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Madeline Louise Hill

Madeline Hill’s Answers

88 total


  • My wife is looking at Cashing out her pension - My pension was about the same size Net $45k and i gave her $30,000.

    Now she wants to cash hers out and not give me proceeds - I am fine if she pays that amount to the children's school however she should not get much more of the net $45K $27K is documented-and I also paid household expenses - mother was removed in...

    Madeline’s Answer

    It is not clear if you have filed for a legal separation or divorce. If so, then any retirement benefits earned during the marriage may be treated as a community property asset. Most retirement plan administrators will place a hold or freeze on retirement assets if a notice of adverse interest letter or joinder of employee benefit plan is received. In other words, often a party will send a letter to his/her former spouse's employee benefit plan notifying them of the divorce/legal separation case and requesting that hold be placed on assets until they can be disposed of by further court order or QDRO. Another option is to file a joinder, which makes the retirement plan a third party claimant to the divorce/separation case. I have included some links below that you may find helpful.

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  • Does anyone know how the division of retirement works re QDRO? If married 13 yrs are the retirement benefits same amount of yrs

    In the state of California is it half the years of marriage or is it the full 13 years?

    Madeline’s Answer

    In California, the non-employee spouse is entitled to 50% of the benefits that accrued during the marriage.

    For traditional pension plans (i.e. defined benefit plans) where the benefits are based on a formula of the years of service credit, age at retirement, and final salary, the division is usually calculated using the Time Rule Formula. The Time Rule Formula utilizes a marital fraction to determine the community interest in the retirement benefits once they become payable.

    For defined contribution plans (such as 401k plans) where the benefits are based on monetary contributions and stock market investment performance, the former spouse is typically awarded one-half of the contributions made from the date of marriage to the date of separation, plus gains and losses from the date of separation until the account is divided.
    I have included some links below which explain many of these issues in greater detail which you may find helpful.

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  • Ex wants survivor benefits before signing QDRO.

    Divorced in 2010. Retirement accounts joined but QDRO never prepared or filed with court. Ex now wants survivor benefits included before she will sign but I remarried three years ago. MSA states to divide according to CP law. Was it my respon...

    Madeline’s Answer

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    As others have stated, it does not matter whose responsibility it is to get the QDRO filed as much as that the plan will not pay benefits to you until they receive a court filed QDRO. A QDRO should always specify what happens in the event of the death of the parties. Pursuant to California Family Code Section 2610, the court shall make whatever orders are necessary or appropriate to ensure that each party receives the party's full community property share in any retirement plan, including all survivor and death benefits, and including the ability to order a party to elect a survivor benefit annuity or other similar election for the benefit of the other party. Due to that Family Code Section, Courts generally consider survivor benefits as part of the community property interest in retirement benefits unless the parties have specifically negotiated and agreed otherwise. The vast majority of retirement plans will allow survivor benefits to be split between a former spouse and a current spouse. Usually, the former spouse's share is limited to his/her community property interest, so that the survivor benefits secure the community interest but do not act as a windfall. If your plan will not allow for a retirement option election that provides for survivor benefits for both former and current spouses, you may need to go back to court to settle the issue.

    Regarding your second question, the division of pension benefits in California is typically based on the Time Rule Formula, which utilizes a marital fraction to account for the benefits accrued between the date of marriage and date of separation. I have included a link below to more information about the Time Rule Formula which you may find helpful.

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  • Question regarding military pensions and divorce

    My divorce agreement says my ex is to receive 10% of my military retirement, and the responsibility is on her as the petitioner to file for the QDRO. I am reading conflicting information about QDRO's. Some say that because the 10/10 or 20/20/20 ...

    Madeline’s Answer

    The other responses are correct. DFAS can only pay benefits directly to your former spouse if the marriage satisfies the 10 year rule (20/10/10 Rule). However, even if your marriage does not qualify under the 10 year rule, your former spouse can still be awarded a portion of your military retired pay under California law. Since the payments cannot come from DFAS, you are obligated to make the payments to her each month. You will want to meet with a tax professional to ensure the taxes on the retirement benefit payments made to your former spouse are allocated correctly. I have also included a link below regarding the 10 year rule that you may find helpful.

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  • Can a QDRO be filed without divorce?

    Husband and wife want to split pension using a QDRO. Can a QDRO only be used in the event of a divorce?

    Madeline’s Answer

    For a division of retirement benefits between spouses, a QDRO can only be used in conjunction with a court proceeding for divorce or legal separation.

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  • I took money from a retirement account I won in a divorce.. called it a quadro...taxes already taken out why claim on my tax rtn

    I am unemployed and needed some cash..so i got some money out of a retirement acct. I am 56...but before they send me the check they take out taxes first...then i get the check. So if i want $5000 check--they take out for example $6000 and tax it...

    Madeline’s Answer

    It is standard for retirement plans to withhold 20% on any lump sum distributions, which is likely what happened in your case. As the other answers have explained, this is just withholding; you may receive a refund when you file your taxes - or you may owe additional taxes on the distribution - depending on your tax bracket for the year. Since you are unemployed, you will likely be charged a lower tax rate than 20% when you file your taxes and will then receive a refund of part of the withholding.

