ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

September 17, 2010

Retirement benefits and divorce

Retirement benefits and divorce
Massaro v Massaro, NYS Supreme Court, [Not selected for publication in the Official Reports, see 2002 WL 243385]

In Massaro v Massaro, New York State Supreme Court Justice Blydenburgh answered an important question concerning the rights of a divorced spouse to benefits from a public retirement system such as the New York State Employees' Retirement System [ERS]. The question:

Should the final pension amount to be divided between divorced spouses include benefits due an employee at the time of his or her retirement that can be attributed to promotions received by the employee after the commencement of an action for divorce?

Both parties agreed that the divorced wife "is entitled to one half that pension that was earned as martial property." When the divorce action was commenced, the husband was a sergeant with the Suffolk County Police Department and a member of the Police and Firefighters Retirement System [PFRS].

Although there was no question that "an increase in the final pension amounts due solely to length of years in service, is marital property" and his former wife was entitled to share in that increase, Massaro argued that any increase because of promotions which came after the commencement of the divorce action are similar to a change of job, and no increase in his pension due to his increased salary because of promotions should be considered marital property. Massaro's theory was that "any promotion ... beyond Sergeant, coming not only after the commencement of this action, but subsequent to the divorce itself, could not be attributed to any action of [his former spouse] and for which she did not reasonably have any expectation."

His former wife, on the other hand, contended that she was entitled to her percentage of the retirement allowance actually paid to her former spouse, regardless of the reasons why his pension may have been increased.

According to Justice Blydenburgh, Massaro's promotion resulted from tests taken or lists established after the commencement of the divorce proceedings. Justice Blydenburgh reasoned that since neither party had any expectation of future pension increases due to promotions, any promotion earned by Massaro after the commencement of the divorce would have resulted from his actions alone.

Accordingly, the Court ruled that Massaro's former spouse was not entitled to share in any increase to his pension at the time of his retirement resulting from increases as a result of any post divorce promotions. What should she receive? The amount she would have been entitled to receive had Massaro not been promoted and retired from service as a Sergeant.

In dollars and cents, this means that Massaro's former spouse will be only entitled to that portion of Massaro's retirement allowance based on his "final average salary" as a Sergeant, but calculated using his total period of PFRS member service.

Massaro's portion of his retirement allowance, on the other hand, will be determined on the basis of his post-promotion "final average salary," which, presumably, would be higher than his "Sergeant final average salary," and his total member service credit in the system.
.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
Copyright 2009-2024 - Public Employment Law Press. Email: nyppl@nycap.rr.com.