Can I Limit My QDRO Award to My Former Spouse to the Marital Portion of the Non-Disability Pension Only?

Betsy O. of Hauppauge, NY asks, "Can I limit my QDRO award to my former spouse to the Marital Portion of the non-disability pension only?"

{Sub:BusinessName} answers, "Yes, your QDRO experts here at the firm would prepare calculations as to set forth the hypothetical healthy component of the disability benefit. Note that while there is no case law determining under this particular statute whether it is completely separate property or mixed, there is a NYC Admin Code which mirrors the state accidental disability retirement. While there are almost no reported cases on the state law and divorce, there are a many cases dealing with the NYC Admin Code. There is a Second Department Case on point and cited numerous times: "[t]o the extent that a disability pension constitutes compensation for personal injuries, that compensation is separate property which is not subject to equitable distribution" (Mylett v Mylett, 163 AD2d 463, 464-465, 558 NYS2d 160 [1990]; see Link v Link, 304 AD2d 800, 801, 759 NYS2d 133 [2003]; Beshara v Beshara, 281 AD2d 577, 578, 722 NYS2d 573 [2001]; see also Domestic Relations Law § 236 [B] [5] [b]). Such is the case with an accident disability pension under the Administrative Code of the City of New York § 13-258 which is based on physical or mental incapacity proximately resulting from city service, not length of service (see Dolan v Dolan, 78 NY2d at 467; McNelis v McNelis, 6 AD3d 673, 775 NYS2d 542 [2004]; West v West, 115 AD2d 601, 602, 496 NYS2d 263 [1985])." "there is no provision for entitlement to accident disability benefits, which represent compensation for personal injuries and remain the defendant's separate property not subject to equitable distribution" Berardi v. Berardi, 2008 NY Slip Op 7203, ¶ 3, 54 A.D.3d 982, 985, 865 N.Y.S.2d 245, 248 (App. Div. 2nd Dept.)"

{Sub:BusinessName} offers expert QDRO outsourcing services to divorce attorneys and mediators, as well as retirement plan administrators.
Divorce attorneys/mediators – You can rely on {Sub:BusinessName} to draft QDRO documents correctly and promptly for your clients, and obtain pre-approval by the plan administrator. We will be pleased to work with you and your law office, or directly with your clients (after the divorce is finalized by your offices) in the QDRO process.

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Just click here to begin the process to begin the application process forms on this site (or direct your client to do so), along with prepayment of our fee, either by check or credit card (online). For more information, call to speak with our QDRO experts at {F:P:Sub:Phone} and reference the state for your Divorce matter for discussions.