§4.04 Spouses' Rights and Elections

If a court reserved jurisdiction over pension payments and the employee spouse becomes eligible to retire, he or she has an initial choice of retiring or continuing to work The employee spouse may [Marriage of Cornejo (1996) 13 C4th 381, 383]:

• Retire and begin drawing from the stream of retirement income, with the result that the nonemployee spouse may start to draw his or her share of the community property interest; or
• Continue to work and forgo the income he or she would have drawn, with the result that the nonemployee spouse is compelled to forgo what would have been his or her share.

The employee spouse is not permitted, however, to adversely affect the nonemployee spouse's share by putting off retirement. To prevent such an outcome, the nonemployee spouse is allowed a choice of delayed benefits or immediate payment. If the employee spouse continues to work, the nonemployee spouse may [Marriage of Cornejo, supra]:

• Wait to draw his or her share when the employee spouse begins to receive benefits (with the possibility of increase as a result of greater age, longer service, or higher salary); or
• Demand immediate payment to compensate for what would have been his or her share (without the possibility of increases). This choice is sometimes called a "Gillmore election" after the leading case Marriage of Gillmore (1981) 29 C3d 418.

If the nonemployee spouse decides on immediate payment, the employee spouse may:

• Make arrangements to meet the demand for immediate payment, or
• Simply retire and allow the nonemployee spouse to draw his or her share.