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Supreme reconsideration

Remember how the Supreme Court justices limited the question presented in a case about how to split up pension benefits in a divorce, only to completely second-guess themselves during oral argument?

Lawyers USA wrote about oral arguments in Kennedy v. DuPont Savings Plan Administrator earlier this month (sub. req’d). During arguments, the justices openly questioned whether they should change their minds about limiting the question in the case to whether a qualified domestic relations order is required to divest a spouse of pension benefits. And they spent a lot of time asking questions about what rule should govern the decision about who gets the benefits if the QDRO is not required.

“I’m sorry we limited” the question, said Justice Stephen Breyer one point. “I’m tempted to try to decide it.”

Well, the Court is going to do just that. Yesterday the Court ordered the parties in the case the brief the issue of whether the the “plan documents rule” should govern the determination. In that case, the beneficiary card of the pension would dictate where the funds go. If not, the divorce decree, in which the ex-spouse in the case divested her rights to the pension fund, would govern.

Parties and amici have until Nov. 10 to file the supplemental briefs. More here from SCOTUSBlog and here from Lawyers USA.

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