(concurring in part and dissenting in part). The principal issue presented on this appeal requires us to consider whether the trial court, in the exercise of the broad *384discretion accorded to it by Domestic Relations Law § 236 (B), may limit the election by an employee spouse among alternate options available upon retirement under a public employment pension plan, and compel the employee spouse to designate irrevocably the nonemployee spouse as a beneficiary of pension benefits pursuant to the selected option. My colleagues in the majority concur in Special Term’s ruling in this case of apparent first impression in this department, that a court has the power to direct the employee spouse’s election of an option for the receipt of retirement benefits and the designation of a beneficiary "where necessary, to preserve the nonemployee spouse’s interest in the fund” (McDermott v McDermott, 123 Misc 2d 355, 360). I believe that under the present posture of this State’s decisional law, Special Term (123 Misc 2d 355) lacked the authority to limit the defendant’s choice of pension options. It is in the determination of this issue that my views diverge from those of the majority and, accordingly, I vote to modify the judgment appealed from by deleting therefrom the provisions of Special Term’s judgment directing the irrevocable designation of the plaintiff as beneficiary under the pension plan and limiting the defendant’s choice of pension benefits.
An accurate rendition of the facts in this matter is set forth in particular detail in the opinion of the majority and, therefore, will not be repeated here. Suffice it to say that the marriage between the parties was of long duration, the major marital asset is the interest in a pension plan of the New York City Fire Department with whom the defendant was employed during most of the 33 years of the parties’ marriage, and that the plaintiff is a housewife suffering from severe health problems and lacking in meaningful work experience such that her potential for developing any significant earnings in the future is virtually nonexistent.
At the outset, I note that the distinctions between intervention as of right under CPLR 1012 (a) and as a matter of discretion under CPLR 1013 are of little consequence (see, Vantage Petroleum v Board of Assessment Review, 91 AD2d 1037, 1040 [Lazer, J. P., dissenting], affd 61 NY2d 695; Matter of Norstar Apts. v Town of Clay, 112 AD2d 750). Hence, without indulging in the specifics of whether the Fire Department Article 1-B Pension Fund (hereinafter the fund) had a right, as a matter of law, to intervene, I join with the majority in their finding that Special Term abused its discretion as a matter of law by denying permissive leave to intervene.
*385It is well settled that pension benefits attributable to employment during the marriage and prior to commencement of a matrimonial action constitute marital property subject to equitable distribution upon divorce (see, Majauskas v Majauskas, 61 NY2d 481, 485-486; Rodgers v Rodgers, 98 AD2d 386, 392-393, appeal dismissed 62 NY2d 646; Damiano v Damiano, 94 AD2d 132, 139). In the face of this principle of law, the defendant in the instant matter does not challenge the plaintiff’s entitlement to a portion of his pension. Rather, the defendant contests the share of his pension benefits awarded to the plaintiff and the provision of the judgment limiting the options he may select upon retirement and directing him to designate irrevocably the plaintiff as beneficiary of benefits payable upon his death.
I can see no reason to disturb the trial court’s determination that the plaintiff is entitled to a one-half share of the benefits earned during the marriage and prior to commencement of the action. This was a marriage of long duration, and the entire pension accrued during the marriage. The plaintiff has virtually no employment potential in view of her long absence from the paid work force, her age and her health. Under these circumstances, the award of one half of defendant’s pension benefits is clearly equitable.
I also am of the opinion that Special Term was correct in its assessment that an " 'if, as, and when’ ” approach rather than a lump-sum payment of benefits should be applied (see, Rodgers v Rodgers, 98 AD2d 386, 392, supra; Damiano v Damiano, 94 AD2d 132, 139, supra). The trial court properly concluded that a lump-sum distribution was not feasible because the husband’s pension represented the primary marital asset and there were insufficient other marital assets from which such payment could be made. I further note that the defendant is not entitled to a lump-sum payment of his reserve fund.
