I have been married for 10 years and employed at my company for 6 years but I am not vested in my pension until 8 years. There are no contributions made prior to me being vested. Can my pension be split in divorce before I am even vested ?
Family Law Attorney
Yes, and no. All assets that are acquired during the course of the marriage are presumed to be community property. During the course of the marriage is defined as from the date of the marriage to the date of separation. You have not acquired any pension benefits during the marriage. Nothing has been contributed. Therefore, the community has not acquired an interest. Your potential to vest in your pension, in the future, with future payments would be yours alone.
Please be aware that any comments that I have made are preliminary and tentative and not based upon a thorough analysis of your case. I would need additional information and to review the exact documentation to be sure of the above advice. The answer above does not create an attorney/client relationship and does not require me to answer any future questions.
Employment / Labor Attorney
I can't speak specifically to how CA treats a non-vested pension benefit but in most states (including Texas, where I practice) a non-vested pension benefit is still marital property subject to division. Your pension is calculated by a formula that gives you credit for each year of service under the plan, which includes years of service during your marriage. So there are benefits accrued under the plan during your marriage that are subject to division. The most common way a non-vested pension is divided is is ordering a division of the marital share of the benefit upon vesting. No vesting then nobody gets anything but if vesting occurs then property is divided. There are other ways it can be divided.
Certain government pension programs do not permit division if the participant is not vested at the time division is ordered but if you work for a private employer subject to ERISA then the above is probably true for your divorce.