No. 99 July 22, 2009

Q: I work for the State of California and I have CalPERS retirement benefits that I must divide because I am going through a divorce right now. My husband is a teacher and he used to have retirement benefits that he borrowed heavily against. Now that he lost his job, he cannot repay the loans he obtained against his retirement benefits. Why should I divide my benefits when he actually spent all of his retirement. Am I not entitled to half of his retirement benefits too?
A. If both of your retirement benefits were accumulated between the date of marriage and the date of separation, then you are entitled to half of his and he is entitled to half of yours. Obviously, there is a big problem here. You cannot get half of his since he already spent it all. This is for the Court to decide. There are many factors to take into consideration, not the least of which are the value assigned to each of your retirement benefits, how much of his have already been used up by the loans he obtained. The Court must decide whether or not he would be entitled to his share of your retirement benefits based on the value remaining of his retirement benefits, if any, compared to the value of his share of your retirement benefits. I know it sounds complicated, but it might be necessary to get an actuarial assessment in order to do a comparison of how much of his retirement benefits was lost to you to how much he would gain from your retirement benefits.