How Will My Pension Be Divided in a Divorce?

Pensions and 401(k)s are different retirement animals.  A pension is what they call a defined benefit plan and a 401(k) is what’s called a defined contribution.  Those are terms that IRS has given them.  They actually behave differently in the way that the courts will divide them.  When it comes to a pension, the courts will look at the number of months or years that you have participated in the plan during the marriage as a fraction of the total number of months, or credits if you will, that you have participated in the plan from the time you started in the employment, even if that’s before the marriage, all the way up to the time of your retirement, again, even if that’s after the date of the commencement of the action for divorce.

So if you’re looking at it in terms of what the marital part of your pension is that gets split with your wife or husband, there’s this fraction, and it’s called the Majauskas fraction, named after the Court of Appeals case in New York that came up with this formula.  As a numerator, the number of months or credits that you earned a pension interest from the time of the date of your marriage all the way to the date of the commencement of the action for divorce, and take that numerator and they divide it by the larger — usually larger — denominator, which is the total number of months, or again, if it’s private union pension, it could be credits, that have accumulated from the time you started at that plan, even prior to the date of marriage, to the time to the date of retirement, and that fraction, less than one, is then multiplied by the equitable distribution share.  That’s usually 50 percent.  So we multiply 50 percent times this Majauskas fraction times the monthly pension benefit, and that’s the amount that your spouse would receive as a part of your pension in a defined benefit, standard pension, monthly payment type of scenario.

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