A Brief Aside Regarding Disability and the TSP

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Any such argument is improper. The relocation of any party after filing of a motion to modify child support is entirely irrelevant to the jurisdiction of the court. No such argument should ever be made, or entertained. An obvious lesson of the Harms case is to showcase the vulnerability of the legal position of overseas spouses. If they choose to defend themselves in foreign divorce actions, and litigate retirement issues, they will receive orders unenforceable under U.S. federal law, and have to face res judicata arguments as well. If they try to "reserve" the question, they might not ever be able to get a State court to find it has jurisdiction to enforce the "reserved" rights. And if they ignore the action, the member will be able to take a judgment against them on all contested issues, by default (again, with res judicata possibilities looming). The record contains substantial evidence to suggest that the tackiness in filing was due solely to delay inherent in the procedures of the clerk’s office and not to any dilatory conduct by [wife] or her attorney. We admonish the Clerk of the Eighth Judicial District Court that continued disregard of our directive in Huebner to stamp the date of receipt on every document received for filing will result in the imposition of sanctions. Whether States follow a "payment upon eligibility" or "payment upon retirement" rule is another one of those doctrines which is not at all obvious from the label applied by the individual States, but again is usually hidden in their decisional law. Which way the State goes on this question can have a huge impact on the value of the retirement benefits to each spouse. Another variant, found in Europe, considers property individual until divorce or death, at which time it is essentially treated as though it were community property.5 In early 2008, a proposal was put before the Court on the administrative docket ("ADKT") to fix the problem by re-establishing the mid-stream recusal policy and recusal lists for personal bias. After a year and a half, however, the Court simply amended SCR 48.1 to permit a second peremptory challenge when a case is reassigned for any reason other than the exercise of a peremptory challenge. For a spouse - or former spouse - to continue receiving money after death of the member or participant, there must be specific provision made for payments after the death of the member, by way of a separate, survivorship interest payable to the former spouse upon the death of the member. Once "federal jurisdiction" is obtained - by appearance, domicile, or residence (for purposes other than military assignment) - the forum court is fully empowered to deal with the retirement benefits as property, as it would any other asset within the jurisdiction of the court. It is good practice to recite the basis for jurisdiction over the service member on the face of the decree or other order dealing with the military retirement benefits. In Nevadans for Nevada v. Beers, this Court held that "[t]he Nevada Constitution should be read as a whole, so as to give effect to and harmonize each provision."1 Absent a practical interpretation of the phrase "next general election," however, holding the seat vacant as of 2008 election would render the provisions of Section 5 nugatory, because it would not be possible for the voters to elect a judge to Department D "at the general election which immediately precedes the expiration of the term of his predecessor." Second fallback provision; direct payment by Member for any month in which the order not yet in effect, or in which the pay center fails to provide the contemplated payment and allotment is not possible. The California Supreme Court adopted the Court of Appeals decision, with a few more changes, as its own. It held that the 1974 case law permitting division of military retirement benefits could be retroactively applied, that actions to partition omitted assets were explicitly permitted under California law, and that McCarty was not to be construed as acting retroactively. When the parties moved to Nevada, they purchased a condominium in the wife’s name. The wife then filed for divorce claiming the property as her sole and separate property. The district court ordered that the condominium was the wife’s sole and separate property. The district court also valued and divided the parties’ business. C) if enrolled in a full-time course of study in an institution of higher education recognized by the Secretary of Defense for the purposes of this subparagraph, is under 23 years of age and is dependent on the member or former member for over one-half of the child's support. Moreover, the district court abused its discretion by modifying the custody agreement to reflect a 50/50 timeshare without making specific findings of fact demonstrating that the modification was in the best interest of the child. Shelton v. Shelton, 119 Nev. ___, 78 P.3d 507 (Adv. Opn. No. 55, Oct. 29, 2003), cert. denied, 124 S. Ct. 1716 (2004), involved a stipulated decree calling for the former spouse to receive a certain sum of money out of the military retirement benefits each month. After divorce, the member applied for and received disability benefits, which requires a dollar-for-dollar waiver in retired pay. This had the effect of increasing the sums paid to him (he got the disability pay plus his portion of the reduced retired pay) while decreasing the sums paid to the former spouse. The Nevada Supreme Court followed a "contracts" approach that has been applied in Virginia and Louisiana, in deciding that a military retiree "cannot escape his contractual obligation by voluntarily choosing to forfeit his retirement pay," and that the former spouse was therefore entitled to continue receiving what she would have received but for the waiver of retirement for disability pay. The Court stated its intent to interpret the parties’ ambiguous and contradictory settlement so as to yield "a fair and reasonable result, as opposed to a harsh and unfair result," noting that the husband appeared to have ample other assets than his military retired pay with which to satisfy his payment obligation, and that even if he did not, federal law was no bar to enforcement of his agreement to use his disability payments to satisfy his