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A Trip Down Memory Lane
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Interest applied to judgments in Nevada casesP> The FLS previously proposed 8 and reasserts here that joint physical custody should not be considered by the trial court, unless the child resides with or is under the direct care and unsupervision of a parent for at least 40% of the time. Further, the trial court should not consider an anomaly occurring in one specific year - for example, leap year, illness, emergency or other exigency transiently altering the timeshare; the purpose of the 40% threshold is to define a base and ensure that each parent is routinely the custodian of a child for a meaningful and significant period of time. I> In Argentena v. Jolley Urga, 125 Nev. ___, ___ P.3d ___ (Adv. Opn. No. 40, Sept. 24, 2009), the Nevada Supreme Court effectively made it more difficult for attorneys to collect on either retaining or charging liens. The primary holding of the case was that in the absence of an enforceable charging lien, a client’s request to liquidate a retaining lien, or a client’s consent to the district court’s adjudication of a retaining lien, the district court lacks jurisdiction to adjudicate an attorney/client dispute as to fees owed. After a 37-year marriage, the parties entered into a property settlement agreement which required the parties, inter alia, to equalize their Social Security payments upon retirement. The husband refused to apply for benefits upon reaching age 65 and wife asked the district court to enforce the agreement of the parties. The district court agreed with the wife and granted her requested relief and attorney’s fees. The Supreme Court reversed noting that pursuant to Federal law Social Security benefits were not assignable and that based on the Supremacy Clause of the United States Constitution the district court could not require husband to share any portion of his Social Security benefits with the wife even though he had voluntarily agreed to do so. In California, the spousal share ceases to accumulate upon "final separation" So the math would be 10 (years of marriage) ÷ 20 (years of service) x .5 (spousal share) x $1,000 (pension payment) = $250. The Supreme Court affirmed. The Court noted that the nature and purpose of an award oflump sum alimony remains the same, whether it was payable immediately in full or periodically in installments. The Court further noted that a variety of reasons may lead a court to award lump sum alimony, but the result in every case is to fully and finally fix the rights and obligations of the parties. The Court held that an award of lump sum alimony whether payable immediately or in installments, is not subject to termination for death of either party or remarriage of the recipient spouse. The proposed rule would limit contingency fees to those aspects of divorce cases supported by the historic policy bases, and in all other cases give informed clients the same ability to choose a contingent fee arrangement as client in other civil matters. Finally, the bounds advocate that: "[j]urisdictions that completely ban all contingent fees should be urged to adopt a rule similar to this Goal." The point for counsel is that, while the rule may be "all property acquired by the husband and wife during marriage is presumed to be community property,"12 there are apparently a number of situations where the presumption - and the consequent burden of proof - will be the opposite. P> The FLS previously proposed 8 and reasserts here that joint physical custody should not be considered by the trial court, unless the child resides with or is under the direct care and unsupervision of a parent for at least 40% of the time. Further, the trial court should not consider an anomaly occurring in one specific year - for example, leap year, illness, emergency or other exigency transiently altering the timeshare; the purpose of the 40% threshold is to define a base and ensure that each parent is routinely the custodian of a child for a meaningful and significant period of time. bsp; A. Community Property Defined as all property acquired during marriage, except for gifts, inheritances, and P.I. damages for pain & suffering. The parties divorced March 1992. The mother received primary physical custody. In March 1993, the father filed a motion to modify custody. The same day, an ex parte restraining order gave him custody of the child pending a hearing. An initial hearing in March left the restraining order unchanged. In June 1993, the district court gave the father temporary custody. After a seven day hearing which stretching from September to October 1993, the district court awarded the father permanent custody. The district court set forth the Murphy standard in its final order, but did not specify the circumstances it found altered. bsp; 2. Permanent alimony: "X pays to Y $Z per month until payor or recipient dies, or recipient remarries, whichever shall first occur." Court can make alimony payable after death, or after remarriage, by specific order. P> Under the pre-1993 case law, courts were provided a great range of discretion in the matter of property distribution, but the case law was still muddled by apparently conflicting directions. One year and one day after the divorce, the third former spouse’s rights would be secure. The first former spouse could go back to court at any time (prior to the member’s death) to get a valid order for SBP beneficiary status, and then serve the pay center. The second annulment,"14 whereas the former spouse must make the request "within one year of the date of the court order or filing involved."15 The reviewing court affirmed the order requiring reimbursement, rejecting the retiree’s argument that ordering reimbursement violated Mansell, and stating that it merely enforced the parties’ property settlement agreement, rather than dividing disability benefits. Since the case involved a post-Mansell divorce, the decree had included an indemnification provision1 because of the "higher standard of clarity" some courts have required of decrees after Mansell to be certain of the divorce court’s intent. However, the court noted that such enforcement of the intent at the time of the dissolution was appropriate whether or not the original order contained a specific indemnification provision.2 Finally, the appellate court noted that "[t]he equity of the result reached . . . is undeniable."3 SUP> The Braddock rule is best perceived as akin to an affirmative defense, in that if the matter is not raised by the party seeking an advantage under the law of some other State where the asset accrued, Nevada’s community property law will apply by default.5 B> As a matter of law, it is possible to value the spousal share in at least two ways. The majority of States applying the time rule formula seem to view the "community" years of effort qualitatively rather than quantitatively, reasoning that the early and later years of total service are equally necessary to the retirement benefits ultimately received.3 In other words, the focus has shifted from looking for "indemnification" or other language that such recharacterization is prohibited, to looking for some language indicating that recharacterization is permitted. Courts almost always require reimbursement of the former spouse unless the divorce decree permitted the member to convert the benefits post-divorce.10 Sometimes, the issue is reached by way of contempt actions taken against the recharacterizing spouse.11 There is only one known exception.12 Next, the Court confirmed the district court’s valuation of the spousal share, but held that the lower court’s explanation of the gap between $450.00 to $577.56 (as reflective of "the taxable consequences" of the payments) was inadequate. The Court found the reduction "arbitrary" and held that it violated the equal distribution presumption of NRS 125.150(1)(b). You can find A Trip Down Memory Lane Death Benefits in the Military Retirement System The Marren and Page Case List Occhiuto v Occhiuto The Marren and Page Case List In re Swall The Marren and Page Case List Langevin v York Abbott and International Kidnap Hague Only the Question of Return Not Custody is to be Determined Divison of Military Retirement Benefits In Divorce Section IV Subsection B Las Vegas lawyer Marshall Willick Nevada prenuptial agreement attorney Nevada child custody expert lawyer Exhibits on Rivero Exhibit One A Trip Down Memory Lane available at lvfamilylawyer.com by clicking above. 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