Legal Question in Family Law in California

Retirement benefits earned before marriage are separate property. This is the short answer. The typical retirement benefit of one party to a divorce contains both community property interests and separate property interests. Whatever contributions are posted to the account during marriage are community; and any earnings associated with the community property contributions is also community property and subject to division. The separate earnings and principal will remain separate. In order to divide a retirement benefit in the divorce proceeding you must have a Qualified Domestic Relations Order (QDRO), that satisfies the requirements of ERISA, or ERICA if that is the appropriate system. The QDRO will take the benefit and divide it according to an equation that separates the interests into two accounts, the member account (for the spouse that earned the benefit) and the non member spouse account. The equation can be complex with some union benefits because the benefit is vested more or less depending on the number of "qualified work hours" were contributed, verses the non-qualified work hours, the number of overtime hours, and the percentage of these hours that result in a percentage of vesting, and at what point in history the vesting occurs. Most QDROs end up as a simple division based on - Length of time employed while earning the benefit, divided by the length of the marriage during that time, and then multiplying the result times the entire benefit. Then a further division for community property at 50% each of the result of that equation. Most people do not attempt to divide their own QDRO because things can go wrong. In some cases the Pension or Retirement Fund Administrator must be Joined to the family law case as a party claimant. This way the court can order the administrator to make the divisions and set up the separate accounts. Usually administrators cooperate, but they will often show loyalty to the "member Spouse" as opposed to the non member spouse.