John Michael Dunkin - Page 7

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          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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