Carol V. Calhoun, Counsel
Venable LLP
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Washington, DC 20001
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For over a decade, the legislatures and courts of a number of states and countries have paid increasing attention to the treatment of pensions in separation and divorce proceedings. ^1/ This attention stems from the realization that the right to pension benefits can be the most valuable asset acquired over the course of a marriage, often second only to the marital home.

Courts and legislatures increasingly regard it as inequitable to allow only one party to the marriage to enjoy retirement benefits after the marriage is dissolved. ^2/ Redressing this inequity involves including the value of the pensions accrued during the marriage as part of the property division or spousal maintenance or support ordered after a separation or divorce is granted. Over 40 states now recognize future benefits under a pension or retirement plan as a form of property. ^3/

This article will survey the development of the law regarding the treatment of pensions in divorce in two jurisdictions which are representative of United States law and international law respectively: California and England. It will then discuss the conflict of laws aspects of treating pensions in divorces in which the parties are tied to both these jurisdictions. Finally, after considering the law applicable in California and England, the article will discuss the various problems which attorneys must face when attempting to obtain cross-border division of pension assets.

Contents

I. DEVELOPMENT OF THE LAW
- A. United States
  - 1. California: Pensions as Community Property
  - 2. ERISA: Pensions are Divisible
- B. England
  - 1. Denial of Divorce
  - 2. Pensions in Financial Maintenance
II. CONFLICT OF LAWS ISSUES
- A. English Conflict Of Law Rules In Family Law
  - 1. Jurisdiction Over the Dispute Itself
  - 2. Enforcement of Maintenance Orders
- B. California Conflict of Law Rules in Family Cases
III. PRACTICAL PROBLEMS FACED BY ATTORNEYS IN THE CROSS-BORDER DIVISION OF PENSION ASSETS
IV. CONCLUSION
- - Related Posts:

I. DEVELOPMENT OF THE LAW

A. United States

In the United States, two fundamental changes have reshaped the treatment of pensions in separation and divorce proceedings. The first is a 1976 decision by the California Supreme Court. The second is a 1984 amendment to the Employment Retirement Income Security Act of 1974 ("ERISA").

1. California: Pensions as Community Property

Prior to 1976, the rule in California was that a nonvested pension is a "mere expectancy" and is therefore not divisible property. ^4/ In a watershed decision, In re Marriage of Brown, ^5/ the California Supreme Court overruled this decision, holding that pensions are a contingent interest in property and therefore divisible, whether vested or nonvested.

In addition, the Brown court endorsed two possible methods of dividing the property interest in a pension: the "cash out" and the "in kind" methods. The "cash out" method involves calculating the present value of the employee spouse’s future pension, adjusted for the proportion of the employment tenure during the marriage and for the employee spouse’s life expectancy. ^6/ Pension benefits accrued before or after the marriage are the separate property of the employee spouse. Given this value, the full pension is awarded to the employee spouse and other marital property of equal value is awarded the other spouse.

The second method is the "in kind" division of pension benefits. It divides the community property interest in the pension equally at the time of divorce, to be paid to both former spouses when the employee spouse becomes eligible.^7/ The court retains jurisdiction to ensure that the payments are properly made.

A vivid example of the operation of California law in this regard is In re Marriage of Bergman. ^8/ The court of appeals affirmed the trial court’s decision to "cash out" the husband’s federal civil service defined benefit pension and, at the same time, divide the wife’s state teacher’s pension "in kind." The court noted that these are the only approved methods for dividing community property interests in pensions and reprinted a chart outlining the factors used in choosing between them. ^9/

