Retirement benefits and divorce

Retirement benefits and divorce
Rogovin v Rogovin, NYS Supreme Court (Justice Flug), [Not selected for publication in the Official Reports]

One of the elements in a divorce settlement is the right of a former spouse to a share of the retirement benefits paid to his or her former spouse. As Judge Flug noted, the leading case in New York regarding pension rights in a divorce situation is Olivo v. Olivo, 82 NY2d 202.

In Olivo the Court of Appeals held that “a pension right jointly owned as marital property is subject to modification by future actions of the employee” and that the former spouse of an employee who earned a promotion after the divorce, which was not in ‘the “pipeline” at the time of the divorce “... is not entitled to keep the ‘excess’ earned beyond what would have accrued at the time of expected retirement.” Here Judge Flug concluded that the parties to a divorce may, by a specific agreement, provide for a different result.

When the Rogovins divorced, the wife agreed, “as part and parcel of the settlement of this action...” to assign husband “a sum equal to ten percent of the monthly [retirement] benefits from her employment ....” Following the divorce, the wife sought and attained a promotion, which resulted in her receiving higher compensation, which will eventually provide her with a higher retirement allowance.

The former Mrs. Rogovin attempted to have the terms of the divorce settlement revised. She contended that since her pension benefits will be substantially enhanced as the result of her promotion and her former husband, “having not contributed to such enhanced benefits,” does not deserve any pension benefit attributable to her promotion. She asked to court to direct that her former spouse’s “participation in the pension” be limited to an amount equal to ten per cent of what she would have received had she remained a teacher.

Judge Flug said no, holding that “the parties entered into a written stipulation.” Such agreement, said Judge Flug, has the force and effect of a contract. The Court refused “to interpret and redraft the parties’ agreement” as this would be a clear derogation of the sanctity of contracts.

The court said that “it is clearly and unequivocally established that the stipulation called for the [husband] to receive ten per cent of the pension whenever his former wife retired and whatever the amount.
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