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Divorce and Your Benefits

Equitable Distribution and Your Benefits

  1. I am divorced and planning to retire. Is my ex-spouse entitled to a share of my pension?
  2. How will my ex-spouse’s share be calculated?
  3. Can an ex-spouse leave his or her share to someone else when he/she dies?
  4. I am a Participant with a DRO on file and I have since remarried. The DRO requires me to elect a Joint Allowance (survivorship) option and designate my ex-spouse as beneficiary. Can I designate my current spouse for the remainder of my option benefit?
  5. Can an ex-spouse obtain benefits as soon as the Participant is eligible to retire?
  6. My ex-spouse is a Participant of the Retirement System. He or she owes me child support (or alimony). Can I collect part of his or her pension for child support?
  7. Will an Income Execution served on my employer and deducted from my salary carry over to my pension?
  8. When I retired, I elected a Joint Allowance (survivorship) option and named my spouse as beneficiary. We are now divorced. Can I remove my ex-spouse from my option or change my option?
  9. I named my spouse as the beneficiary of my death benefit. Would a divorce, annulment or judicial separation affect that designation?
  10. When we were married, I had named my ex-spouse as one of two primary beneficiaries, but we have subsequently divorced. I understand that the designation of my ex-spouse is now revoked. Is the designation of my other primary beneficiary also revoked?
  11. I am a Participant of the Retirement System and I am divorced. Can I retire if there is no DRO on file?
  12. I am a Participant of the Retirement System with a DRO on file. I am told that this will hold up my pension. Is this true?
  13. I am a Participant with a DRO on file. When I retire, will I receive advance or partial pay based on my estimated benefits while the Retirement System is calculating my pension, or will I have to wait until my pension is finalized to receive any payments?
  14. Will my ex-spouse receive advance or partial pay based on my estimated benefits while the Retirement System is calculating my pension benefit?
  15. I am applying for a disability retirement and I am divorced (or going through a divorce). Will my ex-spouse be entitled to a share of my disability pension?
  16. I am a Participant and have a DRO which provides my ex-spouse with a Special Joint Allowance option upon my retirement. What does this mean?
  17. I am a Tier 1 or 2 member and am eligible to receive Article 19 service at retirement. Will the calculation of my ex-spouse’s distribution include this additional service (applies also to early retirement incentives)?
  18. Will my ex-spouse’s share of my pension be based, in part, on my military service credit?
  19. I am planning to purchase service credit. Will this affect my ex-spouse’s share?
  20. I am divorced with a DRO on file. May I take a loan?
  21. Is my ex-spouse entitled to a share of my cost-of-living adjustment (COLA)?
  22. I will be receiving a refund of my contributions as a result of tier reinstatement (or withdrawal). Is my ex-spouse entitled to a portion of this refund?
  23. My ex-spouse is entitled to a share of my pension when I retire. Will I have to pay tax on his or her share?
  24. What happens if I have a DRO on file and my ex-spouse dies before I retire?
  25. I am a member of the Police and Fire Retirement System and interested in the Partial Lump Sum option (PLS). But, I am divorced and have a DRO on file. Am I still eligible for PLS?
  26. How do you determine who pays for the cost of a Joint Allowance (survivorship) option?
  27. If I transfer to another retirement system, will a new DRO have to be served on that system?
  28. I do not think that the terms of my DRO on file with the Retirement System are correct. Can the DRO be amended?
  29. My divorce was not granted in New York State. Will the Retirement System accept an out-of-state DRO?
  30. My service credit and salary have increased significantly since my divorce. Will my ex-spouse share in the resulting increase in my retirement benefit?
  31. How do I get an estimate of my retirement benefit showing how much I will get and how much my ex-spouse will get?
  32. When there are competing DRO and child support orders, which takes precedence?
  33. Can a Participant add a Pop-Up to his/her option election if there is a DRO on file?
  1. I am divorced and planning to retire. Is my ex-spouse entitled to a share of my pension?

    Under New York law, pensions earned during the marriage are considered marital property, along with other assets acquired during the marriage, such as houses, cars, stocks, and joint bank accounts.

