Four marital assets that travel with every NYPD and FDNY pension — and disappear when the agreement is silent.
For decades, family law practitioners divided a pension by citing Majauskas and moving on. In a simpler era of a single defined-benefit pension, that was often enough. It isn’t anymore.
Start with the rule that governs everything: the agreement controls. The Court of Appeals laid it down in McCoy v. Feinman (2002) — a domestic relations order “can convey only those rights to which the parties stipulated.” If the agreement is silent about a benefit, the order cannot award it. If it’s vague, the order is stuck with the vagueness. And once signed, those silences are permanent unless both parties consent to fill them.
Here is the trap: the Majauskas formula divides only the core monthly pension. It says nothing about the four assets below — each of which has to be named, separately and explicitly, in the agreement.
The four hidden assets most agreements miss
- The ASF “Excess.” The Annuity Savings Fund is the member’s contribution account, earning 8.25% statutory interest. The balance routinely exceeds the “required amount,” and that excess is separately distributable — often tens of thousands of dollars. Language addressing “the pension” does not capture it.
- The Variable Supplemental Fund (VSF). A separately funded annual benefit the City pays to retirees. Marital property under DeLuca v. DeLuca — but in Russo v. Willoughby, a stipulation silent on the VSF meant the order could not reach it.
- The VSF DROP. The accumulated deferred VSF balance — a third, distinct asset. It is not payable on disability retirement, so if an application is pending, address it before it’s finalized or it’s gone.
- The disability portion. Where a pension includes a disability component, the personal-injury portion is separate property under DRL § 236(B)(1)(d)(2) — but only if the agreement says so. Silence converts separate property to marital by default.
Silence cuts both ways
In Gluck v. Gluck, a stipulation that didn’t differentiate the disability portion led the Fund to pay the spouse 50% of the entire pension, accident-disability portion included. And the formula choice itself binds: in McPhillips, a fixed-share stipulation could not be re-read as a Majauskas coverture fraction twenty-five years later. What you write is what controls.
The practical move
Name the ASF excess. Name the VSF. Name the VSF DROP. Identify the disability classification. Don’t ask a court to choose between competing presumptions years from now — get each asset on the page while you still can. Majauskas is the floor, not the ceiling.
Attorney Advertising. Informational and educational purposes only — not legal advice. All case citations should be independently verified. Erin Norris-Colgan, Esq. — Northstar QDRO. northstarqdro.com
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Citing Majauskas in your stipulation and moving on used to be enough. It hasn’t been for years.
Under McCoy v. Feinman, the agreement controls — a domestic relations order can convey only what the parties stipulated. And the Majauskas formula divides only the core monthly pension. Four marital assets travel with every NYPD/FDNY pension and vanish when the agreement is silent:
- The ASF “Excess” — separately distributable, often tens of thousands.
- The Variable Supplemental Fund (VSF).
- The VSF DROP — gone if a disability application is finalized first.
- The disability portion — separate property only if the agreement says so.
Name each one. Don’t ask a court to fix it later — once signed, the silences are permanent.
New on the blog, Beyond Majauskas Post 2: “Why Citing Majauskas Is No Longer Enough.” Link in comments. → Open NYPD/FDNY case? DM me for a second set of eyes.
#matrimoniallaw #familylaw #QDRO #pensiondivision #divorce | Attorney Advertising. Not legal advice.
