The answer to this pension question is found in the recent case of Marriage of Peterson 16 DJDAR 225 (1-11-16). Namely, the pension benefits earned during marriage are community property and subject to the equal division requirement of Family Code § 2550. On the other hand, the United States Constitution gives Congress the right to preempt state law and California law in reference to the issue of Social Security. Social Security is separate property under federal law and federal law specifically limits the ability of courts to assign social security benefits in a divorce proceeding. In Peterson, the Court recognized that congress intended “… to create a federal retirement benefit which is immune from division by state courts in marital dissolution.”
Although Social Security is not community property, a former spouse may be entitled to benefits under the Social Security Act if the marriage lasted for 10 years from date of marriage to the date of divorce. In Divorce Court, pensions and social security are important considerations, particularly for older couples or couples with long term marriages. For advice in these matters you should consult a family law attorney.
If you have questions regarding social security and family law, please contact our office to schedule a consultation. The Law Office of Family Law Specialist Richard E. Bawden also handles legal issues regarding adoption, annulment, bankruptcy, collaborative divorce, divorce, domestic violence, litigation, legal separation, mediation, paternity, spousal support, step-parent adoptions, as well as pre-marital and post-marital agreements. Dial 909.792.0222 or email us at [email protected] You might also want to get more information at our website: www.richardbawdenlaw.com. The Law Office of Richard E. Bawden serves the Inland Empire including Riverside, San Bernardino, Rancho Cucamonga, Fontana, Redlands, Loma Linda, Mentone, Yucaipa, Beaumont, Banning and Hemet.