Even though your former spouse would like to continue working past their earliest retirement age, you can start receiving benefit payments based on the community interest in the retirement plan 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’s benefits at the earliest date on which the employee would be eligible to retire.
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Spouse’s Retirement Plan
Your spouse’s retirement plan is partly, if not all community property entitling you to an award for one-half of the value. One of the most frequent questions is when can I get my interest.
The former non-employee spouse must file a request for order with a California Family Court for payment of benefits from the plan or the participant. 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. Remember, your former spouse’s retirement plan could change affecting any amount you may receive.
Once the non-employee former spouse begins to receive benefits they will not be entitled to share in any future benefit increases due to the employee’s continued service, increased age, or increased salary. The non-employee spouse will still be entitled to cost-of-living adjustments. Your former spouse’s retirement plan will not be responsible for any increases once you receive your share.
Waiver of Gillmore Rights
Be aware that if you and your former spouse choose to divide your former spouse’s retirement plan that it will be done 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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