Domestic Violence and Pensions in Divorce

The Washington State Supreme Court has reversed a lower court to allow a woman to share her husband’s pension in divorce. In the case of In re Muhammad, Case No. 75061-1 (Wash. March 24, 2005) (which has drawn attention from women’s advocacy groups nationally), the Supreme Court said the trial court appeared to have determined that the wife’s seeking a protective order against the husband caused him to lose his job and that the trial court therefore seemed to “punish” the wife by denying her a share of her husband’s pension. Here’s a press report on the case from the Seattle Post Intelligencer.

Divorce courts in Washington State are expressly forbidden from considering fault in property division. The Appeals Court had affirmed the decision of the trial court below, in which the trial judge had said this:

I think what’s probably most troubling here in regard to how you try to resolve the rather minimal property issues that we have is the protection order problem. She had to know or at least should have known or should have been told that if she proceeded with this protection order, that he was not going to have a job and he wasn’t going to have an income and he wasn’t going to be able to pay his debts, let alone the mortgage payments.

Now, from her side of the fence obviously that’s a catch 22 because she felt she needed the protection order, and if she felt she really needed the protection order, then she had to proceed with that. But then I think if that’s the situation, she has to recognize the consequences and you can’t just ignore the fact that there are consequences. Fairly substantial consequences. Those consequences have been taken into consideration in terms of trying to make the distribution somewhat equitable.

The Supreme Court focused on the trial court’s apparent logic in its opinion:

Beyond the highly questionable division of the parties’ assets and liabilities, the language used by the trial court in the oral ruling and written findings of fact also suggests an improper consideration of Gilbert’s “fault.” For instance, statements regarding the trial court’s belief that Gilbert obtained the protective order because she “sought to punish” Muhammad, and that Gilbert had to “recognize the consequences” that were “taken into consideration in terms of trying to make the distribution somewhat equitable,” have no discernable purpose other than to attempt to justify the use of “fault” in dividing the property. See VRP (Jan. 24, 2002) at 2-4. Most striking of all are the written findings of fact, which read like a logical syllogism linking Muhammad’s unemployment and purported unemployability to Gilbert’s decision to obtain the protective order. See CP at 17. Specifically, the fifth finding in section 2.20 of the findings of fact and conclusions of law states that Gilbert “knew, and has known for some considerable period of time, that by seeking and making the protection order permanent she would effectively terminate her husband’s ability to work.” Id. This finding begs the question, what purpose could the trial court have had for taking notice of Gilbert’s “knowledge” about the effect of the protective order except to establish causation and assign fault? No acceptable answer to this question is apparent.

2 comments

  1. Lee Borden says:

    It depends on what benefit election he made and what beneficiary election he made. He had the right to elect a straight life annuity rather than any kind of dual life annuity, which in most plans would mean that his pension continued only during his life. Even if he chose another life for the benefit (like a joint and survivor annuity), he also had the right after divorce to name someone other than you as the beneficiary (like a new spouse or a family member). The easiest way I know to find out is to contact the Plan Administrator for the plan and ask.

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