Joinder of pension and retirement plans in California
Joinder is the legal process by which a pension or retirement plan is “joined” as a party to a dissolution (divorce) or legal separation proceeding in California. Not all pension or retirement plans need to be joined. The following pension and retirement plans must be joined as a party.
1. Governmental plan of a city, county, state, public school or university or other public agency.
2. Plan (qualified or non-qualified) covering only business owners and spouses or employees of a church.
Federal government pension and retirement plans do not have to be joined as a party. However, they do require a Qualified Domestic Relations Order (Q.D.R.O) be issued by the Court specifying the non-employee spouses interest in the plan. Also many plans covering employees who work for private industry also do not have to be joined as a party, neither do Individual Retirement Accounts (IRA’s) or Roth IRA’s. These may be divided simply by Judgment or Order of the Court. Judicial Council form FL-318-INFO lists numerous different pension and retirement plans and indicates whether or not they require Joinder.
In California the process of Joinder is completed by the filing of several forms with the Court Clerk. The forms include detailed information about the employee, list the full name of the pension or retirement plan, and include the dates or marriage and separation as well as other pertinent information.
Upon the filing of the forms, the Court Clerk issues an Order of Joinder. The Order and the other forms are then served on the pension or retirement plan, which then has thirty (30) days from the date it is served to file a response. A blank response must be served along with the other Joinder paperwork.
The fact that the Court Clerk is authorized to issue an Order of Joinder greatly simplifies things as this means that the Joinder Order can be obtained without appearing before a Judge. Thus the Order of Joinder can be obtained very quickly if needed.
The Family Code now requires that a pension or retirement plan must be joined as a party to the divorce proceeding prior to the entry of judgment granting dissolution of the status of the marriage unless joinder is precluded or made unnecessary by Title 1 of the federal Employee Retirement Income Security Act of 1974 (29 U.S.C. Sec. 1001 et seq.), as amended (ERISA), or any other applicable law. See (Ca Fam § 2337(10)(d)(1).
The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California Divorce Litigation including Joinder of pension and retirement plans as well as preparation of QDRO’s.
