Divorced Spousal Rights to Husband's Pension
Case law has articulated that "a divorced spouse is not protected by the explicit terms of the statute," and a divorced spouse may waive benefits without following the explicit requirements of the statute. Hurwitz v. Sher, 982 F.2d 778, 783 (2d Cir. 1992), cert. denied, 508 U.S. 912, 113 S. Ct. 2345, 124 L. Ed. 2d 255 (1993);
see also, e.g., Fox Valley & Vicinity Constr. Workers Pension Fund v. Brown, 897 F.2d 275 (7th Cir.), cert. denied, 498 U.S. 820, 111 S. Ct. 67, 112 L. Ed. 2d 41 (1990).
In Rahn, the court concluded that Employee Retirement Income Security Act of 1974 consent requirements relate to the waiver of survivor benefits only, and the statute is "silent as to the waiver of other types of pension benefits." 914 P.2d at 465.
In reaching its decision, the Colorado Court of Appeals reasoned that the "dissolution of marriage proceedings, by definition, terminate the status of the spouse prior to the death of the participant, thereby, also by definition, disqualifying that spouse from being, or ever becoming, a surviving spouse" and "the consent restrictions of 29 U.S.C. 1055 (c)(2)(A) are designed to protect a surviving spouse, not a . . . former spouse." Id. at 466-67.