## Facts

- Vera and Earl Gillmore were married for 14 years; Earl worked for Pacific Telephone Company and participated in an employer retirement plan.
- The parties separated in 1978; an interlocutory dissolution decree issued in November 1978 and final judgment entered in January 1979.
- The dissolution judgment divided community property equally but reserved jurisdiction over Earl’s retirement plan.
- The court found Earl would be eligible to retire on April 11, 1979, with a monthly pension of $717.18, and fixed Vera’s community share at about $177.14 per month.
- By April 1979, Earl’s pension was vested and would be matured upon retirement eligibility, but Earl chose to keep working and was not required to retire until age 70.
- In July 1979, Vera sought an order requiring Earl to pay her immediately the $177.14 monthly amount she would have received if he retired when eligible, including arrearages from the eligibility date.
- The trial court denied Vera’s request, retained jurisdiction over the pension, and concluded it could delay payment of Vera’s share until Earl actually retired.
- Vera appealed the denial of immediate and retroactive pension payments.

## Issues

1. Whether a dissolution court abuses its discretion by refusing to order immediate payment of the nonemployee spouse’s community share of a pension when the pension is vested and matured and the employee spouse is eligible to retire but elects to continue working.
2. Whether an employee spouse may unilaterally postpone the nonemployee spouse’s enjoyment of a fixed community pension interest by delaying retirement.

## Decision

- The California Supreme Court reversed and remanded.
- The court held the trial court abused its discretion in refusing to require immediate payments to Vera once Earl was eligible to retire and the pension had vested and matured.
- The court held Earl could continue working, but he could not delay Vera’s enjoyment of her community interest; he must compensate her for the share she lost because of his election not to retire.
- The court left the precise method of implementation to the trial court on remand.

## Legal Principles

- Retirement benefits earned during marriage are community property subject to division upon dissolution, regardless of whether the benefits are vested or nonvested, matured or immature.
- A pension is vested when it cannot be forfeited upon termination of employment; it is matured when the employee has an unconditional right to payment because all conditions precedent have been satisfied.
- When a retirement benefit is vested and matured and the employee spouse is eligible to retire, the employee spouse may not rely on the decision to retire—an act within that spouse’s control—to defeat or postpone the nonemployee spouse’s right to an equal community share.
- The nonemployee spouse has an enforceable right to immediate, current compensation measured by the community share of the benefit available at eligibility; the employee spouse’s continued employment does not eliminate that duty.
- The trial court has discretion on remand to select an equitable mechanism to provide the nonemployee spouse the equivalent of immediate payment (e.g., direct monthly payments or other financial adjustments).
- The nonemployee spouse may elect to seek immediate payments at eligibility or to defer distribution, but deferral cannot be imposed unilaterally by the employee spouse.

## Conclusion

The court held that once a pension is vested, matured, and payable upon the employee spouse’s retirement eligibility, the nonemployee spouse may require immediate payment of her community share (or its equivalent), and the employee spouse cannot postpone that right by choosing to continue working.


In re Marriage of Gillmore, 29 Cal. 3d 418, 629 P.2d 1 (Cal. 1981)