Protecting Pensions & 457's

Disability Pension in Divorce

What happens to Disability Pension in Divorce?

A firemen’s disability pension in divorce is treated differently than a traditional non-disability pension would be. A traditional pension benefit in a divorce is treated as partially separate property not subject to distribution, and partially marital property subject to a 50/50 split amongst the spouses. The marital portion of a traditional pension is anything accrued on the pension from the date of the marriage to the date of divorce. Anything accrued on the pension during this time would normally be subject to equitable distribution in a divorce.

This is not the same for a disability pension benefit. For a disability pension in divorce, the marital portion of the pension may be significantly less. Under the laws of New York, any money received for a personal injury is considered totally separate and not subject to be split in a divorce. Therefore, in a disability pension, the amount of money in the pension that is attributed to the firemen’s injury is completely separate. The amount of the pension that is to be considered separate property largely depends on how the pension was calculated and what percent was attributed to the disability.  Additionally, any money accrued in the pension prior to the marriage also remains separate as it would in a traditional pension. The remainder of the pension that was accrued after the date of marriage and is not attributed to a disability would be the marital portion subject to distribution in a divorce.

In determining what percentage of the pension is attributed to disability, New York courts have held that the party receiving the pension benefit and seeking to avoid distribution is responsible for proving the pension is separate property.

For more information on case law surrounding a disability pension in divorce, visit http://www.osc.state.ny.us/retire/members/divorce/dro_guide/disability.php

Comments are closed.