Start Receiving Your Interest In Your Spouse’s California Pension, California IRA, or California 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. Affordable rates and payment plans are also available. Call now 916-443-1267 for your free consultation.
Retirement plans are often one of the most significant asset that should be addressed and divided during divorce.
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.
CALL NOW TO MAKE AN APPOINTMENT FOR A FREE CONSULTATION