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
And that's how it's done.
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-Could you explain your situation a little more?