California QDRO & Gilmore Rights

If a spouse has obtained a defined benefit plan while married, upon divorce, both spouses will have certain rights to such benefits. Federal law requires a non-employee spouse to obtain a Qualified Domestic Relations Order to receive retirement benefits upon divorce. Read on to learn more about Gilmore rights and California QDROs.

Gilmore Rights Overview

Gilmore rights refer to a divorcing spouse’s community interest in a defined benefit plan. Gilmore rights allow a divorcing spouse to receive his share of retirement benefits before his spouse formally retires. A spouse can request to receive his community share of benefits at the earliest date in which the employee-spouse is eligible to retire. Gilmore rights derive from the Marriage of Gilmore. In this case, the court determined that an employee who continues working past his retirement eligibility date can be ordered to pay his former spouse his community share of retirement benefits.

An advantage of requesting a Gilmore election is that the non-employee spouse can receive the retirement benefit independent of the employee spouse’s receipt of benefits.

California QDRO & Gilmore Motion

A Qualified Domestic Relations Order (QDRO) is a court order that divides retirement plan benefits in a divorce.  A QDRO contains specific instructions to the retirement plan administrator as to how a defined benefit plan should be divided.

A Gilmore motion may be appropriate when: 1) an employee is eligible to retire and can commence retirement benefits from a defined benefit plan; 2) the employee chooses not to retire; and 3) the retirement plan refuses to pay any benefits to the non-employee spouse. Filing a motion allows the non-employee spouse to collect the retirement benefits. A motion can be filed against the retirement plan or the participant.

Because a Gilmore election is irrevocable, the non-employee spouse will not receive a portion of future benefit increases. It is important for a spouse to analyze her retirement interests prior to filing a Gilmore election. Doing so will ensure the non-employee spouse receives the most compensation possible.

Contact San Diego Esquire for more information about your retirement benefits and divorce. We can help you prepare and file legal documents to obtain a QDRO. Review Family Law Form  FL-318 INFO for more information about the types of retirement plans that require a QDRO.


About the Author:

Kymeshia Morris Esq., founder of San Diego Esquire has practiced law in California since 2012. During her career as a lawyer, she has co-authored legal publications and self-help articles. Kymeshia is dedicated to providing affordable legal services to California businesses and individuals.

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