Tuesday, January 13, 2009

Former unmarried partner entitled to pension share; thank you again, Washington State

I use Washington state as a shining example of "beyond marriage" in action because its courts will divide property at the end of a nonmarital relationship no matter whose name appears on the property. It is the only state that does this.

Yesterday the 9th US Circuit Court of Appeals ruled that Washington's recognition of "marital rights" to half of a former partner's pension must be implemented by the pension plan and does not violate the federal ERISA law. The case, Owens v. Automotive Machinists Pension Trust, upholds the validity of an state court order granting Norma Owens a 50% interest in her former partner's pension.

ERISA law is complex. Normally, a pension can be paid out only to the person who earned it. But often when a marriage ends the only thing of value is that pension. Federal law allows a portion of the pension to be paid to a former spouse if there is a QDRO (Qualified Domestic Relations Order) in place. Thus it is common for a divorce judgment to include a QDRO as a way of fairly compensating the non-income earning spouse for her contributions to the marriage.

In this case, Norma and Phillip Owens lived together for more than 30 years, raised two children, and held themselves out as a married couple. Phillip earned the money and Norma took care of the home and children. When their relationship ended, their remaining assets were used to pay off debts and the only thing of value left was Phillip's pension. Because Washington treats property acquired during an unmarried relationship as community property, Norma was awarded 50% of the pension.

The pension plan refused to implement this order, claiming that Norma could not receive "marital property rights" because she was not married to Phillip. But the federal court deferred to the definition of marital property rights in Washington state law and upheld Norma's eligibility. The pension plan also argued that the federal Defense of Marriage Act banned recognition of rights for an unmarried partner, but the court ruled that

"DOMA’s legislative history reflects only Congress’s concern for same-sex marriages; it
sheds no light on quasi-marital relationships such as the relationship between Phillip
and Norma that is at issue here."

So what if Norman had been Norman? I'm going to bet on the same result. In Washington state, same-sex and different-sex unmarried partners are treated identically, so a court might well award Norman a share of Phillip's pension. The court would not be asked to recognize a marriage between Phillip and Norman, but rather the rights Norman would have in Phillip's pension as a result of their nonmarital relationship, just like Norma.

So consider this: In Massachusetts or Connecticut, a married same-sex spouse might receive a QDRO upon divorce, but that order might NOT be implemented because of DOMA. But if more states recognized property rights regardless of marital status, gay and straight ex-partners alike would have their economic security preserved.

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