Is My Pension Considered an Asset in A Divorce?

The answer is Yes, as a pension is considered an asset in a divorce.

According to New York State law, pension benefits and retirement benefits earned during a marriage are considered marital property and subject to distribution in the event of a divorce. This means that each spouse is entitled to a share of the other spouse’s pension benefits and retirement benefits.

In general terms, there are two types of pension/retirement benefits, they are:

Defined Benefit Pensions: Typically, this the type of benefit an employee would receive from working for the government or public entity. For example, teachers, police officers, New York City firefighters, other school employees are typically entitled to a defined benefit pension. Some large companies also may offer a defined benefit pension. A defined benefit means that the benefit formula that an employee is entitled to is defined and known in advance. It also typically means that the employer funds typically funds 100% of the amount that the employee is entitled to.

Defined Contribution Plans: In this type of plan, both the employee and employer will make contributions to an account in which the employee is entitled to upon the employee’s retirement or in leaving the company. Typically, the accounts are invested in the stock market or sometimes in bonds.

Regardless, of which type of pension/retirement plan a spouse has, the other spouse is entitled to the portion of that plan that was earned during the marriage. Here, is how that works:

Assume the following facts: If the spouse was earning pension benefits for 4 years prior to the marriage, then you were married for 15 years before the commencement of the divorce, the spouse continued to earn pension benefits after the commencement of the divorce for another 6 years. So in total, the souse worked earned pension benefits for 25 years (4 + 15 + 6), and during that time earned 15 years while married.

In this example, the formula (which is called the Majuskas Formula), states:

50% X Number of years earned during marriage
———————————————— (divided by)
Total Number or years earning pension benefits

So it would be 50% X 15/25 or 30% of the spouse’s pension benefits.

In virtually all divorce cases, a third-party expert company will be hired to determine the exact amount of pension benefits each spouse is entitled to.

If you have questions regarding your rights to pension benefits or retirement benefits during a divorce, contact David Badanes and the Badanes Law Office, P.C. David Badanes and the Badanes Law Office’s phone number is 631-239-1702, email at or us on Facebook to get important legal news, tips and articles:

How Does a Divorce Effect Social Security Benefits?

Social Security benefits are available to most American workers. For married couples, even if only one spouse is eligible for Social Security benefits, the other spouse may also receive benefits based on the marriage. When couple’s divorce, in order to collect Social Security benefits from your former spouse, you need to meet the following requirements:

  • Your marriage must have been for at least 10 years
  • You must be at least 62 years of age (at the time that you want to start collecting your benefits)
  • You need to remain unmarried — however, if you do re-marry, then you may still be able to receive benefits from your first spouse
  • Your own Social Security benefits must be less than the amount of benefits you would receive from your ex-spouse

If you do qualify for Social Security benefits, the benefits you receive do not reduce the amount of Social Security benefits paid to your former spouse. Therefore, getting divorced does not reduce your benefits, it only allows your former spouse to collect Social Security benefits as well.

You should also know, that if your ex-spouse qualifies for their Social Security benefits, but, has not applied for them, that you can still receive your Social Security benefits, based on that ex-spouse (provided that you have been divorced for at least two years).
Finally, it is important to know that Social Security benefits are subject to Federal Law and are not subject to change based on changes in New York law.

If you are contemplating divorce and you are close to being married for 10 years, you may want to delay filing for divorce until you are married for more than 10 years. This way you may be eligible to receive Social Security benefits from your former spouse.

If you are thinking of getting a divorce, you need an experienced Matrimonial and Divorce Attorney to guide you through the process. Call David Badanes and the Badanes Law Office today at 631-239-1702, email at or visit our web site: The Badanes Law Office has offices in Northport and Uniondale.

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Your Power Of Attorney And Your Divorce

Prior to any marital difficulties, you may have signed a Power of Attorney and named your spouse as your agent in your Power of Attorney. In almost all situations, if you are getting divorced, you will want to revoke the Power of Attorney.

To revoke your Power of Attorney, you simply just have to enter into a new Power of Attorney and name a new person as your agent.

It is important to note that if you do not revoke your Power of Attorney, then your spouse is still your agent – even if you are going through a divorce.

When you are getting divorce, it is important to hire an attorney who knows about both divorces and Power(s) of Attorney. David Badanes and the Badanes Law Office, P.C. have the knowledge to help you. Contact David Badanes and the Badanes Law Office at 631-239-1702, email at or visit our website: The Badanes Law Office has offices in Suffolk County (Northport) and in Nassau County (Uniondale, across from the Nassau Coliseum).

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How To Handle An Ex-Spouse That Does Not Abide By The Divorce Agreement

A divorce agreement issued by the court is a legally binding contract. As such, if either party refuses to follow the divorce agreement, you have a few options on how to handle this situation.

  1. You can have your attorney (or you can do this yourself), send a letter outlining exactly how your ex-spouse is not following the divorce agreement (in other words, how they are in breach of the agreement). Depending on what your divorce agreement states, you may have to give your ex-spouse a certain number of days to rectify their breach.
  2. If your ex-spouse ignores your letter or does not fully rectify their breach, then you will have to file a Motion or an Order to Show Cause to the Court. The Motion (or Order to Show Cause) will state that your ex-spouse is in breach and what you are seeking. In many situations, you may be able to request your attorney’s fees.
  3. You may also ask the Court for a finding of “contempt” and that your ex-spouse should be incarcerated. If your ex-spouse is found to willfully breach the divorce agreement, and the Court believes the breach is serious enough, they could order that your ex-spouse be incarcerated.

In general terms, these are the most common examples of how an ex-spouse breaches a divorce agreement:

  • Failure to pay Child Support: The Court treats the failure to pay child support very seriously. If your ex-spouse is not paying you child support, you should immediately go to court to seek relief.
  • Failure to pay Spousal Maintenance (alimony): Similar to not paying child support, the Court will treat this very seriously.
  • Failure to follow the parenting time arrangements: Unlike the failure to pay child support or spousal maintenance, here the Court will be more lenient.
  • It is important to note that just because your ex-spouse doesn’t pay child support, this does not mean that you can prevent your child from visiting your ex-spouse.

Divorce can present many challenges, even after the divorce is finalized. David Badanes, Esq. and the Badanes Law Office, P.C. can help you and will answer all your questions about the divorce process. David Badanes and the Badanes Law Office, P.C. can be contacted at 631-239-1702, email at or visit our web site: The Badanes Law Office, P.C. has offices in Northport, Suffolk County and in Uniondale, Nassau County.

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