California Family Law Concept: Brown Rights

Concept: “Brown Rights” refers to the community property interest in a spouse’s retirement benefits earned during marriage, as established by the California Supreme Court’s decision in In re Marriage of Brown. In essence, Brown Rights ensure that both spouses have an equal claim to the portion of retirement pension benefits that accrued during the marriage – **even if those benefits were not yet vested or payable at the time of divorce**.

Citation: In re Marriage of Brown (1976) 15 Cal.3d 838 [126 Cal.Rptr. 633, 544 P.2d 561] (Cal. Supreme Court). This case overturned prior law and confirmed that retirement benefits (vested or not) earned during marriage are community property subject to division. Relevant statutes include former Civil Code § 4800 (now Family Code § 2550), which requires equal division of community property, and Family Code § 2610, which governs division of retirement plan benefits in divorce.

Explanation: Under Brown Rights, a spouse’s pension or retirement benefits are treated as community property to the extent they were earned during the marriage. This means that **both vested and unvested retirement benefits** accumulated while married are viewed as a form of deferred compensation earned by the couple’s joint efforts. Before Brown, non-vested pensions were seen as mere “expectancies” with no community property value. The Brown decision changed that by recognizing that even if a retirement benefit is contingent (for example, the employee must continue working or survive to a certain date), the portion attributable to years of service during the marriage is a valuable property interest of the community. In practical terms, Brown Rights prevent one spouse from walking away with the entire pension; instead, the part of the benefit earned during marriage belongs equally to both. Courts typically will **divide the community portion of the retirement benefits** between the spouses (often by a court order, such as a QDRO for plans), so that each receives their fair share when the benefits are paid. If the benefit is not yet payable (e.g. the pension hasn’t vested or the employee is not retired), the court can reserve jurisdiction and ensure that when the benefit does mature in the future, the non-employee spouse will obtain their portion. Overall, Brown Rights promote a fair division of one of the most significant assets in many marriages – the retirement pension – by acknowledging that both partners contributed to its acquisition.

Examples:

Example 1 (Vested Pension): **Husband and Wife are married for 20 years**, during which Husband works for XYZ Company and earns a pension. By the time of divorce, Husband’s pension is vested and will pay $2,000 per month at retirement. Under Brown Rights, the portion of that pension earned during the 20-year marriage is community property. If Husband worked a total of 30 years before retiring, the community portion is 20/30 (two-thirds) of the pension. That means $1,333 per month is considered community property, and each spouse will ultimately receive half of that ($666 per month each). The remaining one-third of the pension is Husband’s separate property (earned outside the marriage). This division reflects that the pension was in large part earned by the couple’s joint efforts during marriage.
Example 2 (Unvested Pension at Divorce): **Wife works for ABC Corp for 5 years during the marriage**, participating in a retirement plan that requires 10 years of service to vest. At the time of divorce, Wife’s pension is not yet vested. Under the Brown Rights principle, Wife’s pension rights – though unvested and not guaranteed – are still a form of property partly owned by the community. The court will acknowledge the community’s interest in the pension earned during those 5 married years. **How it works:** The court might not split anything immediately (since there’s no current payout), but it will typically reserve jurisdiction. If Wife continues working and eventually vests in the pension (say she works a total of 10 years to vest, and perhaps 20 years total before retiring), the portion of the pension attributable to the 5 years of marriage will be divided. For instance, if she retires after 20 years total, the fraction of the pension that is community property would be 5/20 (one-quarter). The community would get one-quarter of each pension payment, and Wife and Husband would each receive half of that quarter (meaning Husband gets 12.5% of each payment as his share). If Wife never reaches 10 years and the pension never vests, then unfortunately the community interest has no payout – but the key is that the *right* was recognized at divorce. This example shows that even an unvested, uncertain pension is taken into account and, if it later matures, the spouse who helped during those working years will share in the benefit.

