Though you may not be able to receive benefits from your pension plan until you reach retirement age, your plan typically can be divided up in a divorce proceeding long before your retirement. California courts can split pensions and other retirement plans just as they can split other types of property you and your spouse own. However, retirement plans can require additional paperwork to legally split them.
Separate versus Community Property
In California, property you or your spouse owned before your marriage is considered separate property, meaning that if you owned it before you married, it is generally not divided when you divorce. Pension contributions you made either before or after your marriage are considered your separate property. But contributions you made during your marriage are considered community property, divisible by your divorce court. Thus, if you worked for 10 years at your pension-eligible job before your marriage, you generally get to keep the contributions you made and benefits you earned during that 10-year period.
Agreements and Experts
Pensions can be complicated, especially when you are trying to place values on pre-marriage contributions or predict the future value of the existing pension. Thus, you may wish to hire a pension expert to help you understand the potential value and division of your pension. You and your spouse can reach an agreement on how to divide your pension, with or without the help of an expert. For example, your spouse can completely waive any rights she might have to your pension. If you and your spouse each have a pension, you can agree to each keep your own pension and waive any rights you might have to the other spouse's pension.
Pensions as a Party to the Case
Some pension plans must be "joined" as a party in your divorce case. Without this joinder, the court cannot issue rulings dividing the plan's benefits, but not all types of plans must be joined. California Form FL-318-INFO lists categories of plans that must be joined as parties to divorce cases. For example, federal government pension plans do not have to be made part of your divorce case, but state plans do.
Some pensions can only be split through a Qualified Domestic Relations Order, the court order explaining the details of the split. To be valid, these orders must meet specific legal requirements, including approval by the judge and the pension benefit provider. Since QDROs can be very complicated, there are no standard California court forms that fill this requirement. For example, QDROs generally must list each spouse's date of birth, Social Security number and address.
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