Is a Same Sex Former Married Partner Entitled to Pension Benefits in a Dissolution?

The Owens v. Automotive Machinists Pension Trust case below raises of question of whether the Ninth Circuit would recognize same sex married partners for purposes of dividing a qualified retirment plan in a divorce. If a same sex married partner, or former married partner, may be considered a "dependent" for purposes of meeting the definition of an Alternate Payee, perhaps a same sex married (or former married partner) would also be entitled to benefits pursuant to a QDRO in a partnership dissolution.

Owens v. Automotive Machinists Pension Trust, 551 F.3d 1138 (9th Cir. 2009). http://www.ca9.uscourts.gov/datastore/opinions/2009/01/12/0735253.pdf

Quasi-Marital Spouse Entitled to 50 percent of pension benefits

On January 12, 2009, in the case of Owens v. Automotive Machinists Pension Trust, the Ninth Circuit court of appeals affirmed the lower court's ruling that a quasi-marital partner is entitled to pension benefits pursuant to a Qualified Domestic Relations Order ("QDRO"). Norma and Phillip Owens lived together for 30 years but never married. The couple separate in 2004, and Norma sought half of Phillip's pension. Under ERISA, a person must meet the definition of an Alternate Payee in order to receive a portion of benefits from a qualified retirement pursuant to a QDRO. A person is an Alternate Payee if he or she is a spouse, former spouse, child or other dependent of the participant. Although ERISA does not recognize Norma as a spouse or former spouse, under the definition of Alternate Payee, the Ninth Circuit agreed with the lower court that Norma was a "dependent" who lived in the household with the taxpayer, and, therefore, met the definition of an Alternate Payee.

See full opinion at: http://www.ca9.uscourts.gov/datastore/opinions/2009/01/12/0735253.pdf

Is your retirement plan protected from creditors?

KRAVITZ Retirement Plan News had a great article in the January/February 2009 issue regarding when qualified retirement plan assets are not protected from creditors. These reasons include federal tax levy, qualified domestic relations orders, and participant loans. Interestingly enough, even though the feds can get to your 401(k) or other qualified plan assets, the assets cannot be touched by a third party for restitution of a criminal act. Read more at: http://www.lkravitz.com/pubsarticles/documents/Jan-Feb.pdf