Legal Question in Family Law in New York

inequitable distribution due majurskas precedent

My wife and I are divorcing after a 30+ year marrige. The requirements established by the QDRO of the retirement plans seems inequitable. My retirement plan is 401K based with the proceeds having been alloted over a 20 year period from salary withdrawals in stock and bond portfolios and an IRA rollover due the company termination of a funded plan. Her retirement plan is annuity based as part of the Tier 3 State Teachers retirement system within which she makes no contribution. As per the QDRO, I am required to give her approx 1/3 of the 401K funds and an IRA while she has no requirement to provide for a share of her funds upon retirement due the schedule of constant loading to the 401K versus the ''back end'' loading of the teachers plan. It seems inequitable that with a 401K based plan if you start with say $500,000 and spend $50,000 yearly then at the end of 10 years you have zero (assuming no growth). With the NYS Teachers plan you end up with perhaps $60-70k over the rest of the life of the participant. There is no end date to the funds. I am not convinced that Marjuskas applies to the situation. Any thoughts?


Asked on 5/12/04, 12:08 am

1 Answer from Attorneys
Phroska L. McAlister PHROSKA LEAKE McALISTER

Re: inequitable distribution due majurskas precedent

Notwithstanding the MAJ. formula that may be applied to your pension, under equitable distribution, you should still be entitled to receive Your equitable share and interest in your wife's retirement or investment income, under a different formula.

But, You should (or should have presented) present your argument/ with the numbers, to your lawyer and to the Court, for consideration.

You should also have an expert testify after a prepared forensic report, (Ordered by the Court), to explain in detail the in-equity of any proposed distribution formula.

GOOD LUCK,

PHROSKA L. McALISTER,ESQ.

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Answered on 5/12/04, 3:41 pm


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