Divorce cases sometimes present the challenge of dividing assets that are difficult to value as a result of uncertainties and external forces that are beyond the control of the parties. The courts in New York have held that the existence of difficulties in valuation should not prevent the courts from distributing assets so as to ensure that both spouses have the opportunity to share fairly in the economic fruits of their marital partnership.

Retirement assets, such as pension rights, qualify as marital property that is subject to equitable distribution. Majauskas v. Majauskas, 61 N.Y.2d 481, 489. Both vested and nonvested pensions are subject to equitable distribution. Burns v. Burns, 84 N.Y.2d 369 (1994). In Burns, the Court of Appeals specifically rejected the husband's contention that the uncertainty associated with a nonvested pension precluded its distribution, noting that: (a) the uncertainties can be factored into an analysis of a pension's present value; and (b) alternatively, even if no present value is ascertainable, the court could allocate future payments between the spouses by entering a qualified domestic relations order (QDRO). Id. at 377.

The decisions of the Court of Appeals in Majauskas and Burns reflect New York's public policy of broadly defining marital property and distributing such property, even in situations where valuations are difficult.