It is well established in New York that in the determination of parties' rights in a divorce action, marital property is “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.” DRL 236[B][1][c]. Accordingly, pension rights earned during a marriage “are properly considered marital property subject to equitable distribution.” Olivo v. Olivo, 82 N.Y.2d 202, 207 (1993); Majauskas v. Majauskas, 61 N.Y.2d 481; Dolan v. Dolan, 78 N.Y.2d 463, 464-65; Berardi v. Berardi, 54 A.D.3d 982, 985.

In most instances, there are two basic methods available for the distribution of pension benefits—either the non-titled spouse presently would receive a lump sum discounted for present value, or a future periodic distributive award premised upon his or her share of the benefits which the titled (employee) spouse will receive in the future. Bianco v. Bianco, 21 A.D.3d 918 (2d Dept., 2005) (citing Majauskas, supra).

In the latter instance, such a distributive award would be memorialized in a qualified domestic relations order (QDRO). See generally Mesholam v. Mesholam, 11 N.Y.3d 24 (2008); Kazel v. Kazel, 3 N.Y.3d 331 (N.Y. 2004).¹