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NY Divorce and UK Pension Rights
It is well established in New York that in the determination of parties' rights in a divorce action, marital property is “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action.” New York Domestic Relations Law (DRL) 236[B][1][c]. Accordingly, pension rights earned during a marriage “are properly considered marital property subject to equitable distribution.” Olivo v. Olivo, 82 N.Y.2d 202, 207 (1993); Majauskas v. Majauskas, 61 N.Y.2d 481; Dolan v. Dolan, 78 N.Y.2d 463, 464-65; Berardi v. Berardi, 54 A.D.3d 982, 985.
In most instances, there are two basic methods available for the distribution of pension benefits — either the non-titled spouse would receive a lump sum discounted for present value, or a future periodic distributive award premised upon his or her share of the benefits that the titled (employee) spouse will receive in the future. Bianco v. Bianco, 21 A.D.3d 918 (2d Dept., 2005) (citing Majauskas, supra).
In the latter instance, such a distributive award would be memorialized in a qualified domestic relations order (QDRO). See generally Mesholam v. Mesholam, 11 N.Y.3d 24 (2008); Kazel v. Kazel, 3 N.Y.3d 331 (N.Y. 2004). (This article does not address the validity or efficacy of a QDRO under the Federal Employee Retirement Income Security Act of 1974 (ERISA) [29 U.S.C. § 1001 et seq.], or the scope or specific benefits conveyed by a QDRO.)
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