As a Divorce Lawyer on Long Island, I see that for many married couples facing divorce, a major concern is how pensions earned over the course of the marriage will be divided. Particularly when a pension has been earned by just one spouse, divorcing couples are concerned about whether the nonearning spouse can share in it.
Individuals make regular contributions to pension plans while they are employed. The contributions are invested by the employer, union, or government entity, and then paid back to the person during their retirement. This means that, throughout the course of a marriage, one spouse may make regular contributions to the pension plan.
The owner of the pension may believe that he is entitled to the funds because he paid into it with his own employment income. The non-owner spouse may believe that, because he or she contributed to the household in other ways while the owner spouse was contributing to a pension plan, that he or she is entitled to share in the pension.
The answer is that when the pension was indeed earned during the marriage, New York state law governing Long Island provides for equitable distribution of marital assets, which means that a court will determine how to split the property, including pensions, in the most fair and equitable manner.
Is a Pension Marital Property or Separate Property on Long Island?
While some assets, like joint bank accounts, are simple to divide in equitable distribution, others can be more complicated. The first step to determining whether a pension can be divided at divorce is to determine whether the pension is marital or separate property, or both. Whether a pension is marital or separate property is often a disputed topic between divorcing spouses.
Usually, marital property consists of property acquired during the marriage. In many cases, pensions fall entirely into this category. If the pension is not marital property, then it will most likely not be subject to equitable distribution at divorce. If the pension or a portion of it is marital property, the marital property will likely be divided among the spouses. This, however, does not always mean that the assets will be split in half. Instead, courts in New York try to split the assets in the most fair and equitable manner.
The result typically depends on when contributions were made. Assets such as pensions require careful valuation and review before they can be divided. Typically, when pensions are earned during the marriage, they are subject to equitable distribution. This means that the non-earning spouse will be entitled to a share.
Under New York State law, wealth that is accumulated during the marriage, including employment income, is marital property. Therefore, pensions that are earned during the marriage are also viewed as marital property. However, pensions that were earned prior to the marriage may be considered separate property and will not be divided among spouses.
What is an Equitable Distribution of Marital Property in a Divorce?
The court looks to several factors in order to determine an equitable distribution of marital property. Important factors include the length of the marriage as well as each spouse’s ability to provide for him or herself in the future. Generally, any property gained during the marriage is considered marital property, and is therefore subject to equitable distribution. Separate property includes property owned by one spouse prior to the marriage, as well as gifts or inheritances given to one spouse during the marriage. Separate property normally does not become marital property until it is mixed with marital property or shared with the other spouse to the point that an intent to make it marital property is shown. In some cases, then, a pension earned prior to marriage can later become marital property.
Determining Equitable Distribution in a Divorce on Long Island is Not Simple
Contact an Experienced Long Island Divorce Attorney to Ensure You Protect Your Assets
Because New York is an equitable distribution state, there are many factors at play that will affect how property is divided at divorce. An experienced attorney can assist you in determining how your or your spouse’s pension will be affected by your divorce. The attorneys at the Office of Hornberger Verbitsky, P.C. can answer any questions you might have about how your assets, including pensions and retirement plans, may be split upon your divorce in New York. Our divorce attorneys are experienced in all types of divorce and family law matters in Nassau County, Suffolk County, and the five boroughs of New York City, and consistently achieve positive outcomes for our clients. Contact our office today at 631-923-1910, or fill out the short form on this page to set up your free consultation.
Download our Free New York Divorce Guide
Our 41-page “Guide to New York Divorce: What You Need to Know Before Hiring a Divorce Lawyer in New York” written by an experienced family law lawyer, Long Island’s Robert E. Hornberger, Esq., provides you with real information on the divorce process and the laws it rests upon in the state of New York. This book will help give you a solid foundation upon which you can begin the process of making your family’s, life better. Download your Free Guide to New York Divorce here.