Obtaining Your Share of Your Ex-Spouse’s Pension


Your Ex-Spouse’s Pension Has Matured but your Community Property Share is not being paid, what should you do?

Your divorce was finalized, you have a Judgment and a Qualified Domestic Relations Order (QDRO), or its equivalent, on your ex-spouse’s Pension, the pension has matured and you’re not getting your community property share because your ex-spouse has decided not to retire when eligible. You are likely eligible to bring a Gillmore Election Motion to get your payments going, even if your ex-spouse chooses not to retire.

1. What is a Gillmore Election Motion?

Marriage of Gillmore (1981) 29 Cal.3d 418 was a case which is now cited in support of a motion to compel payment of benefits. It is clear and broadly construed for the proposition that the choice as to when community property payments in a matured pension should begin is a property right which belongs to the non-employee spouse. (Id. at 424-425; see also Marriage of Cornejo (1996) 13 Cal.4th 381, 383.) This means the ex-spouse who was awarded his or her half of their former spouse’s pension has a right to seek Gillmore payments now because their ex-spouse has reached the age of retirement.

2. Waiver Must Be Explicit

There are cases in which parties to a divorce have negotiated and waived Gillmore by agreement. However, to be effective, the waiver must on its face manifest the parties’ clear intention that the employee spouse has full control over the date pension payments to the non-employee spouse shall begin. (Marriage of Crook (1992) 2 Cal.App.4th 1606, 1608, 1612 (“unless a marital settlement agreement (MSA) contains an express unequivocal waiver, upon the employee spouse’s eligibility to retire, the non-employee spouse retains the right to receive his or her share of a community property pension”).

3. Date of Filing Motion Starts Time for Payment

When an employee spouse who becomes eligible for retirement continues to work and the non-employee spouse chooses immediate payment by means of a Gillmore election, the non-employee spouse is entitled to obtain payment as of “the date on which the non-employee spouse files a motion seeking immediate payment.” Cornejo, 13 Cal.4th at 387.

4. If the Pension Is Public, Nonmember Spouse Seeks Payment from Employee Spouse

A Gillmore election motion may be brought against the employee spouse or the pension plan. In cases where the pension plan is private, it may make sense to pursue payment from the plan. However, in the case of public pensions, California law supports pursuing payment from the employee spouse. Specifically, Family Code § 2610(b)(2) provides that a court shall not make an order that requires a pension plan to … “make payments of benefits to any party at any time before the member retires . . . unless the plan so provides.” In cases where the worker spouse is a public employee and is under a public pension plan, the Gillmore election is typically be directed against the public employee spouse. (See, In re Marriage of Nice (1991) 230 Cal.App.3d 444, 450.)

Some Possible Actions:

If you have not expressly Waived or negotiated an agreement in which your Gillmore rights have been affected:
• Bring (File) a Gillmore Election Motion
• Obtain an agreement from your ex-spouse to pay your monthly portion of the retirement benefits directly to you from his or her continued employment without the need to proceed with motion;
• Consider offering to have your ex-spouse buy you out of your community property interest; or
• Advise your ex-spouse to retire and let the pension plan deal with distribution.

Can Immigration Status be used against me?

3d illustration of a transparent map of the United States sitting on top of a green card hovering above a reflective gray surface

Can my immigration status be used against me in in my personal injury or wrongful death claim?

We are pleased to advise our clients that as of August 17, 2016, the answer is no.

Our California State Legislature passed Assembly Bill 2159 and Governor Brown has signed it into law.

The bill reads:

SECTION 1. Section 351.2 is added to the Evidence Code, to read:

351.2. (a) In a civil action for personal injury or wrongful death, evidence of a person’s immigration status shall not be admitted into evidence, nor shall discovery into a person’s immigration status be permitted.


Questions? Comments? Contact us here.



Can I Sue the Owner of the Car That Hit Me?


In car accidents where the driver and the vehicle owner are not the same person, we are often asked:

Can I sue the owner of the car that hit me as well as the driver?

The answer may be “yes”.

Depending on the facts of your case, you may be able to sue the owner of the car as well as the driver. This is often referred to as a Negligent Entrustment of Motor Vehicle claim or cause of action.

What must be proven in court is most often defined by the Jury Instructions that would be given if a trial were to occur. With this question it would be wise to look at the Judicial Counsel’s Jury Instruction (“CACI”) No. 724 (https://www.justia.com/California Civil Jury Instruction No. 724) which sets forth the elements for a claim of negligent entrustment. The Plaintiff (the injured party with the claim) must prove all of the following:

  1. That [name of driver] was negligent in operating the vehicle;
  2. That [name of defendant] owned the vehicle operated by [name of driver]/ had possession of the vehicle       operated by [name of driver] with the owner’s permission;
  3. That [name of defendant] knew, or should have known, that [name of driver] was incompetent or unfit to drive the vehicle;
  4. That [name of defendant] permitted [name of driver] to use the vehicle; and
  5. That [name of driver]’s incompetence or unfitness to drive was a substantial factor in causing harm to [name of plaintiff].

Most often, you, the injured party, would not have information or facts regarding the elements required, such as “the owner’s permission” –  that the owner knew or should have known that the driver was incompetent of unfit to drive the vehicle, or “even if the owner permitted the driver to use the vehicle.” It is most often through investigation and formal litigation discovery that these elements are disclosed and the facts supporting the elements are either established or not. In order to accomplish this discovery, lawyers often employ private investigators and/or commence litigation to conduct the necessary formal discovery.

This issue can be very complicated and you should consult with an attorney and review all of the facts and documents to determine how they apply to your case.

********** This post is intended to encourage discussion on this topic and does not constitute legal advice. All individuals who would like further information are advised to do additional research, obtain qualified legal advice and/or retain an attorney. **********