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October 26, 2012

The retirement option of the divorced spouse should reflect the equitable distribution formula set forth in Majauskas


The retirement option of the divorced spouse should reflect the equitable distribution formula set forth in Majauskas 
McVeigh v Curry, 2012 NY Slip Op 07091, Appellate Division, Second Department

In a matrimonial action, Supreme Court directed the plaintiff to furnish her former spouse with a copy of her birth certificate essentially for the purposes of his electing the 100% joint and survivor option of his pension fund or his obtaining life insurance and directed the defendant to elect either the 100% joint and survivor option of his pension fund or obtain life insurance to cover her 50% share of the marital portion of her former spouse's pension.

The Appellate Division modified the order issued by Supreme Court, explaining the Supreme Court erred in directing the plaintiff to furnish her former spouse with a copy of her birth certificate only for the purposes of his electing the 100% joint and survivor option of his pension fund or his obtaining appropriate life insurance, as that option could potentially result in an award to the plaintiff that is more than she is entitled to under the equitable distribution formula enunciated in Majauskas v Majauskas (61 NY2d 481).

The court observed that the 100% joint and survivor option would, upon the plaintiff's former husband’s death, provide her with the full monthly retirement allowance of her former husband's pension for the rest of her life.

In contrast, Option 3 of the defendant's pension fund, the 50% joint and survivor option, would, upon the defendant's death, provide the plaintiff with 50% of the original monthly retirement allowance for the rest of her life.*

Noting that the 50% joint and survivor option is closer to the equitable distribution formula set forth in Majauskas, the Appellate Division ruled that the Supreme Court’s order must be modified as indicated.

* Not mentioned in the opinion is the difference in the amount of the monthly retirement allowance that would be paid to the plaintiff’s former husband under the 100% joint and survivor option in contrast to the amount that would be paid to him under “Option 3.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07091.htm

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