I believe, however, that Special Term exceeded its authority in limiting the defendant’s choice of options. While I am cognizant of the laudable goal which the trial court sought to accomplish by this provision, i.e., to prevent the defendant from defeating the plaintiff’s rights to his pension benefits under the divorce judgment, the nature of the protection sought to be accorded the plaintiff’s interest violates the public policy underlying public retirement systems. Therefore, I cannot join the majority’s affirmance of Special Term’s determination of this issue.
*386NY Constitution, article V, § 7 provides that, after July 1, 1940, "membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired”. Thus, the defendant’s membership in the fund was a "contractual relationship” (see, Matter of Guzman v New York City Employees’ Retirement Sys., 45 NY2d 186, 191; Kleinfeldt v New York City Employees’ Retirement Sys., 36 NY2d 95, 99). Part of the contract terms are contained in the provision of the Administrative Code of the City of New York § B19-7.94 governing the New York City Firemen’s Retirement System. Administrative Code § B19-7.94 provides that the rights of a member of the fund to any pension benefits are exempt from "execution, garnishment, attachment, or any other process whatsoever, and shall be unassignable except as in this article specifically provided”. I turn first to the fund’s argument that Special Term’s determination with respect to the limitation of options under the pension and the designation of beneficiary violates the antiassignment provision of the Administrative Code.
In Caravaggio v Retirement Bd. of Teachers’ Retirement Sys. (36 NY2d 348), the Court of Appeals relied upon a similar exemption and antiassignment provision protecting the New York City Teachers’ Retirement System (Administrative Code § B20-48.0) in reaching a determination that a pension member husband could not bargain away, by a provision in a separation agreement, his right to change his designation of beneficiary of benefits under the pension plan payable upon his death. The pension member husband had agreed in a separation agreement to designate irrevocably his first wife as his beneficiary of benefits payable under the New York City Teachers’ Retirement System upon his death. Some time after the husband’s divorce and remarriage, he filed a new designation of beneficiary naming his second wife as primary beneficiary. The court held that the husband had a statutory right to change his designation of beneficiary at any time. To find otherwise, the court opined, would defeat the public policy underlying the exemption and antiassignment provisions of many State and city retirement systems. The articulated intent is "to protect the member and his family from the results of his own improvidence or misfortune, and to relieve the retirement systems from the vast amount of administrative work attendant on the processing of attachments, assignments, and the like” (Caravaggio v Retirement Bd. of Teach*387ers’ Retirement Sys., 36 NY2d 348, 353, supra). Despite the court’s refusal to give effect to that portion of the separation agreement limiting the husband’s irrevocable designation of his first wife as beneficiary, it noted that such promise may form the basis of a contract action brought against the general assets of the husband’s estate (Caravaggio v Retirement Bd. of Teachers’ Retirement Sys., supra, at p 353).
In reliance upon the Caravaggio decision (supra), this court dismissed as violative of public policy a counterclaim interposed on behalf of a defendant wife for specific performance of a contract whereby the plaintiff husband agreed to irrevocably designate the plaintiff wife as beneficiary of the husband’s benefits from the New York City Retirement Fund, and to elect an option upon retirement which would insure that she would receive at least one half of the periodic payments during her lifetime (Leavitt v Leavitt, 54 AD2d 707).
Parenthetically, I note, as does the majority, that the decisional law has created an exception to the exemption and alienation proscription of many public pension systems, holding such provisions to be inapplicable if they would serve to deprive the nonemployee spouse of the right to support (see, e.g., Monck v Monck, 184 App Div 656; Zwingmann v Zwingmann, 150 App Div 358). The Federal courts have similarly determined that the general antialienation provision of the Federal Employment Retirement Income Security Act of 1974 (ERISA) (29 USC § 1001 et seq.) does not bar garnishment of ' payable benefits in satisfaction of court-ordered family support payments (see, e.g., Cody v Riecker, 594 F2d 314; American Tel. & Tel. Co. v Merry, 592 F2d 118). The thrust of these decisions is that the family support obligation is entitled to special status. The purpose of the alienation and assignment proscription, namely, to preserve the pension fund for the benefit of the pensioner and his beneficiaries and to protect the pensioner from his own improvidence, would not be furthered by permitting the pensioner to avoid his traditional support obligations.
