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Faulkner v. Faulkner

June 11, 2003

MARILYN FAULKNER, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
LAWRENCE FAULKNER, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division - Famly Part, Bergen County, FM-02-1673-00.

Before Judges King, Wefing and Lisa.

The opinion of the court was delivered by: Wefing, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 30, 2003

The parties appeal and cross-appeal from certain aspects of the judgment of divorce entered by the trial court on November 2, 2001. Their dispute is concentrated primarily on the manner in which the trial court handled their respective pension rights.

I.

Because of the issues presented, it is necessary to set forth the parties' work history in some detail. The parties were married in March 1973 and have three children, two of whom are emancipated. The youngest, Emily, is now fourteen and the parties share joint custody. Both are attorneys admitted to practice in New York State where they resided until moving to New Jersey in 1997.

Defendant received his undergraduate degree in 1965, following which he held several different positions as a New York State employee before enrolling in law school. The result of that employment was that he accrued 2.7 years of credit in the New York State Pension System. He was not working for New York State when the parties were married, however, but was enrolled in law school. Between 1974 and 1982, after finishing law school, he had a part-time teaching position with the state university system in the Buffalo area and held a variety of legal positions.

In 1982 the parties moved to Albany and defendant began a full time position with the New York State Office of Mental Retardation and Developmental Disabilities. As a result of his state employment, he was a participant in the New York State Pension System. Defendant was terminated from state employment, effective in January 1997, at which point he was fifty-three years old.

New York's pension system for state employees distinguishes between what is referred to as a Tier 1 pension and a Tier 3 pension. To qualify for a Tier 1 pension, one had to be employed by the State prior to 1973. An individual who qualified for a Tier 1 pension did not have to contribute toward his or her pension and could retire, with full benefits, at age fifty-five. Tier 3 participants, on the other hand, had to contribute a certain percentage of their salary toward their pension and had to wait to age sixty-two before being able to retire with full benefits.

At the time of defendant's termination, New York State had implemented a program to encourage individuals in the Tier 1 program to retire early. In light of defendant's years of service, he was allowed to participate in this program. Defendant was credited with the additional years of service he would have completed if he were fifty-five, and a discount of ten percent was applied to reflect his current age. Defendant was allowed to retire on full pension as thus calculated. When defendant took this retirement opportunity, the parties discussed between themselves how defendant should take his pension and they agreed that defendant should take the maximum monthly benefit, without a survivor provision. The result is that defendant, commencing in 1997, began to receive a monthly pension of $2,936.09 from New York State.

Defendant did not remain inactive, however. In April 1997 he secured a position as counsel to the Westchester Association of Retired Citizens, in which he earns $84,900 annually.

Plaintiff worked as a teacher at the time the parties were married. She stayed home for some time with the couple's first two children and then entered law school in 1978. When plaintiff completed law school, the family moved to Albany. She also obtained a position working with the State of New York and became a participant in the State's pension system. However, because she had not worked for the State prior to 1973, she could not qualify as a Tier 1 participant.

When the family moved to New Jersey in July 1997, plaintiff left her position with New York State but her pension credits remained intact. Plaintiff was able to obtain a position as a federal administrative law judge, hearing appeals within the Social Security system. She earns $114,756 in that capacity and is also participating in a federal pension program. ...


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