  2. How will my ex-spouse’s share be calculated?

    The DRO specifies the calculation we must use to determine your ex-spouse’s share. The Retirement System will not calculate a distribution for an ex-spouse unless a DRO is on file with us. Courts generally use a mathematical formula known as the Majauskas formula. This formula provides your ex-spouse with one-half of the part of your pension that was earned while you were married.

    The Majauskas Formula:

    50 percent × years of service credit accrued during the marriage ÷ total service credit at time of retirement.

    For example, if the Participant accrued 15 years of service credit while married, and retires with 30 years total service credit, the ex-spouse’s share will be 25 percent of the pension. (50% × 15/30 = 25%).

    The Retirement System does not require the Majauskas formula to be used. The Court may arrive at a different computation. The Retirement System will follow the Court’s directive in computing your ex-spouse’s share.

  3. Can an ex-spouse leave his or her share to someone else when he/she dies?

    No, an ex-spouse cannot designate a beneficiary to receive his or her share of the pension when he/she dies.

  4. I am a Participant with a DRO on file and I have since remarried. The DRO requires me to elect a Joint Allowance (survivorship) option and designate my ex-spouse as beneficiary. Can I designate my current spouse for the remainder of my option benefit?

    No. There is no "remainder." You can name only one beneficiary for an option that pays a lifetime benefit to another person. Under a Joint Allowance, your pension will be calculated based on your life expectancy and that of your option beneficiary as well as the amount of time the pension will be paid after your death. If the DRO permits you to elect an option that is not based on another individual’s life expectancy (such as a Certain Option or a Cash Refund Option), then you can name multiple beneficiaries.

  5. Can an ex-spouse obtain benefits as soon as the Participant is eligible to retire?

    No, an ex-spouse cannot obtain any benefits until the Participant actually retires and his or her pension payments have begun.

  6. My ex-spouse is a Participant of the Retirement System. He or she owes me child support (or alimony). Can I collect part of his or her pension for child support?

    Yes, but you must have an income execution for support to obtain child support or alimony payments. For assistance in obtaining an income execution, contact your county office for child support services. You can also collect child support by using a Domestic Relations Order. Please note that we cannot make payments to you until the Participant actually retires and his or her pension payments have begun.

  7. Will an income execution served on my employer and deducted from my salary carry over to my pension?

    No. A new income execution would have to be served on the Retirement System.

  8. When I retired, I elected a Joint Allowance (survivorship) option and named my spouse as beneficiary. We are now divorced. Can I remove my ex-spouse from my option or change my option?

    No. A retirement option becomes irrevocable 30 days after the date the retirement benefit is payable. With certain options, including the Joint Allowance options, the beneficiary designation is also irrevocable after the 30-day period.

  9. I named my spouse as the beneficiary of my death benefit. Would a divorce, annulment or judicial separation affect that designation?

    Effective July 7, 2008, the designation of your spouse as beneficiary of certain benefits is revoked if you get a divorce, annulment or judicial separation and we receive written notice, unless you have a DRO on file that specifies otherwise. The designation is revoked regardless of when the final decree of divorce, annulment or judicial separation was entered.

    Designations affected are:

    • Pre-retirement Ordinary Death Benefit (all Tiers);
    • Post-retirement Ordinary Death Benefit (ERS Tiers 2, 3, 4 and 5);
    • Cash Refund Initial Value option (Tier 1);
    • Cash Refund Contributions option (Tiers 1 and 2);
    • Five and Ten Year Certain options (all Tiers);
    • Certain alternative options with beneficiaries that can be changed.

    If you wish to keep your ex-spouse as beneficiary, you must re-designate him or her after the date of the divorce, annulment, or judicial separation. Contact us for the appropriate form.

    If you and your ex-spouse remarry, the designation of your ex-spouse as beneficiary is reinstated, provided you have not made another designation during the time your marriage was dissolved.

  10. When we were married, I had named my ex-spouse as one of two primary beneficiaries, but we have subsequently divorced. I understand that the designation of my ex-spouse is now revoked. Is the designation of my other primary beneficiary also revoked?

    The beneficiary form designating your ex-spouse is not void, only the designation of your ex-spouse is revoked. The designation of any other primary or contingent beneficiaries named on the form remains in effect. Therefore, a benefit would be payable first to any remaining primary beneficiaries named in a designation. If no other primary beneficiaries were named, the benefit would be payable to any contingent beneficiaries named in the designation. If your ex-spouse was the sole primary beneficiary named and no contingent beneficiaries were named, the death benefit would be payable to your estate.

