Will my spouse receive part of my CalSTRS pension if we divorce?
Under California law, retirement benefits are considered community property, meaning that you each own 50% of your pension as a joint asset. According to CalSTRS, community property is the contributions (funds) you contributed, and the service credits you accrued and/or purchased while married or in a domestic partnership.
Generally, your former spouse’s community property interest may be up to 50% of your pension benefits. It is important to know that CalSTRS will put your pension benefits on HOLD until the community claim is resolved, once their office is informed that a divorce has been filed and the pension division has not yet been ordered by the court. So, if you are already retired and receiving CalSTRS pension benefits, 50% of your monthly allowance is held until CalSTRS receives a special order from the court called a Qualified Domestic Relations Order.
How will my spouse make a claim against my pension?
If you are a teacher with a CalPERS pension plan, you will need a formal court process upon either a divorce, a legal separation, or a dissolution of domestic partnership to divide that asset. At any time after the legal APetition@ is filed with the court, the non-employee spouse or his/her attorney can place a community property claim against your pension. The process is called filing a AJoinder@ of the pension plan to the dissolution or legal separation matter.
If a claim is made, how much will my spouse receive?
If you have been contributing to your CalSTRS pension plan during the marriage, there is a community property interest (meaning your spouse owns a portion of that asset). Even though you cannot access that pension until you retire, your spouse can receive a portion of it when you retire. But how much of it? There is one formula that is commonly used called the ATime Rule.
For example, let’s assume you have been in the pension plan for 25 service years, and your pension benefit will be $7,500 when you retire. If you have only been married for 12 of those 25 years of service you would use the fraction of 12 over 25. So, you would divide the 12 years by 25 years and get 0.480. Then you multiply that 0.480 times your pension benefit ($7500), and you get $3600.
In summary, if your monthly pension is $7500 and you were married 12 of the 25 years of participation, then $3600 of it is community property and your spouse is entitled to receive 50% of that amount ($1800 per month). This is only an example. There may be other ways to divide the pension, which are not the subject of this blog.
What should be my next step?
Contacting a family law attorney to address your needs would be extremely important. CalSTRS requires Qualified Domestic Relations Order to have specific language approved by them, filed with the court, and then served on their office. Attorneys coordinate with the CalSTRS office, and sometimes hire actuaries or other experts to calculate the pension amount and draft the QDRO form to comply with CalSTRS rules. These Orders must be filed with the court on special pleading paper, signed by all the parties, and then signed by the Judicial Officer.
The CalSTRS website does provide information if you want to do further research on your own. However, CalSTRS cannot give you legal advice about which specific division method to select, and they require the QDRO to comply with their guidelines.
Our phone number is 707-575-5162. If you would like to discuss your unique situation or have further questions, please feel free to contact our office to schedule a consultation.
