In a divorce splitting, the police pension or fire department pension is generally not that difficult. Equitable distribution of pensions is fairly simple under New York, except when the disability pension is involved.
Starting at the beginning, police and fire department pensions are divided just like any other pension.The courts use the Majauskas formula. Under this formula, the marital share of the pension is determined by dividing the number of months of marriage by the number of overlapping months on the job. For example. 10 years of marriage, divided by 20 years of overlapping time on the job, gives us 50%. The spouse will generally get half of that or 25%. Yes, there are exceptions, but those are very case specific.
The NYPD and NYFD Variable Supplemental Fund (VSF) is subject to equitable distribution. Yes, in a divorce the Variable Supplemental Fund is split.
Other departments have accrued sick and vacation pay. This is also split.
Deferred compensation will also be split. The calculation on that is a little complicated. Basically, however, all deferred compensation earned during the marriage will be split.
The tricky part is when the fireman or police officer is injured on the job. Then he or she may be entitled to a disability pension. Depending on how the disability pension is calculated it can either be partially marital property, totally marital property or completely separate property.
In one case, the appellate court explained it this way: “[I]nasmuch as a portion of [a spouse’s] ordinary disability pension represents deferred compensation related to length of employment occurring during the marriage, it constitutes marital property subject to equitable distribution” However, “[t]o the extent that a disability pension constitutes compensation for personal injuries, that compensation is separate property which is not subject to equitable distribution” Such is the case with an accident disability pension under the Administrative Code of the City of New York § 13-258 which is based on physical or mental incapacity proximately resulting from city service, not length of service. Berardi v. Berardi, 54 A.D.3d 982, 985 (N.Y. App. Div. 2d Dep’t 2008).
Translating this into English: If the disability pay is based upon time in service or money already put aside in a deferred compensation account, it will be considered marital property and subject to equitable distribution. In this case disability pay can be divided or split in a divorce. However, if the disability is based on compensation for an injury, then it cannot be divided in a divorce. If the amount of money to be received is based upon the extent of the injury, then the disability pay cannot be divided by the court.
NYPD disability retirement is pretty straightforward. The service member receives 75% of his/her base pay. This 75% is not fully marital property. What generally happens is that the judge will find that 50% of the retirement is marital and will divide that. The remaining 25% is treated as separate property not subject to distribution.
