What portion is marital?
Generally what accrued during the marriage. Contributions made before the marriage, and their growth, are usually separate property.
For a defined-contribution plan — a 401(k), a 403(b), an IRA — this is largely arithmetic against the account records.
For a defined-benefit pension, it is a formula. New York courts commonly use the Majauskas formula, which allocates the marital share by reference to the period of service during the marriage relative to total service. The Majauskas fraction divides service credit earned during the marriage by total service credit at retirement. The former spouse receives the agreed or court-awarded percentage of that marital share; the formula and service dates must match the settlement and plan.
What a QDRO is, and why it matters
A divorce judgment says the retirement asset is divided. It does not, by itself, make the plan administrator do anything.
A Qualified Domestic Relations Order is a separate court order directing the plan to divide the account or pay a portion to the former spouse. Without it, the plan will not act. The agreement can be perfectly clear and the money will not move.
Practical points that cause real damage when missed:
- The QDRO must be drafted, entered by the court, and accepted by the plan administrator. Each plan has its own requirements, and administrators reject orders that do not meet them.
- Do it at the time of the divorce. A QDRO prepared years later is harder — records go missing, the account has changed shape, the former spouse may be uncooperative, and in the worst case the participant has retired, remarried, or died in the meantime.
- Different plans need different orders. Government and military retirement systems have their own rules and are not covered by the same instrument.
NYSLRS uses a Domestic Relations Order (DRO). Military retired-pay orders must satisfy the Uniformed Services Former Spouses’ Protection Act and DFAS requirements. Other public plans have their own rules; obtain the particular administrator’s requirements before drafting.
Survivor benefits
Frequently overlooked and expensive to overlook. Whether a former spouse retains a survivor benefit under a pension is a separate question from how the pension is divided, and it must be addressed expressly. If it is not, the benefit may be lost.
The failure this page exists to prevent
The most common serious error in New York divorce practice is a settlement agreement that divides a pension in principle with no QDRO ever entered.
Everyone assumes it was handled. It surfaces at retirement, twenty years later, when the former spouse contacts the plan and discovers there is nothing on file. By then the remedies are limited and expensive, and sometimes there is no remedy at all.
If you are divorced and your agreement divided a retirement asset, confirm the QDRO was entered and accepted by the plan. It is a short enquiry and worth making today rather than at sixty-five.
Frequently asked questions
What is a QDRO?
A Qualified Domestic Relations Order — a separate court order directing a retirement plan to divide an account or pay a portion to a former spouse. The divorce judgment alone does not accomplish this.
Is my whole 401(k) divided in a divorce?
Generally only the portion that accrued during the marriage. Pre-marital contributions and their growth are usually separate property.
How is a pension divided in a New York divorce?
By identifying the marital share, commonly using the Majauskas formula, which allocates by reference to service during the marriage relative to total service.
What happens if we never did the QDRO?
The plan will not divide the account. This often surfaces at retirement, when remedies are limited. If your agreement divided a retirement asset, confirm the order was entered and accepted.
Do I need a QDRO for an IRA?
IRAs are typically transferred by a different mechanism than employer plans. The agreement should specify how each account is to be transferred.
Related: Equitable Distribution · High-Asset & Complex Divorce · back to Divorce
Written by Dale Riedel, Esq. · Admitted in New York, Bar No. 5837539 · Last reviewed October 6, 2026