2. ERISA: Pensions are Divisible

In general, under the Employee Retirement Income Security Act of 1974 ("ERISA"), a pension plan must provide that benefits cannot be assigned or alienated. ^10/ In light of ERISA’s "preemption" rules– ERISA generally supersedes any and all state laws insofar as they relate to an employee benefit plan– some courts held that the restriction on alienation prohibited dividing qualified pension benefits "in kind" in divorce. ^11/ Other courts disagreed. ^12/ To resolve this question, Congress included a provision in the Retirement Equity Act of 1984 expressly allowing pension plan administrators to carry out a qualified domestic relations order ("QDRO") and divide pension benefit payments. ^13/

A domestic relations order must be a state court judgment, decree, or order (including approval of a property settlement agreement) which relates to the provision of child support, alimony, or marital property rights. ^14/ To be qualified, it:

a. Must not alter the amount of benefits.

b. With limited exceptions, must not require a type or form of benefits not otherwise provided by the plan.

c. Must specify all of the following:

(1) Name and last known mailing address of the participant.

(2) Name and last known mailing address of the alternate payee.

(3) The portion of the benefit to be paid to the alternate payee, whether in the form of an amount, a percentage, or a method of calculating the amount.

(4) The number of payments or period involved.

(5) The plan(s) to which the order applies. ^15/

This amendment applies only to plans governed by United States law. A foreign judgment will not be a qualified domestic relations order, since it would not be issued by a state court as required under ERISA. ^16/ The amendment only benefits individuals in states that recognize a property interest in future pension benefits. ^17/

The clear trend is toward recognizing this form of property in marital disputes. ^18/ A plan can now enforce division in kind and continue to qualify for tax-favored treatment under ERISA. California (and other community property states as well) recognizes this interest. ^19/ The trend is not restricted to the United States. In 1976, for example, the West German Civil Code was amended to provide for an equalization of pension rights upon divorce. ^20/

B. England

The trend toward considering pensions in marital disputes is clearly visible in England. Numerous statutory changes have been enacted governing this aspect of English family law. Nevertheless, the English rules still differ markedly from those in effect in many American jurisdictions, including California.

1. Denial of Divorce

In England, the sole grounds for divorce is "that the marriage has broken down irretrievably." ^21/ The Act specifies five narrow circumstances, any one of which must be present before a court of jurisdiction can hold that a marriage has broken down. ^22/ One of these is that the parties have lived separately for five years. ^23/ However, in the case of a five year separation the respondent can oppose the divorce on grounds that dissolution of the marriage will result in grave financial hardship. ^24/

Interestingly, the rare cases in which this defense has been raised most often involve the loss by a wife of her interest in her husband’s pension. In the leading case, Parker v. Parker, ^25/ the wife would have lost her entitlement to her husband’s police pension (available only if she remained married to and survived her husband). In one case it was remarked that loss of a pension that was indexed for inflation constituted prima facie grave financial hardship to the wife. ^26/ Thus, in cases involving five year separation, the effect of a husband’s pension can be to defeat his attempt to obtain a divorce at all.

2. Pensions in Financial Maintenance

Part II of the Matrimonial Causes Act, 1973, provides comprehensive rules for financial settlements ordered upon separation, divorce, or annulment. The Act specifically details the circumstances a court must consider in deciding whether to order a financial settlement, including (in divorce and nullification cases) "the value to either party to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring." ^27/

English courts are required to consider the pension entitlements lost by a nonemployee spouse both with regards to whether to order financial settlement and what form the settlement should take. In the leading financial hardship case, Parker, the court granted the divorce because the husband agreed to make a secured purchase of an annuity providing comparable benefits. ^28/ In a more recent case, Milne v. Milne, ^29/ the court ordered the husband to pay the wife a lump sum equal to one half the amount which he (or his estate) would be entitled to on his retirement or earlier death. Thus, this decision adopts a cash out option comparable to that available in California, at least if the husband has financial resources other than the pension with which to make the payment.

