Will My Spouse Be Able to Take Half of My Pension?

In New York, retirement benefits, including pensions, are considered to be marital assets so long as they were acquired during the course of the marriage and before the commencement date of the divorce. So a pension, a 401(k), a 403(b) or some other form of retirement or deferred account, is divisible by equitable distribution upon divorce or separation. Now the entitlement of the non-titled spouse, meaning the one who’s pension it is not, is in the law. So unless there’s some kind of offset against some other asset, generally speaking, the person who is the non-titled spouse for that particular retirement asset will receive half. However, half is measured from the date of the marriage to the date of the commencement of the divorce.

So for example, if a person was in a pension system for ten years prior to the date of marriage and now it’s ten years later when they are getting divorced, only the last ten years of the pension would be used to calculate the non-titled spouse’s share. So it’s not a 50/50 of everything; it’s only a 50/50 of the marital portion, as we say, of that pension or retirement account.

Robert Pollack is an experienced divorce and family law attorney in Long Island, New York. Contact The Pollack Law Firm, P.C., to set up a free initial consultation.