What is the test for determining whether to enforce by restitution a spouse's community property interest in pension payments received by the retiree spouse before partition?

California, United States of America


The following excerpt is from Casas v. Thompson, 228 Cal.Rptr. 33, 42 Cal.3d 131, 720 P.2d 921 (Cal. 1986):

[42 Cal.3d 152] Henn instructs the trial court to apply equitable principles in determining whether to enforce by restitution a spouse's community property interest in pension payments received by the retiree spouse before partition and to what degree. (Cf. Hill v. Hattrem, supra, 117 Cal.App.3d 569, 574, 172 Cal.Rptr. 806.) Where the court finds no unjust result in awarding full retroactive benefits, the court may "tailor the form of that award" to avoid placing an undue burden on the spouse ordered to pay. (Id. at p. 575, 172 Cal.Rptr. 806.)

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