California Divorce Brown Formula. Understanding the “Time Rule”

California divorce Brown Formula time rule

The California divorce Brown formula can be a source of confusion. In this article, we give you valuable insight into the time rule and how it applies.

The California divorce Brown Formula, also known as the “time rule”, refers to the 1976 case of Marriage of Brown. The perception is that this case established a rule whereby community property such as retirement benefits can be apportioned based on the amount of time it was earned during the marriage versus pre-marriage and post-separation.

Forgive us ahead of time if we get a little technical in this post. It’s sometimes difficult to talk about such concepts without sounding like a lawyer…especially because we are lawyers…but I think you know what we mean. Hey, we don’t expect you to read an article and suddenly understand these concepts.

We are providing you with general information about the Brown Formula but real questions and actual advice can only come when you speak to an experienced family law attorney. Do not rely on this article for your specific situation.

Now, back to the lawyer talk thing…

The Marriage of Brown case didn’t actually establish the time rule. This is a common misconception among family law attorneys and even judges. What is correct is that the Brown case tackled the issue of whether vested versus unvested pension benefits made a difference to its community versus separate property characterization. Bear with me for a moment. The Marriage of Brown court held:

In sum, we submit that whatever abstract terminology we impose, the joint effort that composes the community and the respective contributions of the spouses that make up its assets, are the meaningful criteria. The wife’s contribution to the community is not one whit less if we declare the husband’s pension rights not a contingent asset but a mere… “expectancy.” Fortunately we can appropriately reflect the realistic situation by recognizing that the husband’s pension rights, a contingent interest, whether vested or not vested, comprise a property interest of the community and that the wife may properly share in it.

A little confusing? We know. Since the Brown Formula is often associated with the time rule in California divorce cases, we’re going to roll with it for the purposes of this article. Again, a lot of lawyer jargon in that paragraph right? Fortunately, you don’t have to worry about that either because we are not concerned here about vesting. We are going to talk about the time rule. Ready? Let’s do this.

Application of the California divorce Brown Formula and the time rule

Since the California divorce Brown Formula and time rule is most often used with a defined benefit plan such as a pension, we will also use that as an example in its application. Note – it is not limited to that and has been used for stocks and other division of assets.

Under the Brown Formula and time rule, the community property portion of a defined plan is a ratio. It is the time worked between the date the spouses are married and the date they separated in relationship to the entire time the plan holder was employed.

Examples are easier to understand.

Let’s assume that a husband’s retirement benefits resulted from twenty years of total employment. Also assume the husband and wife became married five years into that employment and were separated five years before the husband reached the twenty year mark. That means there is five years of pre-marital apportionment and five years of post-separation apportionment. There is then ten years of community property allocation in proportion to the twenty total years.

If the Brown Formula and time rule is strictly applied, 50% of the benefits are community property and the other 50% are separate property. You then take the community property and divide by half and you get the wife’s portion.

Is that how it always works? No. 

California divorce Brown Formula and its application when years of employment are not the determining factor

For apportionment to take place as we have discussed, the retirement benefits must be substantially related the numbers of years the spouse was employed. In other words, the number of employment years must bear a substantial relationship to the accrual of the retirement benefits. It doesn’t always.

One of the cases that has come down in California is called Marriage of Poppy.

In that case, a husband’s pension with the Naval Reserve was not a function of years served but rather “points” earned. The points related to the drills that the husband attended. The California appellate court held application of the time rule may not be appropriate. It told the trial court to look at the number of points earned from the date of the marriage to the date of separation compared to all of the points earned. The appellate court substituted points for time since points were substantially related to the amount of the retirement benefits.

California divorce Brown Formula when the retirement is fully earned during marriage and before separation

Another case is called the Marriage of Henkel.

After 26 years of service in the Air Force, a colonel got married. Six years later, he separated. Since they were married for six years, the wife’s lawyer asked the trial court to apply the time rule and use a numerator of six years and the denominator of 32.

On appeal, the California Court stated that using the time rule in that manner was not the proper method. That was because the Colonel earned the entire retirement after thirty years and the additional two years were irrelevant toward the benefits. Therefore, the correct number to use was four years as the community property portion and not six.

California appellate cases have come down over the years which have applied the Brown Formula and time rule. Others have refused to do so when the substantial relationship did not exist. The key for your purposes is that a closer look should be had and a focus should fall on the substantial relationship between time and the benefits that are being divided.

Does the Brown Formula and time rule determine whether an asset is community property?

Another source of confusion is that the Brown Formula and time rule determines whether or not an asset such as defined benefit plan is or is not community property. The time rule has nothing to do with that. It is simply a formula to divide it, not characterize it.

Do not try to apply the Brown Formula and time rule to your California divorce case without a lawyer’s representation

You should not try to apply the Brown Formula and time rule to your assets without the assistance of an experienced California divorce lawyer. Most often, a formal qualified domestic relations order is necessary to determine the community and separate property portions. Don’t take shortcuts. Do it right.

Contact our divorce lawyers in Orange County should you wish to retain us for your family law matter.

If you want to learn more about our lawyers, check out our Farzad Family Law directory of attorneys. To read what our clients write about us, read our family law client review page.

Comments

  1. Juliet says

    Is there a law that i have to give money to my step saughter as well because my spouse hasnt got child support but hes gonna put it on himself. But does that affect my money as well? Or no.

  2. Joy Fields says

    I was married 9 years and 9 months, do I have to pay my ex spouse part of my retirement for the rest of my life, or is there a time limit on how long I have to pay?

    • says

      Retirements are generally divided pursuant to a qualified domestic relations order. Your question is impossible to answer without knowing more facts. If your case is in Southern California, please contact us.

  3. Liz says

    My parents were married for over twenty years before they divorced and now my dad is about to retire. My dad was employed at 2 different companies spending nearly 3/4’s of the marriage at the first company. He cleared out his retirement at the 1st and blew it during the marriage. Now he’s going to retire with a 20yr pension, 401k (opened after the divorce) and social security. He was supposed to pay spousal support but never did. My mother eventually went to the court and had them remove spousal support because he continually threatened her. In regards the retirement the divorce settlement only says “Brown Formula.”
    What is my mother entitled to? Can you recommend any attorneys in Stanislaus county? My mother always ends up with the the worst attorney possible.

    • B. Robert Farzad says

      Hello Liz. I do not have any referrals in your county. I am looking for lawyers up there to refer lawyers but have not found anyone I trust yet. I cannot give your mother any advice over a comment to this article. That would not be appropriate.

  4. patty says

    I was just looking over my divorce papers after 33 years of marriage and under his pension, it says “brown formula”. This was not a contention at court as we had reduced our joint income for about 15 years to protect me. My pension had the same option but was a lot less cost effective, so I simply took my meager pension and he took his and emptied out his 401k before retirement age, so that he could retire early.. I was still working. I honestly thought given the length of marriage and the reduction in monthly income would be status quo, or at the least just be rescinded at the time of actual divorce.. Am I totally stupid, naïve or what.. It is basically a city job, and I thought that my sacrifice counted… I thought at least part of it was untouchable, am I wrong??? yikes there goes that..

    • B. Robert Farzad says

      I am not sure what you mean it says “Brown Formula.” I think you need to get your divorce judgment “papers” to an attorney immediately for an evaluation. It seems like you really don’t know at this point the effect of whatever provision exists about your pension / retirement. Don’t let this sit. If your case is in Orange County, contact us for a consultation.

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