In Howe v. Howe, (2d Dep’t 2009), the husband became a New York City firefighter soon after the parties married and remained in that employment until approximately 16 months prior to the divorce action.  He became disabled as a result of his service following September 11, 2001 and retired with a disability pension.  In their divorce action, the Supreme Court determined that his entire pension was part of the marital estate and awarded the wife her marital share.  There was a lack of evidence in the court record by which the disability and non-disability portions of the pension could be distinguished.  The husband argued that the lack of expert testimony or evidence on the court record to distinguish the pension portions is not fatal to his separate property claim since that distinction can be made by the pension administrator. 

 The Appellate Division recognized that pension benefits, except to the extent that they are earned or acquired before marriage or after the commencement of a matrimonial action, constitute marital property.  To the extent that the disability pension represents deferred compensation, it is subject to equitable distribution in the matrimonial action.  To the extent that a disability pension represents compensation for personal injuries, that compensation is separate property not subject to equitable distribution.  The presumption is that the entire disability pension is marital property until proven otherwise. 

 The Court determined that, even where the record is technically lacking, public policy favors proper distribution of a disability pension.  In this case, the only evidence in the record as to the nature of the husband’s pension was his testimony that he receives approximately $5,000 per month.  There was no evidence of the terms of the pension plan pursuant to which he retired and no statement from the plan administrator as to how the pension amount was calculated.  There was nothing in the record about the husband’s earning such that a hypothetical final average salary could be determined and nothing that establishes the percentage of final average salary to which the husband is entitled as his pension.  Thus, the Supreme Court determined there was no record to determine the non-disability portion of the pension.  However, the Appellate Division recognized that the plan administrator of the pension would easily have this information at hand.  The administrator knows the terms of the husband’s pension plan, his final average salary and the percentage of that salary by which the pension is determined.  The division into two separate accounts of what the non-disability portion of the pension amounts to is accomplished by the plan administrator.   Thus, the Appellate Division sided with the husband’s argument that his separate property could be distinguished from the wife’s marital share of his pension.

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