In CA, if you divorce you will lose your rights to your spouses Social Security.


John and Annette Peterson were married on March 12, 1994, and they separated

on February 17, 2010. John1

is an attorney who works in private practice. Throughout

the marriage, John contributed to Social Security through mandatory payroll deductions.

Annette, also an attorney, began working for the County of Los Angeles as a

Deputy District Attorney in September 1994, and remained employed with the County

throughout the marriage. Through her employment Annette became a member of the Los

Angeles County Employees Retirement Association (LACERA) Plan E, which is a

defined-benefit retirement plan. LACERA members do not contribute to the plan; only

the County, Annette’s employer, contributes. The amount of a LACERA member’s

benefits is determined by the member’s age at retirement, amount of service credits, and

final compensation. Annette began accumulating LACERA service credits as soon as she

began working for the County. At the time of trial, she had more than 14 years of service

credits under LACERA’s Plan E.

LACERA members are barred from contributing to Social Security. Under the

Windfall Elimination Provision of the Social Security Act, 42 U.S.C. 415(a)(7), and the


Following the parties’ practice in their respective briefs, we refer to the parties

by their first names and intend no disrespect.


Government Pension Offset, 20 C.F.R. 404.408a(a), Annette is barred from receiving

Social Security benefits, both individually and as the spouse of someone who contributed

to Social Security.

Annette and John separated on February 17, 2010 and filed for divorce. They

entered into stipulated judgments regarding the custody of their children and division of

the community estate, with the exception of their retirement benefits. They agreed that

under existing law, John’s Social Security is separate property and Annette’s LACERA

benefits are community property. As a result of this classification, John is entitled to

keep 100 percent of his Social Security benefits and half of Annette’s LACERA benefits,

while Annette is entitled to none of John’s Social Security benefits and only half of her

LACERA benefits. Annette argued below that the trial court should fashion an equitable

division of the LACERA benefits to account for this disparity, while John argued that the

trial court was compelled by federal law and Family Code section 25502

to divide the

LACERA benefits equally.

The court below conducted a short trial to address how to divide the retirement

benefits. Annette stated that the present value of her LACERA benefits is approximately

$210,000 to $216,000, and the present value of John’s Social Security benefits is

$228,000. Annette also used an online calculator available from the Social Security


to estimate the amount of Social Security benefits she would be entitled to

receive had she participated in Social Security. She also presented evidence showing the

amounts John and his employer contributed to his Social Security during the marriage.

John does not dispute these facts.

In its order following trial, the court acknowledged the parties’ agreement that

John’s Social Security benefits are separate property and Annette’s LACERA benefits are

community property. The trial court rejected Annette’s argument that the court should

fashion an equitable division of the LACERA benefits by either (a) requiring John to

2 All further statutory references are to the Family Code unless otherwise



See, e.g.,


reimburse the community estate for the amount of Social Security contributions withheld

from John’s pay, and then dividing the assets, (b) allocating a portion of the LACERA

benefits to Annette as separate property based on the present value of the Social Security

benefits Annette would have accumulated had she been a Social Security participant, or

(c) considering the present value of John’s Social Security benefits when dividing the

LACERA benefits to ensure the parties received roughly equal retirement benefits. The

court held that considering John’s Social Security benefits in dividing the LACERA

benefits would amount to a “setoff” of John’s Social Security, which is barred by federal

law. Relying on Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979) (Hisquierdo) and In re

Marriage of Cohen (1980) 105 Cal.App.3d 836, 843 (Cohen), the trial court concluded

that because John’s Social Security benefits were his separate property and the LACERA

benefits were community property, the “LACERA retirement benefits accumulated

during marriage are subject to the mandate for equal division of Section 2550.” The

court added, “Thus, whether the result is inequitable or not, this court cannot adjust the

division of [Annette’s] LACERA benefits or deviate from the requirement of equal


Annette timely appealed.