Immediately start receiving your interest in your former spouse’s IRA, pension, or retirement plan.
The Law Offices of Edward Misleh, APC is a Sacramento law firm, located in Sacramento, California that practices California family law and California divorce law. We represent clients in Sacramento, California and in Northern California with services they need and deserve when addressing California divorce, California community property, and division of California retirement plans. Call now our Lawyer Hotline. We offer a free consultation to all new clients. Call now 916-443-1267 for your free consultation.
Former Spouse Retirement Plan
You have an interest in your former spouse retirement plan if any contributions were made during your marriage. If so, you can immediately begin receiving your interest in your former spouse’s retirement plan.
Even though your former spouse would like to continue working past their earliest retirement age, you can start receiving benefit payments. Any payment from your former spouse’s retirement plan will be based on the community interest created before your former spouse actually retires. “Gillmore Rights” allow the non-employee former spouse to receive their community property share of the employee former spouse benefits at the earliest date on which the employee would be eligible to retire.
The former non-employee spouse must file a request for order with a California Family Court for payment of benefits from your former spouse retirement plan. Alternately, should you have already obtained a Domestic Relations Order, the non-employee former spouse can simply contact the former spouse’s plan administrator to begin receiving benefits.
Once you, the non-employee former spouse, begin to receive benefits for your former spouse retirement plan, you will not be entitled to share in any future benefit increases due to the employee’s continued service, increased age, or increased salary. You will still be entitled to cost-of-living adjustments.
Waiver of Gillmore Rights
Be aware that if you and your former spouse choose to divide retirement benefits by the “Time Rule formula” instead of actually separating the retirement into two accounts, this can be construed as an implicit waiver of Gillmore rights, unless the Domestic Relations Order states otherwise.
CalPERS & CalSTRS
These California state plans require language to be contained in a Domestic Relations Orders stating that payments to the non-employee former spouse will not commence until the member actually retires and begins receiving payments. This affects only payments made directly by the state agency. The non-employee spouse can still seek court order to receive payments directly from the still-working employee.
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