    In addition to the 20% withholding, retirement plan distributions made prior to age 59 1/2 are typically subject to an additional 10% early withdrawal penalty. However, if your distribution was made pursuant to a QDRO, it is exempt from the early withdrawal penalty under Internal Revenue Code Section 72(t)(2)(c). You should check your distribution to be sure that they did not charge you the additional 10% penalty.

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  • Can my ex-husband force me to retire while I am on disability from my job?

    I am 55 years old and eligible to retire from the police force but currently disabled from ruptured discs in my back while on patrol. I am receiving full benefits per Labor Code 4850 and will likely have back surgery. My ex-husband wants me to re...

    Madeline’s Answer

    You cannot be "forced" to retire. Unfortunately, like may people, you may find that you need to retire for financial reasons if the Gillmore election is approved by the court. If your former spouse is successful with his Gillmore election, you will be ordered to begin paying him monthly benefits until the time that you do actually retire. The amount you would have to pay him would be based on what he would receive if you did retire now. In other words, you will be paying him his share of the retirement benefits until you choose to retire. Once you do retire and the plan begins paying benefits directly to him (pursuant to a Domestic Relations Order), you will no longer have to pay benefits to him. I strongly recommend that you immediately find legal counsel to assist with your response to the Gillmore election. Unfortunately, the division of retirement benefits is an asset division, and unlike spousal or child support, the court does not typically consider each party's other sources of income for the division of retirement benefits.

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  • How many years should ex-spouse collect on Cal PERS pension?

    I am divorcing a Cal PERS member after 13 years of marriage. I know how much of my ex's monthly pension benefit I am entitled to but don't know how many years I should expect to collect. What is customary?

    Madeline’s Answer

    The standard community property division would be for you to receive 50% of the contributions, interest and service credit accumulated from the date of marriage to the date of separation. There are two different methods of dividing community property in CalPERS if the member is not yet retired, the Separation of Account method and the Time Rule Formula. Your question states that you know how much of the monthly benefit you will be receiving, but it sounds like you may be wondering for how long the monthly benefit payments will continue. Unless the Domestic Relations Order (DRO) dividing the benefits is unusual, you will receive monthly benefits for as long as the member lives. Depending on the language in the DRO (and the option elected at retirement if the member is already retired), you may also be awarded survivor benefits which will allow payments to continue to you after your former spouse's death. Please see the links below for a bit more information about CalPERS benefits in divorce.

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  • I have been married 23+years.getting divorced.how much in % of my retirement is she entitled to? we were married the whole time

    i have a pers retirement account after working for 11 1/2 years. do i take it all out now and give her whatever % shes entitled to? do i write something about giving her that % of it after i actually retire? im 51 and shes 61 and disabled. i h...

    Madeline’s Answer

    Your former spouse is entitled to 50% of the community property interest in the benefits (i.e. one-half of whatever accrued during the marriage). If the entire CalPERS pension was earned during the marriage, she will likely be entitled to 50%. It would not be wise to select a refund of contributions now and then pay her portion to your former spouse yourself, because the entire distribution would be taxed to you. Utilizing a Domestic Relations Order (DRO) to award her community property interest would ensure that each party is responsible for his/her own taxes.

    CalPERS, unlike many private employer pensions, offers two methods of dividing pension benefits, the Separation of Account Method and the Time Rule Formula. The Separation of Account method would allow a new account to be created in your former spouse's name, and she could access a refund of contributions once CalPERS receives a DRO, even if you are not collecting benefits. Since she is 10 years older than you, she may wish to begin receiving benefits ASAP. Otherwise, under the Time Rule Formula, she would have to wait until you actually retire in order to begin receiving benefits directly from CalPERS.

    I have included a link below with information about the division of CalPERS benefits in divorce that you may find helpful. CalPERS also publishes a 50 page booklet regarding community property, which I have included a link to below.

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  • Divorced over 15 yrs ago, too late to file joinder/QDRO?

    We were divorced 15 yrs ago in California, the MSA stipulated that I receive percentage of his pension upon retirement. He is now planning on doing that. The Plan says I am not entitled to anything (despite the MSA) and I need to file joinder bef...

    Madeline’s Answer

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    There is no statute of limitations on QDROs or joinder filings, so it is not too late for you to receive your interest in the pension. I strongly recommend that you start the joinder and QDRO process immediately. Typically once a retirement plan is served with a joinder, the plan will place a freeze or hold on the employee's account. If he is about to retire, some plans will only allow him to receive 50% of his retirement pay until they receive a QDRO clarifying your community interest. The plan is not correct that you are not entitled to anything, they are only correct that they have not been served with the proper legal documents required so that they can begin making payments directly to you once your former spouse retires.

    The joinder and QDRO will need to be filed in the same county where the divorce took place. The joinder can easily be filed with the court by mail. The QDRO can also be filed by mail, as long as your former spouse signs it voluntarily. If he refuses to sign the QDRO, a court hearing may be needed to get the QDRO entered with the court.

    I have included a few links below about joinders, QDROs for pension plans, and the formula typically used to divide pension benefits in California.

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