obligation. Of the three grounds, "consent" is often easiest to establish. In most places, making a general appearance as a plaintiff or defendant, or asking for relief in the course of a divorce action, usually constitutes "consent" to trial of the entire action.1 Potter v. Potter, 19 P.3d 1246, 121 Nev. Adv. Rep. 60 (September 22, 2005)The parties were married in 1994 and had one child. Shortly after the child was born, the parties divorced. The mother was initially awarded primary custody. The parties later agreed to share joint physical custody. In 2003, the mother received an employment offer from a California hospital for a nurse position at a higher salary. The mother filed a move motion. In the motion, the mother indicated that she also wished to become a nurse anesthesiologist degree which could not be done in Las Vegas and that her employer would pay much of the expenses. The father contended that the mother could not file a relocation petition unless she first successfully moved for primary custody. The father further claimed that he should receive primary physical custody. The district court treated motion as a move motion and did not address the father’s request for custody. The district court conducted a Schwartz analysis and concluded that the mother should receive permission to move. The district court granted primary physical custody to the mother provided for significant contact and visitation between the father and the child. The Supreme Court reversed. The parties agreed that the relocation statute did not apply to joint physical custody arrangements. The parties disagreed as to what should happen when a parent wished to sever joint physical custody, seek primary physical custody, and relocate with the child out of state. The Court reviewed NRS 125C.200. The Court noted that the statute did not define custodial parent and the statute contained no reference to shared or joint custody in contrast to the prior version of the statute. The Court also reviewed the legislative history. The Court noted that the legislative history showed that the Legislature intended that the move statute only applied to primary physical custody situations. The Court held that a parent sharing joint physical custody is not eligible to petition to relocate with a minor child under NRS 125C.200. The Court further held that district courts must apply NRS 125.510(2) and the best interest of the child standard to such situations and when a parent with joint physical custody of a child wished to relocate outside of Nevada with the child, that parent must move for primary physical custody for the purposes of relocating. The Court additionally directed that a district court must consider the motion for primary custody under the best interest of the child standard established for joint custody situations in NRS 125.510 and Truax v. Truax, 110 Nev. 437, 874 P.2d 10 (1994). The moving party has the burden of establishing that it is in the child’s best interest to reside outside of the state with the moving parent as the primary physical custodian. B> IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that if Member dies prior to retirement, and a refund of the contribution account is payable, Alternate Payee shall be paid a portion thereof, in accordance with the above formula, to the degree allowed by law. B> In military cases, it is absolutely required for attorneys in the era after Mansell to anticipate the possibility of post-divorce recharacterizations of the retirement benefits that have been divided, specifically including the possibility that the retiree might waive some or all of the retirement benefits in favor of VA disability benefits. Potentially devastating effects to the former spouse can be avoided by relatively simple expressions of intent, reservations of jurisdiction to award alimony or otherwise compensate the spouse, and expressions creating constructive trusts. The disconnect, and this discussion, is fully applicable to the military and Civil Service context, as well as in private retirements, because practitioners now are required to deal not only with the standard defined benefit plan, but also with the Thrift Savings Plan (a defined contribution plan). The cases continue to appear, although some states with published authority on the subject are not publishing the follow-up cases, apparently because they are not seen as particularly precedential.3 The most time consuming part of a Hague Petition is educating the court about the Convention, with an emphasis on the need for prompt judicial action. An important fact in determining choice of forum, therefore, may well be the familiarity of the various potential courts with prior Hague cases. To assist in educating a court new to the issues, counsel can request the U.S. Central Authority in the Department of State to send the court its form letter on the background, purpose and requirements of the Convention. Any such argument is improper. The relocation of any party after filing of a motion to modify child support is entirely irrelevant to the jurisdiction of the court. No such argument should ever be made, or entertained. Apparently, the pay centers threw out paperwork related to former spouse collections whenever the spousal share was completely eliminated, so those former spouses whose payments dropped to zero (because the disability award consumed the entire disposable retired pay) are required to re-apply for payment of benefits.2 Where the spousal share was reduced but not eliminated, and the member is receiving CRDP, the former spouse should see automatic, incremental restoral of the payment stream ordered in the documents previously submitted to DFAS, as the retired pay is slowly restored. Curiously, the dissent contains a glaring error - the statement in its introductory paragraph that the return of the child to Chile was necessarily an order turning the child over to the father. Since a Hague return only determines the place where custody is determined, and not how custody is to be resolved there, that error is curious. PART TWO - MATTERS RELATING TO CHILD SUPPORT POLICY AND CALCULATIONS III. The District Court’s Determination of Joint Physical Custody Resulting in an Unequal Timeshare Should Have a Bearing on Its Award of Child Support, in Appropriate Circumstances and this Court Should Revisit the Rivero Formula 2) If the court or administrative law judge determines actual parenting time exercised by a parent is different than what is provided in a written parenting plan or court order, the percentage of parenting time may be calculated using the actual parenting time exercised by the parent. The Supreme Court affirmed. The Court held and stated "[w]hile we believe that deliberate avoidance may be inferred from the record in this case, we are mindful that NRS 125B.080(8) requires an additional finding that a parent’s willful underemployment be ´for the purpose of avoiding an obligation for support of a child. . . .’ We now hold that, henceforth, where evidence of willful under-employment preponderates, a presumption will arise that such underemployment is for the purpose of avoiding support. Once this presumption arises, the burden of proving willful underemployment for reasons other than avoidance of a support obligation will shift to the supporting parent." Id. at 498. The type of physical custody arrangement is particularly important in three situations. First, it determines the standard for modifying physical custody. Second, it requires a specific procedure if a parent wants to move out of state with the child. Potter v. Potter, 121 Nev. 613, 618, 119 P.3d 1246, 1249 (2005). Third, the type of physical custody arrangement affects the child support award. Barbagallo, 105 Nev. at 549, 779 P.2d at 534. Because the physical custody arrangement is crucial in making these determinations, the district courts need clear custody definitions in order to evaluate the true nature of parties' agreements. Absent direction from the Legislature, we define joint physical custody and primary physical custody in light of existing Nevada law. The court therefore found that the child support called for in the divorce decree could be converted into a QDRO nunc pro tunc after the death of the participant, finding that there is no requirement in ERISA that a QDRO must be finalized before the benefits become payable. The QDRO provisions of ERISA do not suggest that an alternate payee has no interest in plan benefits before a QDRO is obtained - rather, they merely prevent enforcement of that "already-existing interest" until the QDRO is issued and served on the plan.1 The Wright formula also remains unchanged by the new definition of joint physical custody. When the parties have joint physical custody, as defined above, the Wright formula applies, subject to adjustments pursuant to the statutory factors in NRS 125B.080(9). Under the new definition of joint physical custody, there could be a slight disparity in the timeshare. The biggest disparity would be a case in which one party has physical custody of the child 60 percent of the time and the other has physical custody of the child 40 percent of the time. Still, maintaining the lifestyle of the child between the parties' households is the goal ofthe Wright formula, and the financial circumstances of the parties remain the most important factors under NRS 125B.080(9). Wright, 114 Nev. at 1368, 970 P.2d at 1072; Wesley v. Foster, 119 Nev. 110, 113,65 P.3d 251,253 (2003); Barbagallo, 105 Nev. at 551,779 P.2d at 536. Thus, in a joint physical custody situation, if a party seeks a reduction in child support based on the amount of time spent with the child, the party must prove that payment of the full statutory amount of child support is unfair or unjust, given that party's substantial contributions to the child's support. Barbagallo, 105 Nev. at 552,779 P.2d at 536. It should be noted that the amount of the survivorship interest is variable, and provides planning opportunities for counsel. The maximum SBP is selected if the entire retired pay is selected as the "base amount." The smaller the base amount selected, the smaller the survivor annuity - and the smaller the lifetime premium paid to supply it. Whatever the base amount selected, cost of living adjustments increase a base amount so as to keep it proportionally the same as the amount initially selected. Further, the Court clarified in Fondi that the burden is on the employee spouse to prove that post-divorce extraordinary efforts were made in order to change the mathematical analysis, instead of the burden being on the non-employee spouse to show that no such efforts were made. The Court distinguished the legal division of the benefits, which occurs at divorce, from actual collection of benefits by the spouse, which is to take place at the employee’s eligibility for retirement. The Department of Defense Office of the Actuary publishes "lump sum equivalency" charts for military retirements, using military-specific mortality tables, and including a muchignored disclaimer that its figures "should not be used for property settlements.?" The figures are updated annually, and can be downloaded from the DFAS website, www.dod.mil/dfas. We’ve noted some disturbing trends relating to paralegals in Nevada, which are worthy of greater attention by lawyers generally, and the Bar disciplinary office in particular. The attorney for the former spouse should try to provide for the court’s continuing jurisdiction to enforce its award by means of post-divorce order.2 Virtually all of the things that could happen after divorce to change the expectations of the parties as to payments will work to the disadvantage of the former spouse, so it is that party who must make it as simple as possible to get back into court to correct later problems. Nevada switched from being an "equitable distribution" to an "equal distribution" State in 1993. Prior to that year, NRS 125.150 required the court to make such disposition of:

You can find A Brief Aside Regarding Disability and the TSP The Conundrum of Disposable Retired Pay Public Employees Retirement System PERS Benefits Section III Subsection B Major Military Divorce Cases Las Vegas family law divorce specialist Introduction to Nevada child support law Child Custody Initial Jurisdiction Cases and Trends The Marren and Page Case List Engebretson v Engebretson Hybarger v Hybarger Military Retired Pay and the Dangers of REDUX part two of two Fernandez and Child Support Partition Actions Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Death Benefits in the Military Retirement System A Brief Aside Regarding Disability and the TSP available at lvfamilylawyer.com by clicking above.

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