Best Lawblog Contest for 2017 now being conducted by The Legal Institute

From now until
September 15th, 2017, Lawblog fans can nominate their favorite blogs and bloggers for inclusion in the voting round of 2017. As in previous years, the nomination process is competitive, meaning the more nominations a blog receives, the more likely it is to be included in the public voting stage of the contest.

To access the link to the nomination form, click on:

https://www.theexpertinstitute.com/blog-contest/?utm_source=email&utm_medium=email&utm_content=CTA&utm_campaign=blog-contest-8.14.2017-general

Friday, October 14, 2011

Determining the distribution of a divorced pubic employee’s retirement allowance


Determining the distribution of a divorced pubic employee’s retirement allowance
Bodolato v Bodolato, Supreme Court, Judge Mills [subsequent appeal withdrawn, 305 A.D.2d 1124]

An individual's public pension benefit is a "marital asset" under New York State Law. Accordingly, it sometimes becomes necessary to determine the value of the pension and, or, the annuity available to a public employee in the course of a divorce action.

In Bodolato v Bodolato both parties conceded that each was entitled to one-half of the value of New York City police officer Bodolato's pension benefits and deferred annuity. But establishing the value of Bodolato's pension benefits and annuity proved to be another matter.

Mrs. Bodolato contended that she was entitled to one-half of the value of Bodolato's New York City Police Department pension and deferred annuity based on its value as of the date she commenced her action for divorce. Her spouse, in contrast, argued that the value of his pension and annuity should be determined on the basis of the pension's and annuity's "market or present value" at the time of the trial -- now several years later -- in order "to avoid [Mrs. Bodolato getting] a windfall."

In support of her claim, Mrs. Bodolato cited Majauskas v Majauskas 61 NY2d 481. Officer Bodolato, on the other hand, argued that the court's ruling in Burgio v Burgio, 278 AD2d 767, set out proper standard to be applied in this situation.

Justice Mills observed that there was a significant difference between the situation in Burgio and the situation in the Bodolato action for divorce. In Burgio the plaintiff wanted a lump sum payment of pension funds that had not yet vested. Here, in contrast, Bodolato had retired from the NYPD and thus, said the court, his pension and annuity benefits have been determined.

Mrs. Bodolato had commenced her divorce action before her husband had actually retired from the Police Department. Accordingly, Justice Mills ruled that the formula set by the Court of Appeals in Majauskas controlled and thus the value of the pension and the annuity to which Mrs. Bodolato was entitled should be determined:

1. As of the date of the commencement of the divorce action by Mrs. Bodolato; and

2. In accordance with the following "Majauskas formula."

The "percentage [of Bodolato's retirement and annuity allowance] to be derived by dividing the number of months the parties were married before the commencement of the action [divided] by the total number of months of credit [Bodolato] will have earned toward his pension as of the date of [his] retirement."

If nothing else, the Bodolato decision demonstrates the complex issues that the parties may experience in attempting to establish the value of an individual's retirement benefit in order to determine the "marital distribution" of the benefit in a divorce proceeding. If the marital distribution determination involves an individual entitled to a "vested retirement allowance" -- i.e., the individual has not actually retired but is entitled to "pension and annuity benefits" upon retirement -- there may be even more complex issues to address and resolve.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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. 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 DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

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 in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.