However, there are serious impediments to an English court dividing pension entitlements in kind. Like ERISA prior to 1984, English pension law prohibits assignment of rights under occupational pension schemes. ^30/ It also prohibits surrendering or commuting benefits upon a change of employment. ^31/ In addition, current English law requires courts to consider ordering settlements such that financial obligations between the parties will terminate as soon after a decree is granted as is just and reasonable. ^32/ This policy of speedy disposition militates against any division of pension benefits in kind, for a spouse is precluded under English pension law from assigning his or her right to a pension upon divorce. Thus, the only way for his or her spouse to get an interest in the pension is to wait until payout which could be years after the divorce and certainly not within the period of a speedy disposition required by law.

Nonetheless, English courts recently took a novel approach which, in effect, resulted in an in kind division of pension benefits. ^33/ While respecting the traditional English treatment of pension benefits, the House of Lords permitted a spouse to take an interest in the employee spouse’s pension under section 24(1)(c) of the Matrimonial Causes Act 1973. ^34/ The employee spouse in Brooks v. Brooks ^35/ was self-employed and had established a retirement plan subsequent to the date the parties were married in 1977. Among its features, the plan permitted the participant to defer a portion of his pension in order to provide a pension to his spouse if he predeceased her. It also provided for a lump sum death benefit if he died while still employed. The employee spouse was the only plan participant.

The court viewed the pension as a "post-nuptial settlement," meaning that it was entered into for the purpose of creating a future provision for both or either of the parties to a marriage. Critical to the court was the fact that the plan provided for a survivor’s annuity and a death benefit. Based on these facts, the court concluded the employee spouse entered into the plan "with the intention of providing for the retirement of himself and his wife." ^36/ Section 24(1)(c) allows a court to vary post-nuptial settlements at divorce. Thus, the wife could have an interest in her husband’s pension despite her divorce.

The court was careful to narrow the scope of its opinion. It specifically stated that not every employee spouse’s pension constituted a marriage settlement. More importantly, it specifically provided that its analysis did not apply to "multi-member" plans and suggested if courts wanted to split pensions in such plans, legislation was needed. ^37/ Thus, the court would seem to have limited the application of its opinion to cases with facts similar to Brooks, i.e., a plan covering only a self-employed individual which originated subsequent to marriage and provides for a survivor annuity and/or death benefit.

The court, in what appears to be an attempt to influence future legislation involving the division of a participant’s interest in a multi-member plan, discussed at great length a comprehensive review prepared by a working group established by the Pensions Management Institute in conjunction with the Law Society. ^38/ The group’s report, Pension and Divorce, published in May 1993, recommended two different types of in kind divisions depending on whether the divorce occurred before or after retirement. If the divorce occurred after retirement, the group recommended earmarking part of the retiree’s pension benefit for direct payment to the spouse. If the divorce occurred before retirement, the group recommended valuing the employee spouse’s pension and directing a transfer of part of it to another pension arrangement entered into by the spouse. The court further noted that the pension law review committee in its 1993 report Pensions and Law Reform "endorsed the thrust of the working party’s recommendations." ^39/

Thus, although English law currently treats most pension entitlements more in terms of financial maintenance (ordered at a court’s discretion) rather than as divisible property (awarded a nonemployee spouse as a matter of right), under Brooks, it appears English courts have taken the first steps toward allowing some sort of division in kind. This ambiguity in English law and the traditional differences with California law governing allocation of pensions in divorce can lead to difficult issues of conflict of laws.

II. CONFLICT OF LAWS ISSUES

Conflict of law questions arise whenever a case involves sufficient factors pertaining to more than one country. The laws of each country having jurisdiction over a case (the forum) provide for applying the law of another country where appropriate. For this purpose, the states of the United States are generally regarded as separate countries. ^40/

Given the mobility enjoyed by individuals today, divorce proceedings often raise difficult conflict of laws issues. Rather than survey the law of each state and country, the discussion in this section will be limited to choices regarding the application of English or California law. Although the specifics of English and California law may differ from other jurisdictions, the general legal concepts reflected in the law and the issues intended to be addressed by the law are the same. And the principal result of the English and California conflict of laws rules in marital disputes is that courts in neither jurisdiction are likely to apply the law of the other.

