Majauskas v. Majauskas
| Decision Date | 23 July 1981 |
| Parties | Henry MAJAUSKAS, Plaintiff, v. Sandra MAJAUSKAS, Defendant. |
| Court | New York Supreme Court |
The Rochester Legal Clinic by Robert E. Kelly, Jr., Rochester, of counsel, for plaintiff.
Friedman & Greenfield, P. C. by Mark A. Drexler, Rochester, of counsel, for defendant.
DECISION
The above action for divorce was commenced by the plaintiff-husband on the grounds of cruel and inhuman treatment in August of 1980. The defendant asserted an answer and a counter-claim for divorce on the grounds of cruel and inhuman treatment and a second counter-claim on the grounds of abandonment. The case was reached for a non-jury trial before this Court in June of 1981 at which time the plaintiff, upon the advise of his attorney, agreed to withdraw his cause of action for divorce and permit the defendant to obtain a divorce against him on the grounds set forth in her counter-claim without opposition.
The Court proceeded to hear evidence from the defendant and granted the divorce action of the defendant against the plaintiff, together with certain other specific relief.
The Court now addresses itself to the issue of the pension plan of the plaintiff. The plaintiff has been a policeman for the City of Rochester for approximately 11 years. Since February 20, 1973 he has been a participant in the New York State Pension Plan (Retirement and Social Security Law, § 384-d). He can retire at half pay at the earliest on February 20, 1993. A member with 10 or more years' service credit, including at least five years as a member of the retirement system, has vested rights. The Court finds that the plaintiff has a vested but as yet unmatured right to a pension from the State Retirement System. The defendant introduced actuarial evidence from the firm of Smith, Everett & Associates, Inc. that the present value of the plaintiff's accrued benefits under his pension plan is $31,025.29. The plaintiff has been a participant in this pension plan for a total of 99 months. The parties were married to each other for 90 of those 99 months. Therefore, the pro-rata present value of the pension plan from the 90 months of the marriage is the sum of $28,204.81.
Since the trial of this case, but before this decision was rendered, the Supreme Court of the United States rendered a decision in the case of Richard John McCarty v. Patricia Ann McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981); The Family Law Reporter, Vol. 7, No. 34 (June 30, 1981). In the McCarty case, the Supreme Court decided that upon dissolution of a marriage, Federal Law precludes a state court from dividing military non-disability retired pay, pursuant to the State of California's community property laws. That court noted that military retired pay differs in some significant respects from a typical pension or retirement plan. The retired officer remains a member of the army. In addition, he may forfeit all or part of his retirement pay if he engages in certain activities. Finally, the retired officer remains subject to recall to active duty by the Secretary of the Army at any time. The Court feels that those facts make the McCarty case distinguishable from the facts of the instant case where no Federal Statute or question is involved.
This Court holds that the plaintiff's pension is marital property to be considered in determining the equitable distribution of the parties' assets for the following reasons:
DRL § 236(b), (1), (c) The term "marital property" shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement pursuant to subdivision three of this part. Marital property shall not include separate property as hereinafter defined.
DRL § 236(b), (5), (c) Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.
DRL § 236(b), (5), (d) In determining an equitable disposition of the property under paragraph c, the Court shall consider: * * *
(4) The loss of inheritance and pension rights upon dissolution of marriage as of the date of dissolution (emphasis added).
The Court, in deciding the wife's share of the husband's New York State Retirement Fund, will consider: 1) the length of the marriage between the parties; 2) the duration of the husband's employment; and 3) whether or not the husband's pension benefits are vested. Although the "Equitable Distribution Law" became effective on July 19, 1980, this Court rejects the plaintiff's contention that any division of the husband's pension rights should only be for the period commencing after July 19, 1980.
The distribution of the pension funds is a recent phenomenon in New York State Domestic Relations Law. Thus, New York State has not developed a body of case law to guide the courts in the treatment of pension plan benefits. Although the Equitable Distribution Statute itself is very specific in enumerating the various factors which the courts must consider in distributing marital property, the statute offers no direction or guidelines in interpreting or applying any specific factor. In view of these facts, the Court in rendering its decision, has analyzed and considered cases from other equitable distribution jurisdictions.
The bulk of authority from equitable distribution jurisdictions holds that vested, even though unmatured, retirement or pension benefits, based on age and/or length of service constitutes community property. Such community property is subject to division between the spouses upon the dissolution of the marriage. (See: Neal v. Neal, 116 Ariz. 590, 570 P.2d 758 (1977); Re-marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976); Pension Rights--Division on Dissolution, 94 A.L.R.3rd 176.) A New Jersey Court has held that ...
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