If a spouse is undergoing a divorce, they will normally ask if the other spouse would be entitled to any portion of their pension. For the last 25 to 30 years in the State of New York, that issue has been governed by a court of appeals case known as Majauskas. What that means is that the spouse that does not have the pension is entitled to a mathematical formula to arrive at their percentage of what the pension would be.

An illustration will serve to prove the point. If you’re married for 10 years, but your spouse has been working for 20 years, you would be entitled to one-half of the marital portion, the martial portion being the 10 years out of the 20 years that he’s worked for the company. In essence, instead of being entitled to one-half of the pension over 20 years, you would be entitled to one-half of the pension over the 10-year period. That would be the Majauskas formula percentage for the parent, who does not have the pension.

There are also other ways to determine what percentage of a pension you will receive after your divorce. These equitable distribution options include a flat dollar amount, a modification of the Majauskas formula that is put in place by the state or, finally, a percentage that is calculated in relation to the date of the divorce action. The flat dollar amount option essentially freezes what the amount received by the ex-spouse regardless of whether or not the salary of the person with the pension rises. In terms of the modification of the Majuaskas formula that typically calls for half the marital portion of the pension, these terms can be negotiated depending on the circumstances of the parties involved. If you have any concerns about what percentage of your ex-spouse’s pension you are entitled to receive after your divorce is finalized, please contact us for legal counsel.

If you are in need of legal counsel, please contact The Penichet Firm and we will be happy to assist you in your family and criminal law matters.