amount of earnings attributable to the non-employee spouse’s separate property interest remains within the fund, committed to create the “defined” benefit. The non-employee spouse receives only his value as calculated and “frozen” on the date of divorce .... such a rule allows the employee spouse to reap the benefits of the earnings attributable to the non-employee spouse’s separate property interest in the fund. The actual earnings attributable to the non-employee spouse’s separate property interest cannot be awarded to the non-employee spouse, as a separate value, because they are needed to generate the value of the ultimate “defined” benefit. Yet, it seems inequitable for a divorce court to “freeze” the value of the non-employee’s interests in the pension benefits at divorc e.2000) (<HOLDING>); Page v. Page, 31 A.D.3d 1172, 817 N.Y.S.2d
holding that although disability benefits cannot be included as part of the marital estate a court may consider the waiver of retirement pension benefits in favor of disability benefits in determining whether there has been a material change in circumstances which would justify modification of an alimony award to a former spouse who was previously awarded a fixed percentage of the retirement pension benefits holding that nonemployee spouse waived distribution of her husbands early retirement benefits because although both parties were aware of the enhancements the additional benefits were not included in calculation of the pension funds at the time of dissolution holding that a nonemployee spouse holds a community marital property interest in pension plan early retirement enhancements because practically by definition the right to retirement benefits that accrues at least in part during marriage before separation underlies any right to an enhancement holding that qdros providing the former wife with future enhancements that were not part of the marital portion of husbands pension plan including future improvements cost of living adjustments and early retirement subsidies conflicted with the final judgment that valued the pension at the time of dissolution holding that although a spouse may have had a right to apportion military retirement benefits at one time the act requires the spouse to assert that right before entry of a finalized divorce decree or waive the right to the benefits