The instant case has developed primarily in the context of a property distribution and does not involve the enforcement of a predetermined support obligation. This distinction is not without its difficulty in regard to the equitable distribution of pension benefits. If the award of an interest in the benefits is characterized as support, the court apparently has the power to direct the election of options and designation of a beneficiary to the extent necessary to preserve the rights of the *388nonemployee spouse in the fund (see, Majauskas v Majauskas, 61 NY2d 481, 493, supra), but if the award is denominated a property distribution the court’s power is restricted by the antialienation provision (see, Caravaggio v Retirement Bd. of Teachers’ Retirement Sys., 36 NY2d 348, supra; Leavitt v Leavitt, 54 AD2d 707, supra). The manner in which New York’s equitable distribution statutes are structured demonstrates the close interrelationship and interdependency between a court’s award of maintenance and division of marital property. Pursuant to Domestic Relations Law § 236 (B) (5) (d) (5), a court, in determining the equitable distribution of property, is directed to consider any award of maintenance. Conversely, in awarding maintenance, the court is directed to consider any distribution of marital property which has been made (Domestic Relations Law § 236 [B] [6] [a] [1]). In fact, Special Term, in ordering that maintenance be discontinued upon the defendant’s retirement, was, in essence, substituting a portion of retirement benefits for maintenance. Thus, while the concepts are not interchangeable (see, Rodgers v Rodgers, 98 AD2d 386, 393, supra; Perri v Perri, 97 AD2d 399, 400), payments which in the strictest sense constitute support and those that represent a division of property clearly incident to a dissolution of marriage are economically so intertwined that a distinction between them for purposes of giving effect to the ban on assignment and alienation contained in the Administrative Code would seem to be unwarranted (see, Matter of Spadaro v New York City Police Dept. Pension Serv., 115 Misc 2d 494). Such distinctions could conceivably deprive the non-employee spouse of an equitable share in pension benefits to which such spouse is entitled by virtue of contributions to the marriage while concurrently depriving the nonemployee spouse of maintenance in reliance upon the expected distribution of pension benefits. The result would be particularly harsh in the instant matter because the plaintiff does not have the option of bringing an action against the defendant’s estate to recover damages for breach of contract since no limitations upon the defendant’s choice of pension benefits was incorporated into a separation agreement. The courts in both Caravaggio v Retirement Bd. of Teachers’ Retirement Sys. and Leavitt v Leavitt (supra), expressly noted that a breach of contract action was available in order to recover damages for breach of terms which public policy precluded the courts from enforcing directly.
While I recognize that Caravaggio and Leavitt (supra) are *389preequitable distribution decisions, I do not believe that the altered concepts of property interests which are the outgrowth of the Equitable Distribution Law have eliminated the proscriptions contained in the antiassignment provisions of many public employment retirement systems. Indeed, the Court of Appeals in Majauskas v Majauskas (61 NY2d 481, supra) declined to specifically overrule Caravaggio. Concededly, the court, in obiter dictum, seems to have opened the door for a partial retreat from the intractable position formulated in Caravaggio. However, Judge Meyer, writing for a unanimous Bench, distinguished Caravaggio, thereby leaving its precedential value intact. The court reasoned as follows: "There remains for consideration the husband’s contention that to distribute his pension is to diminish or impair it contrary to the State Constitution (art V, § 7). The short answer is that the pension of the employee spouse is not diminished in the sense that the pension fund will pay any lesser amount. The husband’s reliance upon Caravaggio v Retirement Bd. (36 NY2d 348) is misplaced, for that decision depended not upon the Constitution but upon an antiassignment statute, and held that the pensioner could not contract away, by a provision in a separation agreement purporting to make his then wife the irrevocable beneficiary of all benefits payable upon his death after retirement, his right under the plan to designate his second wife as such beneficiary. Although section 410 of the Retirement and Social Security Law contains similar protection of police pensions against assignment or legal process, such provisions have been consistently construed not to have the effect of depriving the nonemployee spouse of the rights accorded him or her upon dissolution of the marriage by a decree of divorce (Monck v Monck, 184 App Div 656; Zwingmann v Zwingmann, 150 App Div 358; Matter of Spadaro v New York City Police Dept. Pension Serv., 115 Misc 2d 494; see American Tel. & Tel. Co. v Merry, 592 F2d 118)” (Majauskas v Majauskas, supra, at p 493).
