Start receiving your interest in your spouse’s pension or retirement plan even if they decide not to retire.
The Law Offices of Edward Misleh, APC is a Sacramento law firm, located in Sacramento, California that practices family law and represents clients in Sacramento, California and clients in Northern California with services they need and deserve when addressing all aspects of divorce and community property. Call now our Lawyer Hotline. We offer a free consultation to all new clients. Call now 916-443-1267 for your free consultation.
All increases in retirement plans that accrue beginning from the date of marriage to the date of separation is community property. The amount of money in these retirement plans can be significant.
Gillmore rights allow the former non-employee spouse to start receiving their share of benefits in the former employee spouse’s pension should they want to continue working after their retirement date. The former non-employee former spouse has the ability to receive their interest in community property at the earliest date on which the former employee spouse would be eligible to retire, regardless of whether the former employee spouse actually retires at that time. This option to commence benefits at the earliest retirement date is governed by federal law 29 USC §1056(d)(3)(E)(i); Internal Revenue Code §414(p)(4); and a California court case Marriage of Gillmore (1981) 29 C3d 418.
The Gillmore Election
A “Gillmore Election” occurs when a former non-employee spouse makes a motion in court to demand payment of benefits from the plan or the participants. The “Gillmore election is irrevocable which means that if the former non-employee spouse commences receiving benefits before the former employee spouse actually retires, the former non-employee spouse will not be entitled to share in any future benefit increases due to the former employee spouse’s continued service, increased age, or increased salary. The former non-employee spouse will still be entitled to cost-of-living adjustments.
Waiver of Gillmore Rights
It is possible for parties to waive Gillmore rights explicitly as part of a divorce proceedings. The parties should be aware that retirement benefits can be divided by using the Time Rule Formula or by a Separation of Account. Should they choose the Time Rule Formula, this can be construed as an implicit waiver of Gillmore rights, unless the Domestic Retirement Order states otherwise. CalPERS, CalSTRS, and other government plans require language in their Domestic Relations Orders stating that payments to the former non-employee spouse will not commence until the member actually retires and begins receiving payments. This is with regard to the plan and payments made directly by the plan only; a non-employee spouse could still seek court action against the former employee spouse requesting payments directly from the still-working former employee spouse.
CalPERS Retirement Plans
CalPERS offers a defined benefit plan where retirement benefits are based on a formula, rather than contributions and earnings to a savings plan. Retirement benefits are calculated based on a member’s years of service credit, age at retirement, and final compensation (average salary for a defined period of employment).
CalPERS Retirement Plan Formulas
CalPERS formulas vary depending on classification (e.g., miscellaneous, safety, industrial, or peace officer/firefighter); membership category (e.g., state, school, or public agency employer); and, the specific provisions in the contract between your agency and CalPERS
CalPERS Disability & Industrial Disability Retirement
This is for employees who can no longer perform the usual duties of their current position due to illness or injury. Industrial disability retirement for safety members, or members whose agency contracts for this benefit, who are unable to perform the usual duties of their current position due to a job-related illness or injury.
If you were an employee who has an injury or illness that prevents you from performing your job duties, you may be eligible for disability retirement. The cause of disability doesn’t need to be related to their employment. If your disability is the result of a job-related illness or injury, and you are a local or state safety member, state peace officer/firefighter, state industrial member, state patrol member, or local miscellaneous member whose employer contracts for this benefit, you may be entitled to an industrial disability retirement.
You should apply for your retirement as soon as you believe you are unable to perform your job due to a disability expected to be permanent or last longer than six months. An employer may also file on behalf of the employee.
CalPERS Service Retirement
This is what most often is considered the “normal” retirement plan. Service retirement is a lifetime benefit. In most cases, you can retire as early as age 50 with five years of service credit. If you became a member on or after January 1, 2013, hyou must be at least 52 years old to retire. All state agencies, including California State University and school employers, are treated as a single employer under the Public Employees’ Pension Reform Act (PEPRA). Public agencies are required to contribute a percentage of the total member payroll as determined by an actuarial valuation. If the new contract requires a local system transfer, your agency must pay a one-time administrative fee of $2,100. Your agency must meet the definition of a “public agency” as defined in the California Public Employees’ Retirement Law (Sections 20056-20057). To receive information, call the CalPERS Customer Contact Center at 888 CalPERS (or 888-225-7377).
CALL NOW TO MAKE AN APPOINTMENT FOR A FREE CONSULTATION