- 7 -
Marriage of Gillmore, supra at 8; In re Marriage of Brown, supra
at 567. If pension benefits are distributed through periodic
payments, the nonemployee spouse may be entitled to up to one-
half of each payment; the allocation depends on the percentage of
the employee spouse’s working years that the parties were
married. In re Marriage of Gillmore, supra at 6; In re Marriage
of Brown, supra at 562-563.
In some situations, people may choose not to begin receiving
retirement benefits when they are first eligible to do so.
Postdivorce earnings are separate property, not community
property. Cal. Fam. Code sec. 771 (West 2004) (earnings and
accumulations of each spouse following date of separation are
that spouse’s separate property). Nonetheless, in these
situations under California law, a formerly married person is
entitled to payments based on the amount of pension benefits to
which the employee spouse would have been entitled if the
employee spouse had retired when first eligible. In re Marriage
5(...continued)
Petitioner’s retirement plan at issue in this case is a
defined benefit plan. The record contains no evidence that
petitioner, his former spouse, or the superior court sought to
determine the present value of the former spouse’s interest in
petitioner’s retirement plan. See Projector, “Valuation of
Retirement Benefits in Marriage Dissolutions”, 50 L.A. Bar Bull.
No. 6, at 229 (1975) (valuation of a defined benefit plan
includes an estimate of the value of the pension measured at the
future retirement date, discounting for the time value of money,
mortality, and vesting) (cited in In re Marriage of Gillmore,
supra at 4 n.4).
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