The above-quoted language of the Majauskas court is ambiguous, at best, and may not be read so broadly as to extend the limited exception to public pension antiassignment clauses to encompass any rights of the nonemployee spouse following dissolution of a marriage.*
*390The only apposite New York cases on this question, both of which were decided by the Appellate Division, Fourth Department, provide little assistance in resolving the instant matter. In Farsace v Farsace (97 AD2d 951), which Special Term ignored in its decision, the trial court limited the defendant husband’s choice of options under the New York State Employees’ Retirement System, of which he was a member, to those which would not impair the plaintiff wife’s rights to receive the full amount of her equitable share. To protect against the contingency of the husband’s death before retirement, the court directed the husband to keep in effect until his retirement a contractual will giving the wife a right to claim from his estate an amount equal to her equitable share in the pension plan. Making no reference to Caravaggio (supra), the Fourth Department ruled that the provisions of the trial court’s order were within the broad discretion of the court. Nevertheless, the court modified the order to provide, alternatively, that the husband could elect any available pension option as long as he maintained in effect an insurance policy naming the wife as irrevocable beneficiary in an amount sufficient to pay the remaining balance of the wife’s equitable share of the pension.
While the approach of the Farsace court is tempting, I do not believe that it is feasible in the matter before us to follow the lead of the Farsace court and require the defendant to purchase life insurance for plaintiff’s benefit to protect her equitable share in the pension. In view of the defendant’s age, the insurance alternative would be unduly burdensome by substantially diminishing the defendant’s available income. If the defendant were to purchase insurance under Option IV of the fund at a cost of approximately $65 per $1,000 of coverage he would have to pay approximately $10,000 in premiums the first year in order to obtain coverage sufficient to protect the plaintiff’s equitable share in the pension. Moreover, in order to avoid the financial consequences of the insurance alternatives, the defendant would essentially be economically coerced *391into choosing an option which would preserve the plaintiffs interest in the pension fund. It thus becomes clear that such a directive would accomplish indirectly what we are powerless to do directly, namely, to limit the defendant’s selection of options under the pension plan.
In a case decided after the decision of Special Term in the instant matter, the Fourth Department reaffirmed the holding of Farsace (supra). However, rather than expressly limiting the defendant’s choice of options under his pension plan, the court stated that the plaintiff’s equitable share of each periodic payment was to be computed as though the defendant had chosen the maximum allowance under the pension (Ferriera v Ferriera, 112 AD2d 22).
I cannot adopt the reasoning of the Farsace and Ferriera courts because I disagree with the basic premise of those decisions, namely, that the power to direct the choice of options and designation of beneficiary under a public employment pension plan is encompassed within the broad discretion of the trial courts. Although the decision in Majauskas (supra) seems to have expanded the exception to the general proscription against alienation and assignment of pension benefits under public retirement systems, it did not overrule Caravaggio (36 NY2d 348, supra). Until the Court of Appeals expressly does so, we are bound by stare decisis to find that the exception is inapplicable to an equitable distribution of marital property. I cannot accept the arguments asserted by my colleagues in the majority that the property concepts developed by the Equitable Distribution Law override the traditional protections afforded pension benefits. The majority’s well-reasoned analysis presents compelling arguments for pursuing measures to ensure that a nonemployee spouse’s interest in the employee spouse’s pension is protected. Nonetheless, I fail to perceive the nature of our authority to ignore established precedent. The Court of Appeals in Majauskas (supra) had the opportunity to address the scope of judicial authority in this regard, albeit in dicta; its silence may not be construed as an implicit derogation of the protections against judicial process traditionally awarded certain public employment pensions.
