Can My Spouse Claim My Pension Benefits as Part of Our California Divorce?

California is a community property state, so a spouse is entitled to half of the property a married couple gains during their marriage. It doesn’t matter whether that’s real estate, a pickup truck, stocks, or pension benefits. Through an agreement reached before or during the divorce process, the spouse not earning the pension can waive their rights to it, but they should receive something in return. Consulting a Rancho Cucamonga divorce attorney can help ensure a fair division of assets. The Law Firm of Taylor B. Warner, APLC, talks to clients or potential clients daily about divorce issues, including property division.

Over the past nine years of practice, Taylor has met with many people in family law cases, many with questions about retirement benefits and pensions. Working with a reputable divorce lawyer can provide the necessary guidance and representation. The Law Office of Taylor B. Warner, APLC, represents family law clients in San Bernardino, Los Angeles, Riverside, and Orange Counties. If you are specifically looking for a divorce lawyer in Rancho Cucamonga, the experienced team at this firm can assist you with your case.

The Pension May Be Considered Community Property, Half Owned by Each Spouse

All retirement benefits are community property in California. State divorce law generally requires that it be evenly divided. For a pension, community property is your contributions and the service credit you accrued and or purchased during your marriage.

The spouses may agree, or a judge may order the former spouse to get a payout of half the benefits when the vested spouse retires. Another option is that the vested spouse receives all the pension benefits, while the other spouse receives more than half of other community property. This could be negotiated in a pre- or postnuptial agreement or during divorce settlement negotiations.

Being Pro-Active Could Prevent This from Becoming an Issue

Pensions have become rare, with defined contribution plans (like 401ks) much more common than defined benefit plans like pensions. Prenuptial (before the wedding) and postnuptial (after the wedding) agreements can make sense if this isn’t your first marriage or if you or your spouse stays with the employer long enough, they may qualify for benefits.

• Prenuptial or Premarital Agreements

California law allows a wide range of property issues to be included in one of these contracts, including, potentially, pension rights. Rarely do people planning on marrying also plan on divorcing, but they understand it may happen. The more you can talk about and agree upon before your marriage, the fewer issues there will be if the marriage ends in divorce.

There are some standards to be met for a prenuptial agreement to be enforceable:

• It must be made voluntarily
• The terms can’t be clearly unfair, one-sided, and unreasonable (or unconscionable)
• The parties fully disclosed information concerning their property and finances

The need for full disclosure can be voluntarily waived (though it’s never a good idea to agree to that). Though it’s not required, both parties should have their own divorce attorneys involved to independently answer questions, give advice, negotiate terms if necessary, and ensure the agreement meets legal requirements.

• Postnuptial Agreements

These can be useful if, for whatever reason, the parties didn’t execute a prenuptial agreement, one spouse gets a substantial inheritance or starts earning a much higher income, or the two fear their marriage may end.
Property issues like pensions can be part of such an agreement. It must be written, signed, and notarized. The postnuptial agreement is valid if it’s freely agreed upon (one party is not forced or coerced into signing), the terms are fair (not unconscionable), the parties fully disclose financial and property information and the agreement uses clear and understandable language.

Divorce Negotiations Can Impact Pension Payments

Community property laws form the baseline for property distribution in a divorce. There’s room for negotiations if some property is more important to one spouse and less so for the other. The spouse with the pension may give up their rights to a home or be willing to accept a reduced share to collect their full pension benefits. Spouses may also put into the mix property that they might otherwise be able to keep (separate property) to receive or protect what would otherwise be community property.

Taylor Warner is Here to Help

If you have any questions about divorce or you decide it’s time to end your marriage, contact the divorce lawyers at the Law Firm of Taylor B. Warner to understand all of the issues that can come up and your best options to handle them. You can call our office at 909-466-5575 for a consultation about divorce so we can discuss the process, your rights, and how to best protect them.

Taylor Warner

Taylor has always been an advocate. Growing up the middle child with an older and a younger brother, Taylor developed a strong voice and personality and has always felt strongly about helping others. Becoming a lawyer seemed to fit Taylor’s personality and character – she is a strong leader and a bold advocate. Learn more here.