In New York State, pensions and retirement benefits earned during the marriage may be marital property and can be divided when a marriage ends. Divorce can affect your pension and other retirement benefits in the following ways:
- Your ex-spouse may be entitled to a portion of your pension.
- You may be required to name your ex-spouse as the beneficiary of any death benefit.
- You may be required to choose a pension payment option that provides a continuing benefit to your ex-spouse when you die.
- Your ex-spouse may be entitled to a portion of your cost-of-living adjustment (COLA).
How Your Pension Can Be Divided in a Divorce
The most common method for dividing pension benefits is known as the Majauskas Formula, which gets its name from a case decided by the State Court of Appeals. This formula gives your ex-spouse one-half of the portion of your pension earned during the marriage.
How the Majauskas Formula Works
Example of the Majauskas Formula
Other Ways to Divide Pension Benefits
The Majauskas formula is not the only way to divide pension benefits. Other ways include using:
- A hypothetical retirement benefit. NYSLRS can calculate a hypothetical pension using your final average earnings and service credit as of a specific date and then determine the ex-spouse’s share based on the terms of the divorce.
- A flat percentage. Your ex-spouse can receive a percentage of your pension other than the percentage derived from the Majauskas formula.
- A flat dollar amount. This option is commonly used if you retired and already receive monthly pension payments.
Formalizing the Division of Your Pension After a Divorce
Once you finalize the terms of your divorce, a judge issues a final judgment of divorce. If your ex-spouse will receive a share of your pension and other retirement benefits, a Domestic Relations Order (DRO) is needed. A DRO is a court order specifying how benefits should be divided.
NYSLRS must have an approved DRO on file to make pension payments to an ex-spouse—we cannot pay an ex-spouse based solely on a judgment of divorce or settlement agreement. It’s important to complete and file the DRO with NYSLRS well before the your retirement date to avoid changes or delays in payments. Questions about the consequences of not filing a DRO on time should be addressed to an attorney.
If your ex-spouse is not awarded a portion of your pension benefits, NYSLRS does not need a DRO.
Drafting and Filing a DRO
Draft a DRO. NYSLRS offers an online DRO template, which was developed with guidance from NYSLRS’ legal counsel. It generates a customized DRO based on the information entered about the terms of the divorce. While its use is not required, DROs prepared using the NYSLRS template receive priority review.
Get Your DRO Approved. A Supreme Court judge must sign the DRO and enter it as an official court document.
Submit Your DRO to NYSLRS. NYSLRS requires a certified copy of the signed DRO as well as proof of divorce, such as a copy of the judgment of divorce. NYSLRS legal staff will review the DRO and determine whether it complies with New York State Retirement and Social Security Law and applicable policies and procedures.
All Parties Notified. NYSLRS will send a letter to all parties notifying them whether the DRO has been accepted or rejected. If the DRO is rejected, the letter will explain why. The DRO must be amended, approved and resubmitted to NYSLRS.
For More Information
For more information about how your pension may be affected and for additional guidance on DROs, visit our Divorce and Your Benefits webpage. Also, read our blog post about how divorce may affect your other NYSLRS benefits.
If there is a DRO and the ex-spouse is entitled to a part of my pension .IS the member able to leave his part of his pension to a beneficiary
Whether a member can leave a portion of their pension or a death benefit to a beneficiary who is not their ex-spouse depends on the terms of their Domestic Relations Order (DRO). Some DROs require the member to elect a pension payment option that provides a continuing benefit to their ex-spouse if the member dies before them, or name them as a death benefit beneficiary.
If you have a DRO on file with NYSLRS, you or your attorney can email our Matrimonial Bureau at dro@osc.ny.gov with questions.
My ex spouse is in such large child support arrears would that affect his payment as an ex spuse because of the arrears?
An Income Withholding Order must be served on NYSLRS after a member retires for child support to be deducted from their pension payment.
For more information about DROs, please message our customer service representatives using our secure contact form. Filling out the secure form allows them to safely contact you about your personal account information.
If the DRO is not part of the Settlement Agreement i.e. as the Settlement states that the ex-spouse has no claim to pension benefits, and the divorce precedes the retirement, with the child being the designated beneficiary, can the ex-spouse still file and win a claim? Are there any loopholes?
NYSLRS cannot provide legal advice; you may wish to consult an attorney.
