Supreme Court justices stay quiet in hearing on military divorce

The justices of the Supreme Court were unusually quiet earlier this week in a case that will decide how military retirement benefits ought to be divided in divorce. According to a report in SCOTUSblog, remarks "fly fast and furious from all the justices" during a typical hearing, leaving lawyers little time to speak.

The justices' silence, meanwhile, is frustrating. When they ask a question, or make an offhand-seeming comment, it can be an indication of how they will ultimately decide a case. When they say nothing, however, it is nearly impossible to tell which way they may lean.

The stakes are high when it comes to retirement benefits

The current case is complicated. It concerns the Uniformed Services Former Spouses Protection Act -- a 1982 law that allows ex-spouses of military members to receive retirement benefits in the event of a military divorce. The ruling could drastically change the interpretation and implementation of the law.

At the center of the controversy is a couple that divorced in 1991. The husband had served in the Air Force for twenty years and had agreed, as part of the divorce decree, to split his retirement pay with his former wife 50-50.

However, in 2005 the husband opted to forego part of his retirement pay so that he could receive disability benefits instead. But by reducing his own pay, he was reducing his former wife's pay as well -- the 50-50 split still pertained, even though the wife did not have access to any share of the disability benefits. Understandably, she brought a lawsuit in the hopes of restoring her payments to the sum they'd always been.

What are the arguments?

The husband's lawyer contends that his client's disability benefits should not be factored into the divorce payments. This would, he claims, effectively penalize the husband for having been injured.

Despite their relative quiet, some justices seemed to disagree with this reasoning. Justice Sotomayor, for example, suggested that the husband may have been impinging on his former wife's property rights by altering his retirement pay without consulting her or compensating her. Justice Ginsburg argued that, in cases where retirement benefits are changed after a divorce decree is in place, the decree itself ought to be modified as well.

When the case is finally decided, the outcome will be consequential. It could make veterans' disability benefits newly susceptible to division; conversely, it could leave former spouses of military personnel unusually vulnerable to financial change. And while a few justices indicated their decisions on the matter, we'll have to wait for the verdict to see where the others stand.

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