Gilmore rights allow a divorcing spouse to receive a share of community interest held in their spouse’s pension plan. Specifically, this means the spouse can choose to receive these benefits before the participant actually retires. Benefits become eligible at the earliest date in which the employee spouse would be eligible to retire. To enforce your Gilmore rights, you must get a qualified domestic relations order (QDRO). Read on to learn more about Gilmore rights and your California QDRO.

Gilmore Rights Overview

As referenced above, Gilmore rights refer to a divorcing spouse’s community property interest in a defined benefit plan. The option to receive retirement benefits upon the earliest retirement date is governed by federal law and the California court case, Marriage of Gilmore. The court held in this case that an employee who continues to work past his/her retirement eligibility date can be ordered to pay his/her spouse his/her community share of benefits.

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Overview of California QDRO and Gilmore Rights

The non-employee spouse can make a Gilmore election by filing a motion in court demanding the payment of benefits from the retirement plan administrator or employee spouse. In addition, the non-employee spouse can get a QDRO to serve on the plan administrator to enforce his/her right to receive benefits.

Gilmore Rights & QDRO

Pension plans are usually divided by a QDRO. A QDRO directs a pension plan administrator to provide part of a pension payment to the non-employee spouse after a divorce is final.

Because a Gilmore election is irrevocable, a non-employee spouse will not be entitled to share in any future benefit increases. The non-employee spouse however may receive a cost of living adjustment. The non-employee spouse should do an analysis to decide the best time to receive his/her pension share. A non-employee spouse may receive more money if he/she waits until the employee spouse retires. For example, if the employee spouse receives a raise and works more years, his/her pension share may increase and impact the amount the non-employee spouse receives. Spousal support may also be reduced based on a Gilmore election. The non-employee spouse should consider making a Gilmore election once his/her spousal support ends.

Contact A People’s Choice for more information on processing a QDRO for your interest in an employee spouse’s pension. Do not waive your Gilmore rights in a marital settlement agreement without first researching what you could be forfeiting. You may need to get legal advice too. Once, however, you have done your research and decided on the best option, we can help you draft a QDRO to file with the court. We can also help you complete all the required paperwork the pension plan administrator may ask to be filed.

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