In this matrimonial action the parties ask the court by motion and stipulated facts to determine whether defendant's noncontributory pension fund which has not yet matured to a point where defendant is entitled to receive any benefits is subject to equitable distribution.
As will be more fully set forth below, the facts reveal that defendant's rights under the pension plan are subject both to certain conditions which have not occurred and to possible forfeiture in the event of death. In this respect, this case closely parallels the facts existing in Mueller v. Mueller , 166 N.J. Super. 557 (Ch.Div.1979). In Mueller the court felt compelled
by the authority of Mey v. Mey , 79 N.J. 121 (1979), to hold that the pension was not subject to equitable distribution. I respectfully disagree that Mey requires this result and hold instead that the pension is subject to equitable distribution.
The parties were married on April 24, 1965. Defendant began working for Public Service Electric and Gas Company in January 1967, and that employment has continued to date. When defendant began employment he was over 22 years old. During the viable marriage he has been employed about 11 1/2 years. The essential elements of the employer's plan are as follows:
1. Each employee is an automatic participant in the noncontributory plan.
2. If the employee terminates employment after completing ten years of service after having attained the age of 22, he is eligible to receive a deferred pension at age 65 (normal retirement). If he terminates employment after 20 years of service beyond age 22, he can elect to begin receiving his deferred pension at age 60 (early retirement). He has various options to select from concerning the form of the pension.
3. If the employee becomes disabled after 12 1/2 years of service, he will receive a pension for the duration of his disability.
4. If the employee were to die before age 55 while receiving a disability pension, if unmarried, benefits would cease. If the employee was married at the time of death, joint and survivor annuity benefits would be payable to the surviving spouse on the date on which the employee would have attained the age of 55, unless a single life annuity had been previously selected, in which case, of course, benefits would cease at death.
5. The disability and pre-retirement survivorship options are not available to employees who terminate employment prior to retirement.
6. Neither the employee nor his beneficiaries are entitled to any benefits if the employee dies before retirement, unless death occurs while the employee is receiving a disability pension, having chosen a joint and survivorship annuity, or the employee has elected the pre-retirement survivorship option. That option may be elected at age 50 after completing at least 20 years of service and provides a reduced lifetime benefit to the surviving spouse.
7. The employee is not entitled to any lump sum payment from the plan in the event of termination of employment. However, ...