- 8 -
of Gillmore, supra at 6. This rule is intended to prevent the
employee spouse from unilaterally depriving the nonemployee
spouse of his or her interest in the retirement benefits by
transmuting community property into separate property. In re
Marriage of Gillmore, 629 P.2d at 4; In re Marriage of Stenquist,
582 P.2d 96, 98 (Cal. 1978); In re Marriage of Fithian, 517 P.2d
449, 455 (Cal. 1974).6 Thus, California law protects the
substance of the former spouse’s community property rights even
though the employee spouse chooses to receive payments which are
not community property, such as income earned after the divorce,
instead of retirement benefits. See In re Marriage of Gillmore,
supra at 6.7
6 Similarly, employee spouses who are eligible to receive
either retirement or disability payments may elect to receive
disability payments. Disability payments are not community
property under California law. In re Marriage of Jones, 531 P.2d
420, 425 (1975). However, 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 not elected to
receive disability payments. In re Marriage of Stenquist, 582
P.2d 96, 100-102 (Cal. 1978).
7 In In re Marriage of Gillmore, 629 P.2d at 6 n.7 (quoting
Note, “In re Marriage of Stenquist: Tracing the Community
Interest in Pension Rights Altered by Spousal Election”, 67 Cal.
L. Rev. 856, 879 (1979)), the California Supreme Court included
the following analysis:
“[F]rom an economist’s perspective, the employee
spouse’s compensation for continued employment is not
the full amount of his paycheck. Rather, his
compensation is only that amount above the pension
benefits that he will not receive while he continues
(continued...)
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