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Disabilty Vs. Retiremnet Components
© 2003 National Legal Research Group, Inc.
NEW YORK: Link v. Link, ___ A.D.2d ___, 759 N.Y.S.2d 133 (2003).
Disability benefits are separate property to the extent that they are compensation for injuries suffered by the recipient. They are marital property, however, to the extent that they are deferred compensation for prior service rendered during the marriage.
The husband and wife were divorced in 1993. The judgment of divorce provided in part that the wife was entitled to receive one-half of her husband's pension from the New York City Police Department. In March 2000, the husband was injured in the line of duty and retired. In 2002, he was granted disability and retirement benefits. The wife began receiving 50% of the husband's entire pension check.
The husband moved, in effect, to amend the 1993 judgment of divorce with respect to the amount of his pension payable to the wife, asserting that she was not entitled to any part of his pension which represented compensation for personal injuries, which he alleged was his separate property. The trial court denied his motion. The appellate division reversed. It held that to the extent that a disability pension constitutes compensation for personal injuries, that compensation is, indeed, separate property which is not subject to equitable distribution. However, to the extent that the disability pension represents deferred compensation, it is subject to equitable distribution. Therefore, the wife would be entitled to only one-half of the marital portion of so much of the husband's pension as represents deferred compensation, and no part of his pension as constitutes compensation for personal injuries.
Because the record was not sufficiently clear, the appellate division remanded the matter to determine what part of the husband's pension constituted marital property subject to distribution and for the entry of an order amending the judgment of divorce accordingly. It was also held that the husband was entitled to a credit for any overpayments made to the wife by the Police Pension Fund.
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