A. English Conflict Of Law Rules In Family Law

In general, jurisdiction is the critical element governing conflict of law choices by English courts hearing marital disputes. Until recently, jurisdiction in such cases depended solely on domicile. ^41/ Domicile, in turn, was established by applying complicated rules involving domicile of origin, domicile of choice, and domicile of dependency. ^42/ In short, an individual’s domicile is his or her country of birth or the country in which he or she actually resides with an intention to remain. ^43/

1. Jurisdiction Over the Dispute Itself

Prior to 1937, jurisdiction to hear marital disputes depended solely on the husband’s domicile. ^44/ Thus, if a husband became domiciled in another country, the wife could not initiate divorce proceedings in an English court.

Parliament first redressed this inequity by providing English courts with jurisdiction to hear suits brought by a deserted wife. ^45/ Subsequently, courts were granted jurisdiction in divorce or annulment proceedings brought by a wife who was resident in England for three years. ^46/ Parliament reenacted these provisions as late as 1973. ^47/ In addition, Parliament expressly directed the court in such cases to apply English law as if both parties were domiciled in England. ^48/

Later in 1973, however, Parliament overturned a century of settled law and greatly broadened the jurisdiction of English courts to hear marital disputes brought by one spouse in cases in which the other spouse had relocated. ^49/ First, the Act provided that a married woman’s domicile no longer corresponds to her husband’s, but is determined just like that of an independent individual. ^50/ Second, the Act provided that a court has jurisdiction over separation, divorce, and annulment proceedings if (and only if) either party is domiciled in England or was habitually resident in England for one year. ^51/

While redressing the inequity between men and women in these cases, the Act also repealed the prior rule that English law governed in cases brought by deserted married women. ^52/ However, the Law Commission stated, when it recommended Parliament’s adoption of the Act, that the Act was not intended to alter the rule. ^53/ On this view, the rule remains that if an English court has jurisdiction over a marital dispute it will apply English law.

2. Enforcement of Maintenance Orders

Under the common law of England, if a court has jurisdiction over the principal suit, it is free to exercise its broad powers to order financial settlements and maintenance, irrespective of the location of any property involved. ^54/ Again, English courts focus on maintenance and support rather than property settlement.

In addition, Parliament has provided for reciprocal enforcement of specified maintenance orders of foreign courts sitting in countries that grant similar reciprocal treatment to United Kingdom orders. ^55/ The Act allows enforcement of orders for a lump sum payment. ^56/ It has been extended to include individuals who own assets in the United Kingdom. ^57/ However, it is unclear whether this willingness to enforce foreign orders extends to an otherwise prohibited in kind division of an English pension. In addition, the United States and United Kingdom are not parties to a reciprocal convention.

Assume two individuals domiciled in California marry there. They then establish domicile in England, where one of them is employed and accrues an English pension. Assume the nonemployee spouse then reestablishes California domicile, while the employee spouse remains domiciled in England.

If the employee spouse files suit for divorce in England, the court would have jurisdiction and would apply English law. If the nonemployee spouse in California seeks a property division under California law, it is doubtful that the English court would enforce a division of the pension in kind. ^58/

First, the English court could conclude that California’s authorities lacked jurisdiction over the pension assets or, more likely, the pension plan or trust itself. ^59/ In addition, the English court might be willing to extend the doctrine that foreign divorces may go unrecognized if recognition is contrary to public policy. ^60/ In any event, an English court is unlikely to enforce an assignment of a portion of the employee spouse’s pension to the nonemployee, since English tax law prohibits assigning pensions. ^61/

A similar result follows if the situation were reversed. If the nonemployee spouse remains in England and files suit, English law would apply. The pension would not be divided in kind.

