Pearl River, NY Divorce Law Firms & Lawyers

The pension that a Participant is entitled to receive from a pension is a benefit held in trust by the Retirement System and the Participant is considered the beneficiary of that trust. The Participant cannot assign retirement benefits to another person and, because the Retirement System has no legal relationship with an ex-spouse, no payments will be made to an ex-spouse based on a separation agreement or judgment of divorce alone.  The New York State Court of Appeals determined that Retirement System benefits constitute marital property and are subject to the equitable distribution provisions of the Domestic Relations Law (Majauskas v. Majauskas, 61 NY2d 481, 474 NYS2d 699). Therefore, a pension plan will honor only a properly drawn Domestic Relations Order (DRO) issued by a court. A Domestic Relations Order (DRO) is a court order issued after a final judgment of divorce that provides the ex-spouse of a Participant with a share of the Participant's benefit upon retirement. The DRO may also require a Participant to designate the ex-spouse as a beneficiary of a pre-retirement death benefit, a post-retirement death benefit (if applicable) or as the beneficiary of the Participant's retirement option. Please note that, unlike a private pension plan, the rights of membership in the Retirement System belong only to the Participant. The spouse of a Participant has no statutory rights or protections. As a governmental plan, the Retirement System is exempt from the provisions of the Employees' Retirement Income Security Act (ERISA), the Retirement Equity Act of 1984 and the Internal Revenue Code (IRC) that provide for Qualified Domestic Relations Orders (QDROs) (see ERISA Section 4 (b) and IRC Section 414 (P) (9)). The spousal notification, spousal consent and surviving spouse protections of ERISA do not apply in the case of a state governmental plan. All rights given to an ex-spouse must be set forth explicitly in the DRO or they will not exist for him or her.  If you have waive your rights in a properly drawn waiver agreement, then it is possible that you are not entitled to any portion of the pension; however, you should consult with an experienced attorney to review the documents and circumstances under which you signed to determine if there was in fact an effective waiver of rights.   - Alfred Polizzotto, III