How Divorce Affects OCERS Retirement Benefits
It’s a commonly quoted statistic that ‘more than 50% of marriages end in divorce.’ But attorneys in California suggest that our state’s divorce rate is as high as 60% – placing it at 10% over the national average.
Additionally, California is a “Community Property State’ – one of only nine in the U.S. along with: Arizona, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Community property law requires that a divorcing couple split all of their assets that were acquired while they were domiciled in the state ‘50/50’.
So, between the high California divorce rate and the complex Community Property laws, OCERS workers need to be well-informed about the effects divorce may have on their retirement benefits. In this article the experienced OCERS disability retirement attorneys at Cantrell Green answer some frequently asked questions about divorce and OCERs retirement benefit.
Disclaimer: This information is for general purposes only and may not address the specific circumstances of your unique case. Division of retirement benefits by a Domestic Relations Order involves complex Community Property laws, marital or domestic partner rights, and tax issues. So always seek out the advice of an experienced attorney to see how the law applies to your unique situation.
Are OCERS retirement benefits subject to Community Property Law?
Yes, all or part of an OCERS retirement benefit may be subject to California’s Community Property laws. It is important to remember that a divorce settlement reached by an agreement between parties can vary or depart from the 50/50 rule. And, OCERS has expressly stated on their website that “As long as a divorce order does not violate our plan, OCERS will not take a position on any divorce issues affecting a retirement benefit.”
But, if the parties cannot agree on an amicable division of the OCERS retirement Benefits (and other assets) then the Family Court to decide what interest a member’s spouse and a former spouse have in any retirement allowance and other OCERS benefits. And, typically they will follow the 50/50 rule – awarding half of the proceeds that accumulated during marriage to the non-OCERS spouse if there is no written agreement to the contrary.
However, the law does not require that each individual asset be equally or “split down the middle” between both spouses or registered domestic partners. Rather, Community Property law requires that the “net value” of the assets received by each spouse or registered domestic partner is equal. In other words, the law only requires that each side gets 50% of the sum total of the assets (unless the parties agree otherwise).
Are disability retirement benefits treated the same as retirement benefits in a divorce?
No, typically not. Under California law, disability retirement benefits are generally not considered community property until the OCERS member reaches the point where the OCERS employee would have been eligible for a service retirement had he or she continued working.
At that point, when the member would have qualified for retirement benefits due to age/service credits, the former spouse generally has a right to a community property share of the benefit.
How is the division of OCERS retirement benefits calculated under Community Property Law?
Division of OCERS pension and retirement benefits presents special problems if the benefits accrued from employment both before and during marriage or registered domestic partnership – or before and after separation.
Remember that the non-OCERS spouse is only entitled to 50% of benefits that accumulate during the marriage or domestic partnership. But benefits attributable to pre-marriage or post-separation employment are considered “separate property” and 100% belong to the retired OCERS employee.
Typically, the Family Court Judge will allocate the pension under the ‘Time Rule’. To do this, the court awards the former spouse or registered domestic partner an amount equal to a percentage of each pension check. This percentage is calculated by dividing the years when the spouses or registered domestic partners lived together (married or as registered domestic partners) while the member was participating in the Pension Plan by the total number of years of service credit that the member has accrued while participating in the Plan.
Can the non-member spouse start getting an OCERS check before the member retires?
No. OCERS does not split accounts, and does not make direct payments to the former spouse (or registered domestic partner) until the member retires – even if the spouse has a court order that allows for a pre-retirement payment from the member. The member and former spouse must arrange – typically through their divorce attorneys – for any pre-payment of funds between themselves.
OCERS will not make any payments to a member or a former spouse/registered domestic partner until the member either; (1.) retires from employment; or (2.) terminates their OCERS employment and cashes-out his or her retirement contributions.
And, for a former spouse or registered domestic partner to be paid directly by OCERS, a ‘Joinder’ will need to be filed in Family Court listing OCERS as a party to the divorce case – at which time OCERS will require a Domestic Relations Order.
Your attorney can obtain the necessary Joinder documents from the Family Court in the County where the Dissolution case was filed.
Once a Joinder has been served on OCERS, they are required by law to withhold a percent of any check based on the division of community property set for in the Court Domestic Relations Order. And OCERS will not release any funds being withheld until we receive a Domestic Relations Order or the Joinder is dismissed.
OCERS Disability Retirement Attorneys
Our experienced OCERS disability and retirement attorneys have helped hundreds of OCERS public employees, and we would be happy to talk to you.
We are one of very few Los Angeles area law firms that are highly specialized in Public Employees Disability Retirement. Our attorneys have filed hundreds of successful disability retirement applications and appeals and have obtained millions of dollars in disability retirement benefits for our clients.
Our attorneys can help disabled public employees obtain their disability retirement benefits from any public employee retirement system in California. If you are an injured police officer, firefighter, teacher, administrator or other public employee, who is applying for or appealing disability retirement benefits, call us today.
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This article applies to members of Orange County Employees’ Retirement System (OCERS); and does not reflect the rules, laws or regulations governing how other public retirement systems are administered. If you have question about another public employee retirement system, find your system, below – or call our office at: 562-622-4800
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