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What Happens to Retirement Assets in a Divorce?

Retirement assets are marital property. It will almost always be 50-50%.  If one party has a retirement asset and the other doesn’t, then the divorce law in New York says it should be divided by the “Majuaskas formula”, i.e. a ratio equal to the years the marriage lasted (the denominator) and the years of employment lasted (the numerator). Let’s say wife starts a job in 1985, gets married in 1990, and gets divorced in 2005.  The husband is entitled to half of the retirement earned during the marriage. If the marriage lasted 15 years, the Wife’s retirement accumulated over 20 years, so 15 over 20, or 3/4ths, or 75% of her retirement is marital property and the husband gets 50% of that.  See other examples here https://www.osc.ny.gov/retirement/members/divorce/determining-ex-spouses-share


Even social security is a marital asset. The lower-earning spouse can either claim their own SSA benefit or half of their spousal benefit, depending on which is higher.  Spousal payout is capped at 50% of the primary beneficiary’s full benefit.  Interestingly, when a former spouse opts for a share of their ex’s benefit, there is no reduction in the ex’s award. According to the SSA website “Any benefits paid to a divorced spouse DO NOT reduce payments made to the ex or any payments due the ex’s current spouse.”

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