  11. I am a Participant of the Retirement System and I am divorced. Can I retire if there is no DRO on file?

    Yes, you are permitted to retire. If you have an obligation to provide your ex-spouse with part of your pension and there is no DRO on file, the obligation is yours alone. The Retirement System will not take a distribution on your ex-spouse’s behalf; however, you may be obligated to pay your ex-spouse directly.

  12. I am a Participant of the Retirement System with a DRO on file. I am told that this will hold up my pension. Is this true?

    No. Though the DRO will be referred to the Matrimonial Bureau for review, it will not hold up your retirement.

  13. I am a Participant with a DRO on file. When I retire, will I receive advance or partial pay based on my estimated benefits while the Retirement System is calculating my pension, or will I have to wait until my pension is finalized to receive any payments?

    You will receive advance payments, although there may be a slight delay while we calculate the appropriate amount. The Retirement System must take into account the share we will pay your ex-spouse.

  14. Will my ex-spouse receive advance or partial pay based on my estimated benefits while the Retirement System is calculating my pension benefit?

    No, however once your retirement benefit is finalized, your ex-spouse will receive a lump sum payment retroactive to your date of retirement. Please note that this only applies to situations where the signed DRO is on file before the retirement is finalized.

  15. I am applying for a disability retirement and I am divorced (or going through a divorce). Will my ex-spouse be entitled to a share of my disability pension?

    Yes. The courts have held that a disability pension is subject to distribution; however, the court may limit your ex-spouse to a share of what a hypothetical service pension would have paid you. The DRO must include specific language regarding this distribution.

  16. I am a Participant and have a DRO which provides my ex-spouse with a Special Joint Allowance option upon my retirement. What does this mean?

    When you retire, the Retirement System will calculate the precise amount of your ex-spouse’s marital share, and your ex-spouse will receive this share for the duration of his or her life. For example, if your ex-spouse was entitled to a 33 percent share of the pension, the Retirement System will continue to pay this amount for the duration of your ex-spouse’s life, even if you predecease him or her.

  17. I am a Tier 1 or 2 member and eligible to receive Article 19 service at retirement. Will the calculation of my ex-spouse’s distribution include this additional service (applies also to early retirement incentives)?

    This will depend on the precise wording of the DRO on file. If the DRO lists a fixed number of months or years in the numerator of the Majauskas formula, the Retirement System will not apportion Article 19 or incentive service. However, if the DRO requires us to calculate all marital service between two dates (i.e. the date of marriage and the date of the commencement of divorce) then we will pro-rate the additional service into the numerator, and include the total of the additional service in the denominator.

  18. Will my ex-spouse’s share of my pension be based, in part, on my military service credit?

    Any military service you purchase will be added to your total service credit at retirement. Since your total service credit increases but the service credit for the duration of the marriage remains the same, the percentage of your ex-spouse’s share is reduced. Proportionally, you will receive a greater increase from the purchase of military service than your ex-spouse. If you do not want military service used in the calculation at all, the DRO must reflect that.

  19. I am planning to purchase service credit. Will this affect my ex-spouse’s share?

    Possibly, but, as in the case of military service, the overall gain to you may not be reflected in a gain to your ex-spouse. The purchase of service credit usually reduces the percentage share for the ex-spouse.

  20. I am divorced with a DRO on file. May I take a loan?

    This will depend on whether the court permits you to take a loan. Many DROs are silent on the issue of loans. Unless they are specifically prohibited by the DRO, the Retirement System will permit loans. However, some DROs require that the Retirement System calculate the ex-spouse’s share without regard to any outstanding loans at the time of retirement. If this is the case, the ex-spouse’s share will be calculated as if the pension had not been reduced by the loan and the Participant will bear the cost of the full reduction.

  21. Is my ex-spouse entitled to a share of my cost-of-living adjustment (COLA)?

    Your ex-spouse may be entitled to a portion of your COLA, as part of his or her share of your monthly pension benefit. The Retirement System will review the DRO to determine whether it addresses a COLA distribution. Unless otherwise indicated, the Retirement System will generally interpret a DRO to require that an ex-spouse receive a share of the COLA.

