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Is A Disability Pension Something That Gets Divided In A Divorce?

Q. Verna O. of New Jersey asks: "I was divorced five years ago and am receiving a Disability Pension from my plan at PSEG. Is a disability Pension something that gets divided in a divorce?"

A. Evan E., from the QDRO Department of Pension Evaluators®at Troyan Inc.® answers: "In jurisdictions in which a disability pension is not marital property, it may be possible to determine that the disability pension has two components: a pension for service and compensation for the disability.

Thus, if the "pure" or healthy portion of pension can be split out, it can be valued and considered marital property. For deferred distribution, otherwise known as division of Retirement Accounts after divorce, a Domestic Relations Order, aka a QDRO, may be designed to pay a portion of the non-disability component of the pension to an Alternate Payee.

The State of New Jersey, and here at Pension Evaluators® at Troyan Inc.,® follows the Marx Benefit Formula for Retirement Benefit and Sterneksy Decisions as it pertains to Disability; see - Marx v. Marx, 265 N.J. Super. 418 (1993) and Sternesky v. Salcie-Sternesky, 396 N.J. Super. 290 (App. Div. 2007)

Under Disability: Should the Member become disabled and receive a disability benefit, the Former Spouse shall be awarded the benefit, determined under the Sternesky decision; (Sternesky v. Salcie-Sternesky, 396 N.J. Super. 290 (App. Div. 2007)) of a share of the Member's normal retirement benefit at the time which the Member commences disability benefit. Defined as 50% of the marital share of the benefit to be determined at the Member's date of disablement by the Plan, (Sternesky v. Salcie-Sternesky, 396 N.J. Super. 290 (App. Div. 2007)."

Evan Edelstein

QDRO Writer

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