NYSLRS must have an approved Domestic Relations Order (DRO) on file, as well as proof of divorce, to make pension payments to an ex-spouse of a member.
For questions about a DRO, you or your attorney can email our Matrimonial Bureau at dro@osc.ny.gov.
Is the ex spouse portion of the awarded pension be based of the salary at the time of the divorce or the salary of his 3 highest yrs work after the divorce?
There are many ways a pension may be divided, some of which are listed in the blog post. Whatever the division, it must be stated in the form of a Domestic Relations Order (DRO), a legal document issued by the same court that issued the judgment of divorce. The DRO gives NYSLRS specific instructions on how benefits should be divided.
NYSLRS must have an approved DRO on file, and proof of divorce, to make direct pension payments to an ex-spouse of a member.
If an ex-spouse is already receiving a pension through the retirement system, would he/she still be entitled to a portion of the working spouse when he/she retires? And if so, would the same rules apply?
The New York State Court of Appeals determined that NYSLRS benefits acquired during a marriage may be considered marital property and can be subject to equitable distribution upon a member’s divorce. When a NYSLRS member is divorced, a court may determine that the ex-spouse is entitled to a share in the member’s retirement benefits. If you and your ex-spouse will each collect (or already collecting) your own pension from NYSLRS, any division of retirement benefits must be stated in the form of a Domestic Relations Order (DRO). A DRO gives NYSLRS specific instructions on how benefits should be divided. For more information, please visit our Divorce and Your Benefits webpage.
Does this information regarding “spouse” apply to established domestic partnerships too, or only legal marriages?
The New York State Court of Appeals has determined that retirement benefits may be considered marital property and can be divided between the Participant (NYSLRS member) and their ex-spouse when the marriage ends. It does not apply to domestic partnerships.
In NYS when an ex-spouse who receives pension benefits predeceases their former spouse, how does that ex-spouse receive those now former benefits back from the now departed ex-spouse?
1- Could they deed a their former ex spouse’s pension payments to someone else would they?
2- Would NYSLRS need a death certificate, affidavit so the former spouse to reverse the pension payments?
3- Tax question. Are the pension payments given to the ex-spouse taxed?
If an ex-spouse dies after a member retires, NYSLRS will stop payments to the ex-spouse after receiving a copy of the certified death certificate. The ex-spouse’s share of the pension will then be paid to the member, retroactive to the date NYSLRS is notified of the ex-spouse’s death.
You can mail the death certificate (we suggest Certified Mail with Return Receipt service) to:
NYSLRS
110 State St
Albany, NY 12244-0001
Generally, according to the Internal Revenue Code, equitable distribution payments to the ex-spouse are taxable. For specific tax questions, you should consult a financial adviser.
If you are married, must your spouse be your desinated beneficiary for your
PENSION payment options? Or can it be one of you children? Grandchildren?
When you apply for retirement, you can choose a pension payment option which provides a lifetime benefit for a single beneficiary or a limited benefit for multiple beneficiaries. You do not need to designate your spouse as your beneficiary.
In case of divorce, a court may require you to choose a pension payment option that provides a continuing benefit to your ex-spouse when you die.
For questions about your specific situation, please call our customer service representatives at 866-805-0990. Press 2, then follow the prompts. You can also message them using our secure contact form. Filling out the secure form allows them to safely contact you about your personal account information.
My husband retired in 2020 and chose the Spouse Pop Up Joint Allowance option and has been receiving monthly benefits since then. At the time he completed his paperwork he was informed that once he chose me as his beneficiary it was permanent and could never be changed even with a divorce. Now that we may actually be heading for divorce he tells me that has changed and he is removing me altogether, with a court ourder if he has to, but all the information I am finding says that he still is not allowed to do that and there is no legal way to have me removed. Can you please advise?
For general information about how divorce may affect your husband’s NYSLRS benefits or you as a beneficiary, you can visit our Divorce and Your Benefits page.
However, NYSLRS cannot provide legal advice; you may wish to consult an attorney.
Would a spouse be entitled to any part of a disability pension ? Would a spouse be entitled to any portion of social security benefits?
NYSLRS does not decide if a particular disability benefit constitutes marital or separate property in a matrimonial action. Whether a member’s disability retirement benefit is subject to equitable distribution is an issue for the Court.
For more information, visit the Disability Retirement section of our Divorce and Your Benefits publication.