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POLICE OFFICERS AND FIREFIGHTER DISABILITY PENSIONS
PULASKI AND IT'S SIGNIFICANCE
DOMESTIC RELATIONS ORDERS


The Appellate Division of the Second Department in Pulaski (804 N.Y.S. 2d 404) has presented a serious drafting trap to attorneys representing New York City Police Officers and Firefighters. I do not think Pulaski represents the last word on the issues presented therein. Nevertheless, the inferences that can be drawn from this decision mandate caution when drafting the terms of a Domestic Relations Order regarding a Police Officer 's or Firefighter pension plan.

As part of the precautions inherent in this article the practitioner will observe that for both of these occupations the probability of disablement while employed is substantially greater than the probability of death while employed. For this reason the issue of occupational disablement and its impact on the division of pension benefits is of concern to respective counsel in this type of case. Moreover, the potential for a post-divorce adverse experience is greater for the attorney representing the Police Officer of Firefighter.

Generally, at the time of divorce the titled-spouse is working and healthy. Hence, there is a danger that his or her potential for disablement and its impact on the division of marital property is not a subject of the Property Settlement Agreement or any subsequent Domestic Relations Order. This we believe is an unwise course for the attorney representing the Police Officer of Firefighter. It is our view that the attorney representing the Police Officer or Firefighter must include language in any settlement which clearly and unambiguously excludes any disability pension payments from the marital part of the pension. Consider the operative language of the Pulaski Stipulation of Settlement:

"the Husband's pension shall be divided equally by the parties by way of a Qualified Domestic Relations Order and under the Majauskas (61 N.Y.2d 481, 463 N.E.2d 15, 474 N.Y.S.2d 699) formula. Any loans or advances taken by the husband from commencement of the divorce action forward will be deducted from the husband's final share in said pension QDRO...7. Except to the extent provided in this agreement, the parties mutually waive their rights and release each other from any claims for distribution of marital property, distributive awards, special relief or claims regarding separate property or increase in the value thereof."

The message of the Pulaski court is in itself an inherent warning to attorneys to
draft with caution regarding Police Officer and Firefighter pension benefits.

however, based upon the express language (emphasis mine) of the parties' stipulation, by which they opted out of the operation of case law construing Domestic Relations Law § 236(B)(3), the parties provided for an equal division of the defendant's pension without reference to whether the pension was disability or normal retirement. Moreover, they agreed to waive any claim, inter alia, as to separate property as part of Article X of the stipulation.

We are not prepared to write at this time that the Pulaski reasoning will prevail in every circumstance. Nevertheless, we do believe it credible to aver that the express and unambiguous terms of a stipulation regarding Police Officer or Firefighter pension benefits and their assignment in divorce are likely to present a formidable challenge to a Police Officer of Firefighter seeking to "rewrite" his or her agreement to exclude disability benefits paid incident to the disablement and retirement of the member.