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10 USC 1408 Uniformed Services Former Spouses Protection Act
Learn more about 10 USC 1408 Uniformed Services Former Spouses Protection Act.
Payment of retired or retainer pay in compliance with court ordersA very lengthy opinion. The parties met in 1930. Soon after meeting, the wife became pregnant, and the parties began living together in October 1930. Between 1930 and 1943, there were seven children born to the parties. The parties continued to live together July 1947, when the wife left their home. As this Court discussed in the original Rivero Opinion, AD 424 was introduced in 1987, and at one point included a provision setting off child support for shared custody over a 40%) time-share threshold. The legislature considered a number of proposed hypothetical intended to reflect likely factual scenarios to which the guidelines would apply.' Ultimately, that provision was deleted; another provision) which ultimately became the statutory "ceiling" provision (called a "cap" in this part of the legislative history), was added." At the time of the marriage, the husband had a half-interest in a lawn business. Seven years after marriage, the lawn-care segment was sold (and the wife signed as a seller), and the business name was changed to show it was a nursery. The district court refused to recharacterize the business as community. The Supreme Court found the wife’s argument that the business change terminated the earlier business, rendering the business upon divorce community property, "unpersuasive." The Court held that transmutation required a showing by clear and convincing evidence. While the wife signed a "stock transfer restriction," no shares were ever issued to her. The husband testified that he never intended to make a gift to the wife of any interest in the property. The Supreme Court held that "the appearance of [wife’s] signature as a shareholder on certain documents, without more, is not clear and convincing evidence of transmutation." Id. at 858. The premiums for Option A work like normal SBP premiums, in that they come "off the top" of benefits payable. Premiums for Options B and C are paid by way of that reduction, plus an actuarial reduction in the benefits paid. This is how the system accounts for coverage being in existence years before eligibility for retirement benefits is reached. Members who entered service before September 8, 1980, have retired pay equal to terminal basic pay times a multiplier of 2.5 percent times years of service, but is limited to 75 percent. Thus, retired pay equals 50 percent ofterminal basic pay after 20 years of service, and "tops out" at 30 years. One of the most important variables in determining the proper amount of child support is the form of custody ordered by the court. Embedded in the child support guidelines of all the states is the presumption that the court will order "standard visitation" of 20% overnight visitation with the non-custodial parent. This 20% figure is based on 73 days: every other weekend (52 days), plus two weeks in summer (14 days), plus Mother's Day or Father's Day (1 day), plus Thanksgiving or Christmas (2 days), plus birthdays (2 days), plus a miscellaneous day (1 day). See Karen Czapanskiy, "Child Support, Visitation, Shared Custody and Split Custody," in Child Support Guidelines: The Next Generation 43, 44 (U.S. Dep't Health & Human Services, Office of Child Support Enforcement, 1994); Karen Czapanskiy, Child Support and Visitation: Rethinking the Connection, 20 Rut.-Cam. L.J. 619 (1989). When the parents have some form of shared physical custody that is over this 20%, the presurnption embedded in the guidelines no longer applies, and an adjustment to the support order should be made. The U.S. Supreme Court majority reversed, holding that the USFSPA did not constitute a total repudiation of the pre-emption it had declared in McCarty. Since the statute defined "disposable pay" as what was divisible, and excluded disability pay from that definition, the Court concluded that state courts could divide only non-disability military retired pay.1 The dissent echoed the conclusions reached earlier by the California Supreme Court in Casas v. Thompson - that the gross sum of retirement benefits was available to the state divorce court for division.2 The benefit of any upward deviation to M and child, who have income of$6,OOO per month, would be insignificant compared to the benefit to F and child, who have income of $2,000 per month. Thus, no deviation would be granted and support would be set at $500 per month. Unfortunately, the information posted by DFAS, while technically accurate, is somewhat misleading to a practitioner trying to find a simple route to collect a child support order. For example, the DFAS web site4 giving instructions for collecting "child and/or spousal support" from "active, reserve, and retired members of the military" (and civilian employees of the Federal government) does not mention the simple process above for collecting child support from military retired pay. If it is determined that the child is not in danger, the Petition for Return (and all the necessary accompanying documents) can be personally served by a process server. If counsel determines that there is a danger, or the decision has been made to seek a warrant in lieu of writ of habeas corpus (see next subsection), the assistance of the local law enforcement agency can usually be obtained to serve the documents on the respondent. In the decade following Mansell, the focus shifted from looking for "indemnification" or other language that such recharacterization is prohibited, to looking for some language indicating that recharacterization is permitted, and requiring reimbursement of the former spouse unless the divorce decree permitted the member to convert the benefits post-divorce.7 Over that time, a nearly-uniform consensus emerged throughout the country that a retiree simply is not permitted to recharacterize the former spouse’s share of the retirement benefits as his own separate property disability benefits, unless there is some indication on the face of the divorce decree that such a post-divorce recharacterization is permitted. A very lengthy opinion. The parties met in 1930. Soon after meeting, the wife became pregnant, and the parties began living together in October 1930. Between 1930 and 1943, there were seven children born to the parties. The parties