B. California Conflict of Law Rules in Family Cases

California has rules of domicile similar to the English rules, i.e., a married woman can have a domicile other than her husband’s. Its personal jurisdiction rules are similar as well, with personal jurisdiction being bestowed as a result of residence over sufficient time. However, in characterizing property as separate or community for purposes of a general division of property, California courts will often apply the law of the jurisdiction in which the property is "located" (in a technical sense). ^62/ But this willingness to apply the laws of other states or countries is limited to property acquired prior to the marriage. ^63/

Thus, the general rule is that personal property is separate or community under the law of the place where the owner was domiciled when the property was acquired, regardless of the actual place of acquisition. ^64/ However, the scope of this general rule is limited by a statutory provision creating a separate type of property known as "quasi-community property." This is defined as any real or personal property acquired by either spouse while domiciled elsewhere which would have been community property if the acquiring spouse was domiciled in California at the time of acquisition. ^65/ A pension acquired in England during a marriage would be "quasi-community property," since pensions are community property if acquired in California. Quasi-community property is subject to equal division between the parties just like community property in general. ^66/

Returning to the hypothetical situation, California in general would apply California law regarding the characterization and division of the English pension. If the employee spouse remains in England and the nonemployee spouse returns to California and files for divorce, the California court might order a division of the pension in kind. ^67/ Again, English courts might be unwilling to enforce such an order. ^68/

Alternatively, if the nonemployee spouse remains in England and the employee spouse returns to California and files for divorce, the California court would apply California law in dividing the property. Of course, the potential unenforceability of a division in kind might be considered in deciding how to treat the nonemployee spouse’s interest in the pension. In addition, California might apply English law if the connection of both parties and their property to California is extremely tenuous. ^69/

In sum, English courts virtually always apply English law. Although some California courts look to the laws of other jurisdictions to characterize property in some circumstances, they would apply California law in the hypothetical situations this article has considered. The real conflict of law issue is therefore the likely unwillingness of English authorities to enforce a division of pension entitlements in kind. Despite the effort to achieve uniform reciprocal recognition of divorce and financial or property settlements and the enhanced attention paid to pension benefits in marital disputes, the different treatment of pensions in divorce persists.

III. PRACTICAL PROBLEMS FACED BY ATTORNEYS IN THE CROSS-BORDER DIVISION OF PENSION ASSETS

In addition to those discussed above, various problems may arise for an attorney attempting to secure the division of pension assets in a divorce. First, it may be difficult for the nonemployee spouse to obtain information about a foreign pension. Second, difficulties may arise in valuing the foreign pension. Third, numerous procedural obstacles may be present.

A. Obtaining Information

ERISA requires disclosure of information to persons who are or may become beneficiaries of a plan subject to ERISA. ^70/ Generally under ERISA, the employee’s spouse is required to be the beneficiary of the employee’s interest in an ERISA plan. ^71/ Therefore, the spouse is generally legally entitled to obtain the necessary information from the employer or other plan administrator. Most foreign countries, on the other hand, do not have statutes comparable in scope to ERISA. In such cases, the employer is usually responsible for determining what information may be provided and generally has little motivation to provide a nonemployee spouse information which could be used in litigation against its employee. Thus, it may be very difficult for a nonemployee spouse to obtain information regarding the employee spouse’s pension.

B. Valuation

Even if information about the foreign plan is available, valuing the benefits may be a formidable challenge. In the United States, most pensions are required to be funded. ^72/ However, this is not necessarily the situation abroad. Germany, for example, does not require the funding of pension plans, believing that setting aside assets in a separate fund for employees discourages productive use of such assets in the employer’s business. ^73/ Thus, for example, it may be difficult to value the employee spouse’s interest in a German defined contribution retirement plan, where the employee has an individual account balance, if the contributed assets are reinvested in the employer’s business rather than set aside in a separate pension fund. Although the employer has committed to paying the amount in the employee’s account upon retirement, it is uncertain what the value of the account is until retirement because of the uncertainty as to whether the employer will be able to honor the obligation upon retirement.