Cases:

In re Marriage of Judd (1977) 68 Cal.App.3d 515 [137 Cal.Rptr. 318] – This appellate decision applied the Brown principle and outlined the **“time rule”** to apportion a pension. The court ruled that the community interest in a retirement plan should be proportional to the amount of service time that occurred during the marriage. In Judd, the formula was explicitly stated: take the **number of years (or months) the employed spouse worked during marriage, divide it by the total years worked for that employer**, and that fraction of the pension benefits is community property. The trial court on remand was instructed to award the wife one-half of that community portion. Judd solidified the practice of using a pro-rata time formula to calculate each spouse’s share of a pension.
In re Marriage of Stenquist (1978) 21 Cal.3d 779 [148 Cal.Rptr. 9] – The California Supreme Court extended Brown Rights to prevent a loophole with military pensions. In Stenquist, the husband was eligible for a regular military retirement (a community asset) but elected to receive his pension as a disability benefit. Disability pay is normally considered separate property, but the court **refused to let the husband’s choice deprive the wife of her share**. It held that a spouse cannot unilaterally label a benefit as “disability” to sidestep the community interest – any portion of the pension that was earned by service during marriage (even if received under a disability label) remains a community property asset. Thus, the wife was entitled to her half of the retirement portion of the benefits.
In re Marriage of Gillmore (1981) 29 Cal.3d 418 [174 Cal.Rptr. 493] – This Supreme Court case enforced Brown Rights by addressing *when* the non-employee spouse can collect their share. In Gillmore, the husband was eligible to retire and start receiving a pension, but he chose to continue working (which meant the wife would have to wait years to get any pension share). The court ruled that the **wife has the right to begin receiving her community share as soon as the husband is eligible to retire**, even if he does not actually retire. In practice, the husband was ordered to pay the wife an amount equal to what her share of the pension would be, starting from when he first could have retired. Gillmore prevents an employee spouse from unilaterally postponing the other spouse’s benefits by extending their career.
In re Marriage of Skaden (1977) 19 Cal.3d 679 [139 Cal.Rptr. 615] – Here, the Supreme Court applied the Brown concept to a form of deferred compensation beyond a standard pension. The husband was an insurance agent with a contract that gave him “termination benefits” (future payments over five years if his agency contract ended). The trial court initially called those benefits a mere expectancy and awarded them entirely to the husband. Citing Brown, the Supreme Court disagreed and held that these termination benefits, to the extent earned during marriage, **are community property** (they were essentially deferred compensation for past services). The court set guidelines for dividing such benefits, reinforcing that any employment benefit earned during the marriage – whether a traditional pension or otherwise – is divisible community property under Brown.
In re Marriage of Lehman (1998) 18 Cal.4th 169 [74 Cal.Rptr.2d 825] – This later Supreme Court decision reaffirmed and clarified Brown Rights in the context of enhanced retirement benefits. In Lehman, the husband’s pension benefits had increased after divorce (due to promotions and inflation adjustments by the time he retired). The husband argued that the wife’s share should be limited to the value of the pension at separation, but the court held otherwise. It ruled that **the community’s share includes all benefits attributable to the service during marriage**, even if those benefits accrued or increased after separation. In other words, once a portion of a pension is earned by years of marriage, the *full value* of that portion (with any later growth tied to those years) belongs to the community. Lehman ensured that a spouse receives their fair percentage of the final pension, not just a frozen snapshot from the time of divorce.

Formula:

Identify the marital service period: Determine the length of time the employed spouse participated in the retirement plan **while married** (from the date of marriage to the date of separation). This is often measured in years or months of service during the marriage.
Identify the total service period: Determine the total length of service **credited toward the retirement benefit** (usually from the start of employment to the date of retirement or benefit vesting). This is the total time over which the pension was earned.
Calculate the time-rule fraction: Divide the marital service period by the total service period. This gives a fraction (or percentage) representing the portion of the retirement benefit earned during the marriage. (For example, if 10 years of service were during marriage out of 30 total years of service, the fraction is 10/30 or 33.3%.)
Apply the fraction to the benefit: Multiply this fraction by the total value of the retirement benefit (e.g. the monthly pension amount or lump sum value). The result is the **community property portion** of the benefit. Using the above example, if the pension pays $3,000 per month, one-third of that ($1,000) is the community portion.
Divide the community portion between the spouses: Since community property is generally split 50/50, each spouse would receive half of the community portion of the benefit. In the example, each spouse would be entitled to $500 per month (half of the $1,000 community portion). The remaining portion of the benefit is the employed spouse’s separate property (earned outside the marriage).

This pro-rata division is commonly known as the “time rule” or “Brown formula.” It provides a fair and straightforward way to calculate each spouse’s share of a pension. By basing the division on the ratio of marital service to total service, the formula ensures that **only the part of the retirement benefit earned during the marriage is treated as community property**. Brown Rights and the time rule work together to protect both spouses’ interests: the employed spouse keeps the part of the pension earned outside the marriage, and the non-employed spouse obtains an equal share of the portion earned together during the marriage. The result is an equitable division that honors California’s community property principles.