continued to live together July 1947, when the wife left their home. The reason for not only permitting, but encouraging the use of such indemnification clauses was explained well by the Minnesota Court of Appeals in Gatfield4: it basically ensures that the divorce courts are free to enforce the parties’ declared intent as a matter of contract law.5 Any court reviewing a decree seeking intent to indemnify must be careful to not give retroactive effect to either the USFSPA, or any case interpreting it (i.e., Mansell) so as to defeat an existing flow of payments to a former spouse. As stated by various courts over the years, it would "thwart the very title of the Act, the ´Uniform Services Former Spouses’ Protection Act,’ to construe the law as preventing a spouse from actually receiving a court ordered portion of military retirement benefits."6 Concerned that the father would take the child to Britain, the mother first obtained an order prohibiting the child from being removed from Chile, and then violated the very order she had obtained by taking the child to Texas without the father’s or the court’s consent. Despite the ongoing Chilean divorce proceedings, the mother filed for divorce in Texas. The Texas courts granted the father visitation (in Texas) but denied his show-cause request to return the child to Chile. In the cases cited above, and others, the post-divorce disability award sought and awarded to the retiree was not allowed to block the spouse’s right to continued payments under the terms of the decree. Even if Mansell does have to be considered in post-divorce recharacterization cases, courts have mandated that former spouses must be compensated, by awards of other property, or alimony, or (most commonly) dollar-for-dollar compensation of all amounts that would have been paid but for the recharacterization. The Supreme Court affirmed. The Court noted that a failure to object in the district court barred the subsequent review of the objection citing to McCullough v. State, 99 Nev.72, 657 P.2d 1157 (1983). The Court noted that the husband failed to move for post-judgment relief or utilize any of the available procedures to preserve his objection on this issue. Because of that, the husband raised this issue for the first time on appeal. and the Court did not need to consider it citing to McKay v. City of Las Vegas, 106 Nev. 203, 789 P.2d 584 (1990). Some critics complain that such a formula gives the non-employee former spouse an interest in the employee spouse¡¯s post-divorce earnings, at least where the divorce occurs while the employee is still working. They argue that the spousal share should be frozen at the earnings level at divorce; a minority of States, including Texas, have adopted this approach, sometimes in cases that do not appear to have contemplated the actual mathematical impact of the decision reached.1 This minority approach undervalues the spousal interest by giving no compensation for deferred receipt, and also contains a logic problem, at least in a community property analysis, of treating similarly situated persons differently. Second, by way of Concurrent Receipt (also called "Concurrent Disability Pay," or "CDP," but later re-titled "Concurrent Retirement and Disability Pay" or "CRDP"),3 all retirees with 20 years of service and VA disability ratings of 50% or higher, had their retired pay offsets phased out over a ten year period. In other words, the military retired pay previously waived for disability pay would be slowly restored, until the retirees were receiving both their full retired pay and the VA disability payments. Because the restored money is the fully-divisible longevity retired pay that was waived for VA benefits in the first place, it is "retired pay." Under the FLS proposal, an exactly equal time share is automatically considered to be "joint physical custody." However, it is imperative that if a time share falls within the 40% to 49% range, there should be no automatic or rebuttable presumption that joint physical custody is established. In those circumstances, the trial court must exercise its discretion as to whether a time share of 40% to 49% qualifies as joint physical custody under the specific facts and circumstances of the case before it. 4. a. The percentage of time a child spends with each parent shall be calculated by determining the number of overnights for each parent and dividing that number by three hundred sixty-five (365). SUP> The next year, in Putterman v. Putterman,9 the Nevada Supreme Court held that both the husband’s financial misconduct in the form of refusing to account to the court concerning earnings and other financial matters, and his lying to the court about his income, provided compelling reasons for an unequal disposition of community property.10 The Court also noted, in dicta, that other possible "compelling reasons" for an unequal division of community property could include negligent loss or destruction of community property, unauthorized gifts of community property, and even, possibly, compensation for losses occasioned by marriage and its breakup.11 You can find 10 USC 1408 Uniformed Services Former Spouses Protection Act Hearing on the Petition for Return Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Divorcing the Military and Serving the Civil Service Section II Subsection Child Support exceeding the statutory presumed maximum The Marren and Page Case List Hermanson v Hermanson Feral paralegals part 2 Nevada QDRO lawyer Divorcing the Military and Serving the Civil Service Section III Subsection The Marren and Page Case List Oren v Deptartment of Human Resources The Marren and Page Case List The Marren and Page Case List Kelly v Kelly Todkill v Todkill Peters v Pete Rivero v Rivero Opinion Pickerings Discussion Partition Actions Divison of Military Retirement Benefits In Divorce Section VIII Death of Spouse Rivero v Rivero Opinion III B Model Decree of Divorce Clauses Dividing MRB Garner fraud on the court client need not sign order 10 USC 1408 Uniformed Services Former Spouses Protection Act available at lvfamilylawyer.com by clicking above. Site Map The Marren and Page Case List URESA jurisdiction Ogawa extending time to file under UCCJEA Rivero State Bar Amicus Brief Part One What is Considered Community Property Divorcing the Military and Serving the Civil Service Section II Subsection The Marren and Page Case List Arnold v Arnold The Marren and Page Case List McGlone v McGlone |