Equitable Distribution of Post Office Pensions Under New York Divorce Law

As I have pointed out else where, under New York divorce law, pensions earned during marriage are subject to equitable distribution. However, since there are a variety of different pensions available from the multitude of employers, the rules are not always consistent.

For example, military disability pay is not subject to equitable distribution.

The Post Office pensions also presents unique challenges and issues. Since the pension comes from the federal government is it needlessly complicated, as least for the divorce lawyer.

One important issue was recently addressed by Nassau County Divorce Judge, Anthony Falanga. Justice Falanga is one of the brighter and more pragmatic judges deciding divorce cases in New York. He spent over 30 years as a divorce lawyer himself, and understands the issues and concerns of the litigants.

In the case of Grimmer v. Grimmer , published in the New York Law Journal on March 21, 2008, on page 31, Justice Falanga addressed the issue of whether all or just part of a Post Office pension is subject to equitable distribution under New York divorce law. He found that as an employee of the Post Office, the husband, was not eligible to contribute to or receive social security. Instead, a part of his Post Office pension would be a replacement for social security. Social Security is not subject to equitable distribution.

Citing the case of Wallach v. Wallach 37 AD3d 707, Justice Falanga observed that under the Federal Civil Service Retirement System (FERS) a court was directed to “deduct from the value of the retirement benefit the portion thereof that substitutes for social security.”

Based upon the Wallach decision, Justice Falanga found that the entire Post Office pension is not subject to equitable distribution. The portion of the pension that substitutes for social security must be removed. Assume the husband is getting $1500 a month in the pension. He worked 30 years, and was married for the entire 30 years. The court orders that the pension be divided in half. Further assume that the social security substitution is 30 percent. So, only $1000 of the $1500 is pension, while the remaining is counted as social security. The wife would get $500 a month (one half of $1000) not $750 a month (one half of $1500).

An important caveat for the holder of the pension is to make sure that your lawyer knows and understands this fact. Typically, in divorce actions, we divorce lawyers hire a pension appraisal service to provide the value of the pension. Make sure that the pension appraisal takes into account the social security replacement.

Adultery and Equitable Distribution Under New York Divorce Law

Under The New York Law, Adultery by A Spouse Will Not Effect Equitable Distribution

No, you don’t get the house if s/he cheated on you.

One of the most frequent questions I get asked is: “If my spouse cheated on me, do I get the house?” To put this question in proper legalese, the question is “if my spouse committed adultery will it effect equitable distribution.”  People believe that cheating spouse (husband or wife) should pay for this misdeed. Sadly, cheating during marriage is a not uncommon. Just as sadly, the New York Divorce Courts are not really interested in the whys of a failed marriage.

The New York Divorce Courts Do Not Punish A Cheating Spouse by Altering Equitable Distribution

The first thing to keep is mind is divorce law, as opposed to criminal law, is not concerned with punishment. The court is seeking to get an equitable resolution and not punishing someone for a moral lapse. While adultery is considered a moral lapse by many religions, it is not punished in divorce.

Under New York divorce law, the courts draw a line between determining the grounds or reason for the divorce, and the division of property.

While infidelity  is emotionally harmful to the marriage, and can have an adverse impact on the children, the courts will generally not consider it as a factor in division of the marital property. Cheating, by itself will not result in you “getting the house.” Equitable distribution is not effect by cheating. The New York Divorce Courts do not take any moral position about adultery. The court is only interested in a fair distribution of property.

While the cheated on spouse may feel it is fair to get more property, the courts did not agree. The New York Divorce Courts view marriage as an economic partnership. Each party puts an economic value into the marriage. It is this economic value that the court divides with equitable distribution. Emotional hurt, such as that caused by adultery is not considered as a factor by the courts.

But, Sometimes Adultery Can Effect Equitable Distribution by The Courts

I know it sounds like I’m contradicting myself.  On one hand I just explained how adultery does not effect equitable distribution. But, I am not. I said, adultery, by itself will not effect equitable distribution.

Now, lets look at other facts of adultery which could effect equitable distribution. For example, if the cheating spouse diverted marital funds or assets to the girlfriend /boyfriend. (We divorce lawyers use the term “paramour”). The typical examples are the purchase of an apartment or of jewelry. This conduct is called “dissipation of marital assets.” Under those condition, a judge can, under New York divorce law, recover the money that the cheating spouse spend on his/her boyfriend or girlfriend. But, remember, the court is not going to give the non-cheating spouse the house as punishment. So, infidelity  is not punished, but is a factor when showing that assets have been wrongfully taken from the marriage.