  22. I will be receiving a refund of my contributions as a result of tier reinstatement (or withdrawal). Is my ex-spouse entitled to a portion of this refund?

    The DRO may specifically require that the refund be paid to the Participant or it may require a portion be distributed to the ex-spouse. If the DRO is completely silent on this issue, the refund will be sent to the Participant alone.

  23. My ex-spouse is entitled to a share of my pension when I retire. Will I have to pay tax on his or her share?

    No. The Retirement System will provide you and your ex-spouse with your own 1099-R forms and you will each be responsible for your own taxes.

  24. What happens if I have a DRO on file and my ex-spouse dies before I retire?

    The DRO will be vacated upon the death of your ex-spouse. You will need to provide the Retirement System with a certified copy of the death certificate. If your ex-spouse dies after you retire, distributions to him or her will cease when we receive a copy of the death certificate. Your ex-spouse’s payments will then revert back to you.

  25. I am a member of the Police and Fire Retirement System and interested in the Partial Lump Sum option (PLS). But, I am divorced and have a DRO on file. Am I still eligible for PLS?

    Yes, you are eligible for PLS. If the DRO addresses the PLS option, the Retirement System will review the terms of the DRO and comply with the order. If the DRO does not address the PLS option, the Retirement System will calculate your ex-spouse’s share as if you did not choose PLS so his or her share will not be reduced by your PLS election. If your ex-spouse wants to receive a portion of the PLS distribution and the DRO does not address the PLS, or if there are any other objections involving the PLS payment, the DRO will need to be revised.

  26. How do you determine who pays for the cost of a Joint Allowance (survivorship) option?

    The terms of the DRO will dictate who pays for the cost of the option. Either party can bear the entire cost of the option or it can be shared proportionately.

  27. If I transfer to another retirement system, will a new DRO have to be served on that system?

    Yes, the DRO must specifically identify the retirement system, so a new DRO would be required.

  28. I do not think that the terms of my DRO on file with the Retirement System are correct. Can the DRO be amended?

    Possibly. You need to get an amended DRO from the court in order to change the terms of your DRO. The Retirement System has no authority to change the terms of your DRO.

  29. My divorce was not granted in New York State. Will the Retirement System accept an out-of-state DRO?

    The Retirement System will accept an out-of-state DRO if it is registered with a New York court prior to being submitted to us. As an alternative, the Participant can sign a Consent to New York Jurisdiction and Release form Adobe pdf consenting to the laws of New York State and releasing the Retirement System from any liability whatsoever as a consequence of any payments based upon the order.

  30. My service credit and salary have increased significantly since my divorce. Will my ex-spouse share in the resulting increase in my retirement benefit?

    The terms of the DRO will indicate whether your ex-spouse will share in the increased retirement benefit. If the DRO specifically requires us to calculate a hypothetical service retirement using your earnings and years of credited service as of the date the action for divorce began, your ex-spouse will not share in the increased benefit. The DRO should also require us to calculate the retirement benefit using the factors for the Participant’s actual retirement payment but without any reduction for early retirement.

  31. How do I get an estimate of my retirement benefit showing how much I will get and how much my ex-spouse will get?

    For an estimate based on current factors, please send your written request to:

    The New York State and Local Retirement System

    Estimates Bureau

    110 State Street

    Albany, NY 12244-0001

  32. When there are competing DRO and child support orders, which takes precedence?

    When executing multiple support orders, the Retirement System will deduct the DRO prior to any deductions for child support. This is because under a DRO, the Participant’s pension has been declared marital property for equitable distribution and is not considered part of the Participant’s “disposable income.” Marital property is deducted first from gross income, and then what is left (after pension loans, other garnishes, etc.) is considered “disposable income,” for purposes of child support.

  33. Can a Participant add a Pop-Up to his/her option election if there is a DRO on file?

    Yes, a Participant may add a pop-up feature to his/her option election at his/her own expense. If the option beneficiary dies before the Participant, the Participant’s monthly benefit will be increased to the amount payable under the Single Life Allowance and continue until the Participant’s death.

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