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Ask Lawrence D. Gorin Your Own Question

Lawrence D. Gorin
Lawrence D. Gorin, Family Law Attorney
Category: Family Law
Satisfied Customers: 1500
Experience:  30+ years family law experience. QDROs, UIFSA, UCCJEA expertise.
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I will retire from OCERS with 32 years of service next year.

Customer Question

I will retire from OCERS with 32 years of service next year. My pension will be roughly 120,000 per year. Going through a divorce right now after a 10 year marriage. What is the formula that is used to define payment amounts?
Submitted: 1 year ago.
Category: Family Law
Expert:  Barrister replied 1 year ago.
Hello,
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Essentially anything that you broght into the marriage would be considered your separate property and anything acquired during would be community and subject to division.
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With that said, the value of the account 10 years ago would be considered your separate money and only the additions during the marriage would be subject to division. It may require some calculations, but you should be able to get the historic valuation of the account 10 years ago to use as your baseline.
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Then any amounts contributed and appreciation on those amounts would be split equally. So for example, if the account was worth $200K ten years ago and is now worth $360K with you having contributed $100K and 60K appreciation, then the $200K plus $40K of the $60K would be your separate property. You would only have to split the $100K and the $20K appreciation on it.
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Thanks.

Barrister

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Please remember to rate my answer. I will gladly continue our discussion until you have gotten the information you need.

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If you need further help, just reply to me via the “REPLY” or “CONTINUE CONVERSATION” button.

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Please keep in mind that I am trying to help you understand and resolve your situation. I don't make the laws, I am just reporting or interpreting them, so the outcome may not be what you had hoped for.

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Please be patient as I am typically working with several customers at any given time. Some answers take 5 minutes, some 35 minutes. But rest assured, I will get back to you.

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I am not entering into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. With that in mind, do not post any specific information you do not want available for public viewing. The information provided is not a substitute for a local attorney’s legal advice.

Customer: replied 1 year ago.


Hello - I appreciate your response to my question but you did not provide me with an answer that I needed.


This is a public safety defined benefit plan. From what I have been told is that the EX is entiltled to a percentage of my pension based on the amount of years at my retirement minus the years married. Please, I need to know the formula that is used here in California in order to get a rough estimate of what I will be receiving once her share is deducted.


 


Thanks,


 


Alan Robinson

Expert:  Barrister replied 1 year ago.
I apologize, but I don't know the exact formula that they would use to calculate the division.
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I will opt out and open the question so other experts can assist.
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No need to reply as it will only lock the question to me and prevent other experts from assisting.
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Thanks
Barrister
Customer: replied 1 year ago.


Thank you - I look forward to hearing an informative response to my query.


 


 


Regards,


 


Alan

Expert:  Lawrence D. Gorin replied 1 year ago.
ANSWER:
First, you need to review Calif. Family Code § 2510 regarding California community property procedures for dividing retirement and pension interests incident to dissolution of marriage.

Second, you need the decision of the California Supreme Court in In re Marriage of Broum (1976) 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561. This is the leading California case dealing with division of retirement benefits accrued by the employee spouse as deferred compensation for services rendered. The right to retirement benefits "represent[s] a property interest; to the extent that such [a] right[] derive[s] from employment" during marriage before separation, it "comprise[s] a community asset...." (Id. at p. 842, 126 Cal.Rptr. 633, 544 P.2d 561.) "Throughout our decisions we have always recognized that the community owns all [such] rights attributable to employment during marriage" before separation. (Id. at p. 844, 126 Cal.Rptr. 633, 544 P.2d 561.)

The basic approach, absent compelling reasons for doing otherwise, is award the plan participant's spouse (let's assume wife) 50% of the community property portion of the pension asset. The community property portion is determined by application of the "coverture fraction" formula (sometimes referred to as the "time rule"). The numerator is the number of months of marriage (prior to separation) coinciding with plan participation. The denominator is the total number of months of plan participation as of the commencement of benefit payments to either husband or wife, whichever first occurs.

So..... If you and spouse were married to one another for 120 months (ten years) prior to separation and all 120 months coincident with plan participation, the coverture fraction numerator would be 120. And if at the time of retirement you had been a plan participant for 384 months (32 years), the resulting coverture fraction --- the community property share ---would be 120 / 384, or .3125. Fifty percent (50%) of .3125 is .15625, which (rounded off) is 15.63%. Net result: Wife is awarded the right to receive 15.83% of each monthly pension benefit amount (with corresponding COLA adjustments).

Under California case law precedents, the divorce court must apportion an employee spouse's retirement benefits between the community property interest of the employee spouse and the nonemployee spouse and any separate property interest of the employee spouse alone. (See, e.g., In re Marriage of Adams, supra, 64 Cal.App.3d at pp. 186-187, 134 Cal.Rptr. 298; In re Marriage of Bergman, supra, 168 Cal.App.3d at pp. 748-751, 214 Cal.Rptr. 661.) It has discretion in the choice of methods. (See, e.g., In re Marriage of Adams, supra, 64 Cal. App.3d at pp. 186-187, 134 Cal.Rptr. 298; see also In re Marriage of Henkle (1987) 189 Cal.App.3d 97, 99, 234 Cal.Rptr. 351; In re Marriage of Poppe (1979) 97 Cal.App.3d 1, 8, 158 Cal.Rptr. 500 (per Kaufman, J.).) Such methods include the time rule, which is apparently the one that is employed most frequently. (In re Marriage of Henkle, supra, 189 Cal.App.3d at p. 99, 234 Cal.Rptr. 351; In re Marriage of Poppe, supra, 97 Cal. App.3d at p. 8,158 Cal.Rptr. 500.) Whatever the method that it may use, however, the superior court must arrive at a result that is "reasonable and fairly representative of the relative contributions of the community and separate estates." (In re Marriage of Poppe, supra, 97 Cal.App.3d at p. 11, 158 Cal.Rptr. 500.)

The use of the time rule is not unreasonable when the "amount of the retirement benefits is substantially related to the number of years of service." (In re Marriage of Poppe, supra, 97 Cal. App.3d at p. 8, 158 Cal.Rptr. 500; accord, In re Marriage of Judd, supra, 68 Cal.App.3d at pp. 522-523, 137 Cal.Rptr. 318.)
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And that's how it's done.

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Be sure to "rate" the answer. That's the only way I get paid for the time and expertise expended in responding to your inquiry. Thanks in advance.




-Could you explain your situation a little more?
Expert:  Lawrence D. Gorin replied 1 year ago.

Glad to have been of help.

I hope my response to your inquiry answered your concerns and provided you with the information you were seeking.

I note that you have not yet "rated" the answer. Please remember to do so, as that is the only way that I get receive compensation for the time and expertise expended in responding to your inquiry. Again, thank you in advance. And thank you for your service to our country.

L.D. Gorin
Beaverton, Oregon

Expert:  Lawrence D. Gorin replied 1 year ago.
I note that you have not yet "rated" the answer. Please remember to do so, as that is the only way that I get receive compensation for the time and expertise expended in responding to your inquiry. Again, thank you in advance.

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