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How many years must you be married in New York State until your wife is entitled to go after your pension?

Carmel, NY |
Filed under: Divorce

I have been married to her for 8 years. I get a pension. She lost hers.

Attorney Answers 3


Your wife is entitled to "go after" your pension as long as pension benefits were incurred during the marriage. However, it's a three step process:
(1) determine if pension benefits were accrued during the marriage
(2) value the accrual of those benefits
(3) determine what share, if any, she is entitled to.

Obviously, in a very short marriage it is unlikely that much in the way of pension benefits would have accrued.

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Your spouse begins accruing an interest in your pension as soon as you are married so long as you are at the job earning a New York State Pension. I am attaching the language taken directly from the NYS Comptroller's web site. Please keep in mind that a spouse's interest in a pension can be negotiated.

"According to New York State law, pension benefits earned during a marriage are marital assets subject to equitable distribution in the event of a divorce. The ex-spouse is entitled to a share of the Participant’s retirement benefit. A Participant and ex-spouse may establish a retirement benefit distribution that is satisfactory. The most commonly used equitable distribution formula for a public pension was established by the State Court of Appeals in Majauskas v. Majauskas. This formula provides an ex-spouse with one-half of that part of a Participant’s pension earned during the marriage.

The Majauskas Formula
50% × years of service credit accrued during marriage (numerator)
÷ total service credit at time of retirement (denominator)

For example, if the Participant accrued 15 years of service while married, and retires with 30 years of total service, the ex-spouse’s share will be 25 percent of the pension (50 percent × 15/30). The Majauskas formula may be modified by the court, or by agreement between the Participant and ex-spouse. The Retirement System does not require use of this formula. There are other ways to distribute your pension benefit."

THESE COMMENTS ARE NOT LEGAL ADVICE. They are provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction. Answering this question does not create an attorney-client relationship or otherwise require further consultation.

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She can seek a share of whatever portion of your pension was earned during the marriage.

Consult with a competent attorney experienced in this area. Many (like me) offer a free initial consultation.

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