Start receiving your interest in your spouse’s pension or retirement plan even if they decide not to retire.
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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.
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