By Shawn Weber, San Diego Divorce Attorney
When dividing the community property interest in a defined benefit plan, the Court most often uses the so-called “Time Rule” or “Brown Formula”. Many clients (and a lot more attorneys than you would think) have a difficult time understanding how the time rule formula works.
Basically, the court uses a formula for the apportionment between divorcing spouses of the future retirement benefits. A percentage is determined based on the ratio between the time that a member spouse was enrolled in a defined benefit plan during the marriage and the total time that the person was enrolled in the plan. The formula is used because often times the member spouse is not yet retired and is still racking up separate property time in the plan, changing the percentage of the total benefit payment the non-member spouse would receive when the plan goes into pay status. For an excellent discussion of the Court’s use of the time rule, see In re Marriage of Judd (1977) 68 Cal.App.3d 515, 137 Cal.Rptr. 318.
In applying the formula to a pension annuity, the Court in Judd “simply” boiled the time rule down as follows:
“The most effective method of [dividing the community property portion of a pension] would be to determine the community interest to be that fraction of retirement assets, the numerator of which represents the length of service during the marriage but before the separation, and the denominator of which represents the total length of service by the employee-spouse. Such disposition would comport with what we have termed the ‘time rule.'”
For me, it is easier to actually see the formula written out as follows:
1/2 x (Member’s system credit accumulated from date of marriage / members total system service credit at time benefits become payable) x (Member’s benefit at time benefits become payable) = (Non-member spouse’s share of system benefits)
Usually, a Qualified Domestic Relations Order or “QDRO” will be required by the pension administrator to apply the time rule to the pension. Then, once the pension goes into pay status, the payments will be divided according to the formula.
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