Yes, one spouse’s retirement pension is subject to division between the two spouses when they divorce, even if the spouse with the pension has not yet retired when the divorce takes place, according to the case of In Re Marriage of Brown.

When a couple divorces in California, all the property the couple has acquired will be divided between the two spouses under the principles of community property, meaning that each spouse is entitled to half of the property the couple acquired during their marriage. This includes property such as income and retirement benefits. A pension is one kind of retirement benefit and it is a form of delayed payment from an employer for an employee’s continued services that is paid to the employee upon the employee’s retirement.  

California case law classifies this kind of deferred compensation as a form of property, and since it is earned during a spouse’s marriage, it is subject to division between the two spouses upon a divorce. This is the case even if the employee has not retired at the time of the divorce, meaning the employee is not getting paid the pension benefits yet. The non-pension earning spouse is still entitled to a portion of the pension that was earned during the marriage. 

For example, upon a divorce, a wife is entitled to share in the husband’s pension rights, even if he has not retired yet, to the extent that the pension was earned by work he did during the length of the marriage. If the husband has not retired at the time of the divorce, a court will decide either to divide the current value of the pension or award each spouse their portion of the pension when it is paid to the husband. 

It is important to hire an attorney that is aware of all possible benefits you should be entitled to.  The Law Offices of Michael S. Carrillo will explore any and all options in order to get you the best results on your  divorce case. Give us a call today for a free consultation and to see what he can do for you on your case. (626) 799-9375.