Legal Question in Family Law in California

It allows the spouse to require the pension owner to pay them their share of the pension as soon as the rights mature, even if the pension owning ex-spouse wants to work longer to collect later/more.

When a pension is divided "when and if benefits are received," the nonemployee spouse may insist that she receive her one-half community property interest as soon as the worker is first entitled to retire. If the employee spouse does not wish to retire, he must pay the nonemployee what that spouse would have received had the employee spouse retired. (In re Marriage of Gillmore (1981) 29 Cal.3d 418.) This is commonly called a "Gillmore election."

Under current federal law, a California divorce court may order a private employer to pay the nonemployee spouse their share of the benefits as though the worker had in fact retired. (This is part of what is called ERISA.) ERISA does not cover public pensions. If the worker spouse is a public employee and is under a public pension plan, the Gillmore payout must be directed against the public employee spouse. (In re Marriage of Nice (1991) 230 Cal.App.3d 444.)