How to Split a Pension Plan in California in a Divorce

By Heather Frances J.D.

Though you may not be able to receive benefits from your pension plan until you reach retirement age, your plan typically can be divided up in a divorce proceeding long before your retirement. California courts can split pensions and other retirement plans just as they can split other types of property you and your spouse own. However, retirement plans can require additional paperwork to legally split them.

Separate versus Community Property

In California, property you or your spouse owned before your marriage is considered separate property, meaning that if you owned it before you married, it is generally not divided when you divorce. Pension contributions you made either before or after your marriage are considered your separate property. But contributions you made during your marriage are considered community property, divisible by your divorce court. Thus, if you worked for 10 years at your pension-eligible job before your marriage, you generally get to keep the contributions you made and benefits you earned during that 10-year period.

Agreements and Experts

Pensions can be complicated, especially when you are trying to place values on pre-marriage contributions or predict the future value of the existing pension. Thus, you may wish to hire a pension expert to help you understand the potential value and division of your pension. You and your spouse can reach an agreement on how to divide your pension, with or without the help of an expert. For example, your spouse can completely waive any rights she might have to your pension. If you and your spouse each have a pension, you can agree to each keep your own pension and waive any rights you might have to the other spouse's pension.

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Pensions as a Party to the Case

Some pension plans must be "joined" as a party in your divorce case. Without this joinder, the court cannot issue rulings dividing the plan's benefits, but not all types of plans must be joined. California Form FL-318-INFO lists categories of plans that must be joined as parties to divorce cases. For example, federal government pension plans do not have to be made part of your divorce case, but state plans do.


Some pensions can only be split through a Qualified Domestic Relations Order, the court order explaining the details of the split. To be valid, these orders must meet specific legal requirements, including approval by the judge and the pension benefit provider. Since QDROs can be very complicated, there are no standard California court forms that fill this requirement. For example, QDROs generally must list each spouse's date of birth, Social Security number and address.

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Divorce can impact various types of retirement benefits, making some retirement savings accounts eligible for division and effecting the divorced spouse's eligibility for others. Federal retirement systems generally permit state courts to split federal pensions as part of a divorce, but survivor benefits and Social Security benefits have special rules.

How to Determine Value of 401(k) in a California Divorce

California is a community property state. This means that when couples are dividing property in a divorce, anything earned or obtained during the period of marriage is considered jointly-owned property. Accordingly, unless otherwise agreed upon, a 401(k) account earned during the marriage is split equally between the parties. Since the value of a 401(k) plan is not static and continuously earning investment income, and there are both state and federal laws that mandate specific actions, certain rules apply as to how the account is valued for distribution as part of a divorce.

Divorce Laws in Indiana Concerning Pensions

When Indiana spouses divorce, they can agree about how they want their property divided or the court will divide it for them. Either way, a spouse’s pension may be considered an asset divisible in the divorce according to Indiana law. When the pension is divisible, the court must issue the proper orders to effectively transfer part of one spouse’s pension rights to the other spouse.

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