In recognition of the limits of the court’s authority, I believe the best approach at bar to ensure that the plaintiff derives the maximum benefits possible in satisfaction of her equitable share of the pension is to compute the equitable share of each periodic payment as though the defendant had chosen the *392maximum allowance under his pension (cf. Ferriera v Ferriera, supra). Significantly, in this regard, the supervisor of the fund, Paul J. Porcello, testified at the trial that during the period of his tenure as supervisor, all but five of 1,300 retirees had chosen the maximum allowance benefit. Each of the retirees, who had chosen an option other than the maximum allowance, was suffering from a terminal illness and had been advised that he did not have long to live. There is nothing in the record to indicate that the defendant suffers from any significant health problems. Therefore, we may safely assume that had he not been divorced from the plaintiff he would have followed the lead of the majority of retirees and chosen the maximum allowance benefit. I indulge in this hypothesis for the purpose of demonstrating that adopting the approach which I suggest will simply lend the imprimatur of legal mandate to conduct which would have been undertaken notwithstanding any judicial direction.
As a final note, I share the majority’s rejection of the fund’s argument that judicial restriction of pension option and beneficiary choices is violative of the State Constitution’s nonimpairment of contracts clause (NY Const, art V, § 7). The Majauskas court found that distribution of pension benefits did not diminish or impair the pension contrary to the State Constitution, reasoning that "the pension of the employee spouse is not diminished in the sense that the pension fund will pay any lesser amount” (Majauskas v Majauskas, 61 NY2d 481, 493, supra). The same principle is applicable to the matter before us.
In sum, I dissent and vote to reverse so much of the' judgment appealed from as limited the defendant’s choice of options and designation of a beneficiary under the fund. I concur as to the modification of the counsel fees provision of the judgment in order to give the defendant credit for counsel fees previously paid, as to affirmance of the remaining provisions of the judgment, and as to the reversal of the order denying permissive intervention.
Niehoff and Rubin, JJ., concur with Lazer, J. P.; Thompson, J., dissents in part and votes to delete the provisions of the judgment appealed from which limit the defendant’s choice of options and designation of beneficiary with respect to his pension, and otherwise concurs and votes to further modify the judgment by reducing the award of counsel fees from $7,500 to $7,000, to otherwise affirm the judgment, and to reverse the order appealed from and to grant the proposed *393intervenor’s motion for leave to intervene, with an opinion, in which Weinstein, J., concurs.
Ordered that the order of the Supreme Court, Richmond County, dated April 16, 1984, is reversed, an the proposed intervenor’s application for leave to intervene is granted, and it is further
Ordered that the judgment of the same court, dated April 16, 1984, is modified, on the facts, by reducing the award of counsel fees from $7,500 to $7,000. As so modified, the judgment is affirmed, and it is further
Ordered that the plaintiff is awarded one bill of costs.
In Sochor v International Business Machs. Corp. (60 NY2d 254), the Court of Appeals raised the question of whether the courts can compel an election among alternative pension benefit options but left the question *390unresolved. The court held that where the former spouse is not a party to the action, an election could not be forced upon him. It specifically stated that "[w]e have no occasion to consider what remedies, if any, the wife might have if her former husband were a party to this proceeding” (Sochor v International Business Machs. Corp., supra, at p 257, n 1). In this regard, Special Term, in deciding the instant matter, was without power to direct the fund at bar to ensure that the defendant’s election of an option coincided with its decision as the fund was not a party to the proceeding (cf. Wilson v Wilson, 101 AD2d 536, 542).