Is it Time For Gillmore to Go?
James M. Crawford, Jr.
James M. Crawford, Jr. is an employee benefits attorney who for over 34 years has been assisting family law attorneys with the characterization, apportionment, and division of qualified and non-qualified retirement benefits and other forms deferred compensation. He has presented on the subject for various organizations, including the ACFLS, CEB, AAML, the CPA Society, California and Texas State Bars Advanced Courses, McGeroge School of Law, and the Judicial Institute of California. He is a co-author of the chapters on the characterization and division of employee benefits for CEB’s Marital Settlement and Other Family Law Agreements, and for a similar publication of Matthew Bender; and has served as CEB’s Sr. Editorial Consultant for Dividing Pensions and Other Employee Benefits in California Divorces. Mr. Crawford is also a co-author of "Crossover Issues in Estate Planning and Family Law," published in 2011 by CEB, and updated annually. Mr. Crawford has written a number of articles for the California and Texas bar associations regarding selected issues frequently encountered in QDRO practice.
In re Marriage of Gillmore, 29 Cal. 3d 418 (1981) (Gillmore), the California Supreme Court held that when an employee spouse qualifies for early retirement under his1 pension plan but is not yet ready to retire; the non-employee spouse may still receive her share immediately by making what has come to be known as a "Gillmore demand." In response, the employee spouse must either pay the nonemployee spouse the actuarial value of her interest2 using his own funds or end his career earlier than planned and begin living on his portion of the early retirement benefit. According to the court, the nonemployee spouse’s right to access her share before the employee spouse has retired derives from the "fact" that the value of her interest is known,3 the "fact" that this value will be reduced if payment is delayed,4 and the "settled principle that one spouse cannot, by invoking a condition wholly within his controlâthe timing of his retirementâimpair the interest of the other spouse."5 This ruling substantially changed community property law as it relates to pension rights.