In Re Marriage of Cornejo

In In re Marriage of Gillmore (1981) 29 Cal.3d 418 [ 174 Cal.Rptr. 493 , 629 P.2d 1 ] (hereafter sometimes Gillmore), we held that retirement benefits that an employee spouse earns during a marriage to a nonemployee spouse are community property. On dissolution of the marriage, such benefits are subject to equal division. When the employee spouse becomes eligible for retirement, he may choose to retire and receive benefits or to continue to work. That is to say, he may retire and thereby commence drawing from the stream of income that then begins to flow, with the result that the nonemployee spouse may start to draw her share of the community property interest as well; or he may continue to work and thereby forgo the income he would have drawn, with the result that the nonemployee spouse is compelled to forgo what would have been her share as well. In brief, the employee spouse has an initial choice of retiring or continuing to work. He is not permitted, however, to adversely affect the nonemployee spouse’s share by putting off his retirement. To prevent such an outcome, the nonemployee spouse too is allowed a choice. If the employee spouse continues to work, she may…

Under California community property law, a spouse’s retirement benefits are community property to the extent the spouse earned them by employment during the marriage. Upon dissolution of the marriage, such benefits, like other community property, are to be divided equally between the spouses, even though the employee spouse may not yet have retired or even have become eligible for retirement. Because immediate division is frequently impractical in these cases, actual division of community property retirement benefits may be postponed until the employee spouse retires or becomes eligible to retire. In that situation, the other spouse may opt to begin receiving his or her community share of the retirement benefits at any time after the employee spouse becomes eligible to retire. At issue in this case are the legal requirements for the exercise of this option.

*389 The majority holds that a nonemployee spouse becomes entitled to payment of his or her community property interest in the employee spouse’s retirement benefits as of the date on which he or she files a motion in the superior court seeking immediate payment. I disagree. In my view, a non-employee spouse should not be…

In In re Marriage of Gillmore (1981) 29 Cal.3d 418 [ 174 Cal. Rptr. 493 , 629 P.2d 1 ] (hereafter sometimes Gillmore ), we held that retirement benefits that an employee spouse earns during a marriage to a nonemployee spouse are community property. On dissolution of the marriage, such benefits are subject to equal division. When the employee spouse becomes eligible for retirement, he may choose to retire and receive benefits or to continue to work. That is to say, he may retire and thereby commence drawing from the stream of income that then begins to flow, with the result that the nonemployee spouse may start to draw her share of the community property interest as well; or he may continue to work and thereby forgo the income he would have drawn, with the result that the nonemployee spouse is compelled to forgo what would have been her share as well. In brief, the employee spouse has an initial choice of retiring or continuing to work. He is not permitted, however, to adversely affect the nonemployee spouse's share by putting off his retirement. To prevent such an outcome, the nonemployee spouse too is allowed a choice. If the employee spouse continues to work,…