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Can the divorce be modified if retirement wasn’t addressed?

October 11, 2017 Our Blog

Whether you have been divorced for one month or 15 years, a modification to your divorce decree can be performed to reflect your present-day situation. And, yes, you may petition a New York court to address the issue of retirement benefits in your divorce decree. It is a straightforward process. If you and your ex-spouse have conflicting views regarding the issue, then proceed with filing for a modification. Attend the scheduled hearing and present your evidence. Of course, it would be in your best interest to hire an attorney who is well-versed on the subject. You need someone who will meticulously review the details of your divorce and explain to you how and why you are at this point. Clearly, due diligence was not performed during the divorce.

New York law views pensions, which are also known as retirement benefits, as marital property. This means that since the retirement benefits were earned during the course of the marriage, then they are considered to be marital assets. As such, they need to be divided fairly between the ex-spouses.

Typically, such a division is achieved by employing the Majauskas Formula. With this formula, the ex-spouse is actually entitled to one-half of the employee’s retirement benefits earned during the marriage. The Majauskas Formula is calculated as follows: 50% * (service years during marriage/total service years at retirement).

For example, if the employee accumulated 25 years of service during the marriage, and he retired with 40 years of total service, then the ex-spouse will receive 31 percent of the retirement benefits (50% * (25/40)).

It should be noted that usage of the Majauskas Formula is not mandatory. It can be changed by the court. Or, the ex-spouses can agree to change it. Also, the New York State and Local Retirement System (NYSLRS) does not mandate use of this formula. Plus, equitable distribution of retirement benefits can be achieved in other ways. They include the following:

• By establishing a flat dollar amount. The ex-spouse will receive a predetermined amount. This amount will not change. It will not affect the employee’s salary or cost-of-living adjustment.

• By changing the original Majauskas Formula. The formula can be tweaked to the liking of the ex-spouses.

• By calculating an amount as of a specified date. The NYSLRS can calculate a fictional retirement benefit whereby the ex-spouse’s share is tied to a specific date. The calculation involves the employee’s final average salary and service years on a specific date. Generally, the target date is the date the divorce proceedings began. If the employee’s retirement benefit suffers any pension issues or age reductions, then the ex-spouse’s benefit will suffer the same. However, the employee’s salary and service increases earned after the divorce will be excluded from the ex-spouse’s benefit calculation. This action places the ex-spouse at a disadvantage. The ex-spouse will receive a smaller percentage of the employee’s actual retirement benefit.

If the desire is to restrict the ex-spouse’s retirement benefit to the employee’s salary and service levels in place at the start date of the divorce proceedings, then this should be explicitly conveyed in the Domestic Relations Order (DRO). A DRO is court decree whereby the ex-spouse receives a share of the employee’s pension upon the employee’s retirement. A DRO is a set of directives that details how the retirement benefit is to be divided. It does not leave any room for speculation because it explicitly states how the benefit will be calculated, when it will be paid and how it will be paid. A DRO should be drafted by someone who is quite familiar with the subject. And, a DRO should be in place before the divorce is completed.

How Do I Get Certified Copies of My Divorce Papers?

There are special times when you will need to produce certified copies of your divorce papers. You may have informational documents that validate your divorce, but they are not certified if they do not have a raised seal on them. Certified copies have a raised seal on them, and they count as identity-proving documents. You may need certified copies of your divorce certificate for remarriage, proof of why you had a name change, benefit collection and various other reasons. The following are some ways that you can obtain certified copies of your divorce papers:

Visit the Vital Statistics Office

You can visit the vital statistics office in your state personally. Such an office may be open between 8 a.m. and 4 p.m. or similar hours. You will have to bring your identification with you as well as some information about yourself, your spouse and the date and location in which you were married. The office may charge you a fee for the document. You can usually pay for such a document with cash, check or credit cards. Ask about which payment types they accept before you set out to the office, however. You want to make sure that you bring the right payment type. In most cases, you can receive copies of your divorce certificate that day.

Order Them Online

There may be a time when you have to order divorce documents online because you live in a different state or county from where you can have easy access to them. Several reputable sites exist for the sole purpose of connecting you with important documents. Vital Check is a reputable company that you can use to order the documents. The company provides customers with copies of divorce records, marriage records, birth and death certificates. The order process begins by selecting the type of document you wish to receive. Secondly, you want to choose the state that holds your records. The site will then take you to choose a city.

You will have to enter the date of the divorce after you choose a city. The system will then look for the records that you are requesting. You will receive a notice if the system cannot locate the records. You will be directed to a secure payment form if the system can find your records. You will need to allow several weeks for processing. You may be able to pay an additional fee to get the records fast. Always make sure that you are ordering from a secure page and that the company is authorized by the agency from which you desire to receive the records.

Identification for Divorce Records

Most places that offer personal divorce records will want you to prove who you are by providing a valid form of identification. Some of the documents that you can use to prove your identity are documents such as a driver’s license, social security card, passport, health insurance, utility bill, lease or bank statement. The identification is to ensure that they are giving the item to an authorized person.

To prevent stress and confusion, you could request that your attorney grab hold of the documents for you. All you have to do is give your attorney written consent to gather the documents. The attorney will most likely be able to get the documents for you much faster than you would have been able to get them by yourself. The method that you use to get certified divorce papers depends on your intended use for them and how fast you need to have them in your hand.

If you need help with this, we encourage you to contact one of our NYC divorce attorneys today, for a risk free consultation.



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