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The Appellate Division of the Second
Department in Pulaski (804 N.Y.S. 2d 404) has presented a
serious drafting trap to attorneys representing New York
City Police Officers and Firefighters. I do not think
Pulaski represents the last word on the issues presented
therein. Nevertheless, the inferences that can be drawn from
this decision mandate caution when drafting the terms of a
Domestic Relations Order regarding a Police Officer 's or
Firefighter pension plan.
As part of the precautions inherent in this
article the practitioner will observe that for both of these
occupations the probability of disablement while employed is
substantially greater than the probability of death while
employed. For this reason the issue of occupational disablement
and its impact on the division of pension benefits is of concern
to respective counsel in this type of case. Moreover, the
potential for a post-divorce adverse experience is greater for
the attorney representing the Police Officer of Firefighter.
Generally, at the time of divorce the
titled-spouse is working and healthy. Hence, there is a danger
that his or her potential for disablement and its impact on the
division of marital property is not a subject of the Property
Settlement Agreement or any subsequent Domestic Relations Order.
This we believe is an unwise course for the attorney
representing the Police Officer of Firefighter. It is our view
that the attorney representing the Police Officer or Firefighter
must include language in any settlement which clearly and
unambiguously excludes any disability pension payments from the
marital part of the pension. Consider the operative language of
the Pulaski Stipulation of Settlement:
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"the Husband's pension shall be divided equally by
the parties by way of a Qualified Domestic Relations
Order and under the Majauskas (61 N.Y.2d 481, 463 N.E.2d
15, 474 N.Y.S.2d 699) formula. Any loans or advances
taken by the husband from commencement of the divorce
action forward will be deducted from the husband's final
share in said pension QDRO...7. Except to the extent
provided in this agreement, the parties mutually waive
their rights and release each other from any claims for
distribution of marital property, distributive awards,
special relief or claims regarding separate property or
increase in the value thereof." |
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The message of the Pulaski court is in
itself an inherent warning to attorneys to
draft with caution regarding Police Officer and
Firefighter pension benefits. |
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however, based upon the express language (emphasis
mine) of the parties' stipulation, by which they opted
out of the operation of case law construing Domestic
Relations Law § 236(B)(3), the parties provided for an
equal division of the defendant's pension without
reference to whether the pension was disability or
normal retirement. Moreover, they agreed to waive any
claim, inter alia, as to separate property as part of
Article X of the stipulation. |
We are not prepared to write at this time
that the Pulaski reasoning will prevail in every circumstance.
Nevertheless, we do believe it credible to aver that the express
and unambiguous terms of a stipulation regarding Police Officer
or Firefighter pension benefits and their assignment in divorce
are likely to present a formidable challenge to a Police Officer
of Firefighter seeking to "rewrite" his or her agreement to
exclude disability benefits paid incident to the disablement and
retirement of the member.
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