to the Judge on the case for signature. After it is signed, the QDRO is then submitted to the pension administrator, and if it is ultimately accepted, the payee spouse who is owed part of the pension will begin receiving their share of the pension directly from the administrator of the pension in periodic payments.

In the interim, while the parties are waiting for the process to be completed, the parties will often agree in a stipulation of settlement that the payor spouse will send the anticipated periodic payment amounts for the pension directly to the payee spouse.