Even if the value of the benefits is easily ascertainable, they will normally be determined in the currency of the country in which the plan is located. Consequently, this value must be translated into dollars for comparison with other assets available for equitable distribution. In countries with currency restrictions, the exchange rate may be difficult to determine, and may vary depending on whether the "official" or some black-market exchange rate is used. Even where currency restrictions are not a problem, differences in the cost of living may indicate that some measure other than the exchange rate should be used. For example, suppose that a husband in a third world country has the equivalent of $2,000 in his pension fund. Where he lives, $2,000 would be enough to buy a fairly luxurious house. The wife has a modest house in the United States, valued at $60,000. Should the husband be permitted to keep the $2,000 and buy himself a house? Should the wife be required to sell her house and turn over $29,000 of the proceeds to him for an "equal" division of property?

The problems are multiplied when the pension is not immediately payable or is payable over a period of years or for life. In the United States, determining the present value of such a right is a complicated process generally requiring actuarial calculations based on interest rates, mortality, etc. ^74/ The process is further compounded by a foreign country’s differing inflation rate, changes in the exchange rate, and the fact that the likely growth of non-U.S. investments must be considered. A United States actuary may be unfamiliar with local conditions and thus unable to make the calculations. In addition, many foreign countries may lack well-trained pension actuaries. Therefore, valuing foreign pensions at the time of divorce may be a very difficult process.

C. Procedural Obstacles

Even if a party is able to find out about a foreign pension plan and value it, further difficulties may arise. If the plan is located abroad, the divorcing spouse may have to contend with the foreign court system. In addition to the conflicts and choice of law rules discussed above regarding California and England, a U.S. attorney for the nonemployee spouse may have to confront numerous procedural differences in a foreign court system. A foreign country will have its own rules about which court has jurisdiction over a pension and may require proof that one or both parties is a resident — which may no longer be true — before any court will have jurisdiction. ^75/ In addition, the rules for procedural matters such as service of process and discovery may be very different abroad. For example, taking a deposition may actually be illegal in some countries. ^76/ In addition, wide-ranging discovery procedures like those in the United States are virtually unknown abroad. ^77/

IV. CONCLUSION

English law, as it pertains to the division of pensions in divorce, appears to be evolving into a structure similar to that of the United States. It has already embraced the cash out option and with Brooks v. Brooks, ^78/ has taken tentative steps toward embracing the in kind method as well. This would be in line with the trend in other industrially developed countries such as the United States and Germany.

Whether England eventually passes legislation permitting the in kind division of pensions is relevant to the United States practitioner, for English courts always apply English law when faced with a conflict of laws. Obviously, the application of current English law would defeat the practitioner’s efforts to enforce a QDRO granted in the United States because of England’s rejection of the in kind method.

Using England as the example, it is thus important for the practitioner, when faced with a cross-border divorce, to first focus on the conflict of laws rules which not only apply in his own jurisdiction but also the jurisdiction where the other party resides. Only then will the practitioner know which jurisdiction’s pension division rules will apply. The attorney must then determine what other obstacles he or she must overcome, such as obtaining information on foreign pensions, valuing pension assets, and becoming familiar with a foreign court system. Once the practitioner has determined the applicable law and the potential obstacles to obtaining a favorable settlement for his or her client, he or she may commence developing a strategy to best represent the client.

Footnotes

See, e.g., Hunt v. Hunt, 698 P.2d 1168 (Alaska 1985); Re Marriage of Smith, 817 P.2d 641 (Colo. App. 1991); Lulay v. Lulay, 591 N.E.2d 154 (Ind. App. 1992); DeWan v. DeWan, 455 N.E.2d 1236 (Mass. App. 1983); Stubbe v. Stubbe, 376 N.W.2d 807 (S.D. 1985).