A recent case from the Third District Court of Appeal addressed an interesting question. If a marital settlement agreement called for a wife to receive $475 monthly as her community portion of her ex-husband’s military retirement pay, what happens if the husband elects to receive a form of military disability compensation (which is typically separate property) instead of his retirement (which is community property)? In this case, the court concluded that the wife was entitled to her $475 per month, regardless of what the husband elected. The payment represented what would have been her portion of the retirement pay, and she did not lose her right to receive that money simply because the husband made a voluntary and unilateral choice not to receive that retirement.
Often, one of the most contentious issues in a divorce proceeding is the division of marital property. California law clearly states that courts shall divide the community estate of the parties equally. Therefore, it is incumbent upon the court and the parties to identify, characterize, and place a value on the assets and debts to be divided. Assets include many items, including the family home, bank accounts, stocks, and retirement benefits. Identifying all of the accumulated marital assets is a complicated procedure, especially when spouses do not agree on the characterization of each item. To be sure that your financial rights are protected in a divorce, you are encouraged to contact an experienced family law attorney from the local San Diego area.
In a recent controversial divorce case, the California court of appeals was asked to review only one question: how to divide the couple’s retirement benefits. Here, the parties were married in 1994 and separated in 2010 when they filed for divorce. Throughout the marriage, both the husband and the wife were attorneys who worked in separate positions. The husband worked in a private practice, while the wife worked for the LA County District Attorney’s office. He made contributions to Social Security via mandatory payroll deductions, while she participated in a county retirement plan (a defined-benefit retirement plan).