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.