Equitable Distribution Information For A Public Pension Fund
- Many private plans, subject to the Employees’ Retirement Income Security Act (ERISA), are required to accept Qualified Domestic Relations Orders (QDRO) to equitably divide a pension should a pensioner get divorced. As a governmental plan, the Police Pension Fund is not subject to these provisions of ERISA and therefore does not accept QDROs. The Fund will, however, accept an Approved Domestic Relations Order (ADRO) that will equitably divide a participant’s pension under the terms described below. A sample DRO is attached to this fact sheet.
- The New York State Court of Appeals in Majauskas v. Majauskas (61 N.Y.2d. 481, 474 N.Y.S.2d 699) concluded that the amount of money contributed to a public retirement system during the years of a marriage is marital property. A public pension fund will thus honor an Approved Domestic Relations Order (ADRO) issued by a court of competent jurisdiction in the state of New York. This is not a QDRO.
- The DRO should contain explicit directions as to how the alternate payee is to receive payment. If the Police Pension Fund is to pay the former spouse directly, this information should be present in the DRO.
- The former spouse of the participant will NOT be considered a participant of the Police Pension Fund. This is because the Police Pension Fund is a common fund, with no participant having a separate account. A member's right to a pension creates a legal relationship statutorily between the Fund and the participant. There is no such legal relationship between the Fund and the alternate payee.
- While the Police Pension Fund will honor an approved
DRO, the alternate payee will not begin collecting payment until the
participant actually retires. Pension payments to the alternate payee will
cease upon the participant’s death, unless the participant has selected a
survivor option for the benefit of the alternate payee. The Variable
Supplement Fund (VSF), however, ceases upon the participant’s death.
- The New York State Court of Appeals in DeLuca v. DeLuca, 97 N.Y.2d 139, determined that the VSF is marital property. However, unless a DRO makes an explicit statement to include the Variable Supplement Fund (VSF), the Police Pension Fund will not assume that this benefit is part of the distribution because statute and case law mandate that each Fund and the alternate payee’s share of the benefit be stated with particularity.
- A draft of a DRO should be sent to the Police Pension Fund for review. Once the Fund has approved the DRO, it may be submitted formally to a court of competent jurisdiction in the state of New York. The Fund will also accept out of state orders that have been registered in New York pursuant to CPLR §5402; in lieu of such registration, the parties may choose to sign a consent to New York jurisdiction form available through the Fund.
- The New York City Police Pension Fund is only allowed to pay retirement benefits as directed by law. It is the participant's or alternate payee’s responsibility to file the Court-certified DRO with the Fund. Failure to do so may result in the alternate payee losing benefits.
- Information regarding retirement benefits, options and the Variable Supplement Funds is public information and is in no way confidential. Such information may be found in the Fund's Summary Plan Description or on the Police Pension Fund’s Web site. Confidential information regarding a specific participant’s pension information will not be released to anyone, except the participant, without a court order.
DISCLAIMER: The information provided herein is not intended to be legal advice and should not be substituted for the advice of or in lieu of consultation with a matrimonial attorney. The information is based on the current understanding of the law by the Fund; laws, however, are subject to change, therefore proper legal consultation is strongly recommended. For any additional information or questions regarding Domestic Relations Orders for FAQs, please contact the Fund directly.