specially concurring.
I concur in the majority opinion because the current state of the law requires this harsh result; however, in my view, it is time for this jurisdiction to review its treatment of pension plans in domestic relations cases because of the obvious injustices that occur by application of outdated property law analysis.
The modern economic reality is that private pension and retirement plans are not gratuities derived from the beneficence of the employer; rather, they are an integral part of the compensation package for which employees work, and as such, they are properly part of the consideration earned by the employee during the marriage. See In re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976). This is true regardless of whether the pension plan is entirely supported by the employer, or whether there is a mandatory employee contribution in addition to an employer contribution. To draw distinctions between the types of pension plans, as our law now does, is artificial, unnecessary, and promotes inequities. Colorado, as did California in In re Marriage of Brown, supra, should limit or reverse previous authority and recognize that all pension plans are choses in action, and thus, are marital property subject to division under § 14-10-113(2), C.R.S.
In facing up to the conclusion that earlier authority erred in not treating unvested pension rights as property subject to division, the court in Brown stated:
“This characterization of pension rights has, and unless overturned, will continue to result in inequitable division of community assets. Over the past decade, pension benefits have become an increasingly significant part of the consideration earned by the employee for his services ... it often represents the most important asset of the marital community.”
Here, as is frequently the case, other than the residence of the parties, the only significant financial asset they acquired during the marriage is the pension plan. The husband worked for the employer since 1950 and is now 60-years-old, with the result being that the cash value of the plan is approximately $250,000. If he retired, he could receive this quarter million dollars in a lump sum, or at his election, by periodic payments.
Husband points out that if he keeps working and dies before he retires, he loses the value of this asset. However, because the court can assure that the risk of divestment is shared equally by the parties, as has been done in other states, this risk of possible divestment should not lead to ignoring the pension plan as a property asset. See In re Marriage of Brown, supra; Janssen v. Janssen, 331 N.W.2d 752 (Minn. 1983); Hebron v. Hebron, 116 Misc.2d 803, 456 N.Y.S.2d 957 (N.Y.Sup.Ct.1982); In re Marriage of Papeck, 95 Ill.App.3d 624, 51 Ill.Dec. 114, 420 N.E.2d 528 (1981).
In my view, it is no answer that the domestic relations court can overcome the obvious inequity of treating this pension plan as the sole property of the husband by ordering large maintenance payments. This “solution” just does not work in a case where the wife is employed or otherwise does not meet the threshold requirements for an award of maintenance contained in § 14-10-114(l)(a) and (b), C.R.S. See In re Marriage of McVey, 641 P.2d 300 (Colo. App.1981). Moreover, even if, as apparently is the case here, the wife does qualify under that statute for an award of maintenance, the husband’s death or her remarriage could terminate that award.
Interpreting pension plans of the type at issue here as choses in action, in my view, is far preferable to the unfairnesses attendant to the present rules in Colorado. The underlying goal of a property distribution in a dissolution of marriage action is justly and equitably to give to each spouse a fair *1198share of the marital assets. Section 14-10-113(1), C.R.S.; Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972). That simply is not being accomplished under the present law in situations where pension plans of the type at issue are involved.