Opinion
May 3, 1999
Appeal from the Supreme Court, Westchester County (Barone, J.).
Ordered that the judgment is modified, on the law, by (1) deleting from the eleventh decretal paragraph thereof the word "one-third", and substituting therefor the word "one-sixth" and (2) deleting from the twelfth decretal paragraph thereof sum of $23,049.60 and the word "one-third" and substituting therefor the sum of $11,524.80 and the word "one-sixth", respectively; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.
In determining a party's maintenance or child support obligation, a court need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential (see, Matter of Diamond v. Diamond, 254 A.D.2d 288; Brown v. Brown, 239 A.D.2d 535). Here, the court properly imputed an annual income of $69,000 to the husband when it computed maintenance and child support (see, Goddard v. Goddard, 256 A.D.2d 545; Brown v. Brown, supra; Phillips v. Phillips, 249 A.D.2d 527).
Under the circumstances, an award of 50% of the value of the marital property to each of the parties constitutes an equitable distribution of that property (see, Domestic Relations Law § 236 [B] [5] [c]; Robertson v. Robertson, 186 A.D.2d 124; Shahidi v. Shahidi, 129 A.D.2d 627).
It is well established that pension and retirement benefits belonging to either spouse attributable to employment during the marriage constitute marital property subject to equitable distribution upon divorce (see, Majauskas v. Majauskas, 61 N.Y.2d 481; Damiano v. Damiano, 94 A.D.2d 132). Since the husband and wife were married for 8 of the husband's 24 years of service, one-third of the pension, including an early retirement incentive based upon past service, constitutes marital property (see, Olivo v. Olivo, 82 N.Y.2d 202; Marcus v. Marcus, 135 A.D.2d 216, 222, mod on other grounds 137 A.D.2d 131; Zacharek v. Zacharek, 116 A.D.2d 1004; Damiano v. Damiano, supra, at 139). Under the circumstances, we conclude that one-third of the funds in the plaintiff's individual retirement account also constitute marital property. The wife's equitable share is one-half of those portions. The judgment has been modified accordingly.
The husband's remaining contentions are without merit.
Altman, J. P., Goldstein, Florio and McGinity, JJ., concur.