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Actual Calculation Diffrences
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Calculation diffrences NOMADS Marshal Law and the Private BarThe need to make some kind of adjustment for shared custody/extended visitation is acute. Families are establishing joint custody arrangements at increasingly higher rates. The 1995 Census Bureau report for the year 1991 showed that 73% of non-custodial mothers and 58% of non-custodial fathers had extensive visitation privileges or joint custody. United States Department of Health and Human Services, Final Report: The Court noted that the relation of husband and wife is one involving the highest trust and confidence. Under both common law and equitable standards, in any transaction, whereby one spouse seeks to obtain the other spouse’s property without adequate compensation, no duress, coercion, undue influence, imposition or overreaching will be tolerated. If no trust was found, and no consideration was paid for the income paid to the wife and reassigned to the husband, the burden of proof would shift to the husband, and would require him to prove affirmatively that the reassignment was executed without undue influence, and that it was entered into freely and voluntarily, also that it was understood by the wife and was fair and equitable to her. A presumption of invalidity arises, which can only be overcome, if at all, by clear evidence of good faith, of full knowledge, and of independent consent and action. All other jurisdictions have lined up with the national consensus. In 2000, New Mexico verified its 1990 holding in Toupal, supra, in Scheidel,4 rejecting a "federal law prohibits enforcement" argument and noting that there is no analytical difference between a member making a new disability application post-divorce, on the one hand, and increasing an award that existed upon divorce, on the other. That court, like many others, reinvented the core concept of Gillmore: "one spouse should not be permitted to benefit economically in the division of property from a factor or contingency that could reduce the other spouse’s share, if that factor or contingency is within the first party’s complete control."5 It is possible for a former spouse to contest the discharge in bankruptcy of an obligation to remit to the former spouse a portion of retired pay, by attacking it as a "fraud while acting in a fiduciary capacity" or a tortious "debt for willful and malicious injury." See 11 U.S.C. § 523(a)(4), (6). Litigation in bankruptcy court may cause that court to carry into effect the divorce court’s orders. See In re Thomas, 47 Bankr. Rep. 27 (B. Ct., S.D. Cal. 1984); In re Wood, 96 Bankr. Rep. 993 (9th Cir., B.A.P., 1988) (non-military case). At least one court has held a designation of the former spouse as the Survivor’s Benefit Plan beneficiary was a non-dischargeable transfer and not a "debt" subject to discharge in bankruptcy. See In re Anderson, 1988 WL 122983 (Bankr. N.D. Iowa 1988). The third scenario would have the former spouse pay the entire SBP premium. Using the same hypothetical facts, reducing the spousal share from 25% to 19.7861% would free the member from paying any portion of the premium, directly or indirectly.4 The former spouse is still over-secured, as in the prior scenario, and the parties are still left in an unequal position regarding risks and burdens, since the member still has an entirely free survivorship interest on the spouse’s life, and she is paying the entire premium for the survivorship interest on the member’s life. Milton, age 70, was very wealthy when he met 40-year old Abigail in 1992. At his request, she stopped working to allow joint travel. They wed in 1993 - with a premarital agreement in place. Bliss was short-lived, and by the end of 1994, Milton filed for divorce. But after 19 months of separation, the divorce proceedings were abandoned and the parties reconciled, each making "certain [unspecified] promises" memorialized in a reconciliation agreement. Anecdotal accounts, however, indicate that some trial courts continue to be misled into ruling to the contrary, based upon an overly-expansive reading of Mansell and misplaced concerns about violating the Supremacy Clause, or simply by seeing the word "disability" and reacting without any sort of adequate inquiry into what the law is, or why. A divorce decree calling for future reduction or termination of alimony may seem harsh to the obligee, whose needs presumably will not decrease. But property division schemes everywhere increasingly resemble the community property scheme of dividing, usually equally, that which was created, during the marriage, and most states (including Nevada) have eliminated "fault" analyses in favor of straight economic criteria for if and how much '" alimony should be awarded. The following paragraph serves two purposes: The first sentence allows private insurance to create a substitute for a pre-retirement survivor annuity (lacking in the military system); the second is to allow waiver of the SBP by the Spouse and its replacement by a private insurance policy where financially reasonable; the Member is required to cooperate. Note that, as written, the paragraph does not indicate who is to pay for such replacement coverage; presumably, counsel will have this term mirror the responsibility for the SBP premiums; if no arrangement is made, it will fall to the spouse to get it, or not. 7)(A) If a former spouse receiving payments under this subsection with respect to a member or former member referred to in paragraph (2)(A) marries again after such payments begin, the eligibility of the former spouse to receive further payments under this subsection shall terminate on the date of such marriage. Practitioners therefore must be careful in all reservist cases; they should be wary in a case involving reserve component service of any calculations that presuppose the typical "years of marriage divided by years of service" formula. Since point accumulation might have been intermittent, significantly different spousal percentages could be obtained by the two methods of figuring. Note that the amended (prior) regulations in 32 C.F.R. § 63.6 specifically directed dividing reservist’s retirements by points accrued during marriage, rather than duty time during marriage. That directive appears to have remained in all subsequent military guidelines, including the 2009 regulations.1 bsp; b. presumptive maximum in a series of bracketed ranges, so that parents making up to a little more than $50,000 per year pay a maximum of about $600, adjusted with inflation, and stepping up with income, so a parent making about $180,000 or more pays an inflation-adjusted amount of about $1,000 per month. The precise sums change every year. PAN style="FONT-FAMILY: Times New Roman; FONT-SIZE: 14pt"> The Court engaged in a lengthy discussion of joint tenancy, community property, and the Nevada Constitution. The Court noted that a choice of the tenancy had to be made, and it may assume that it will sometimes be made unadvisedly or that later developments may indicate that the choice, seemingly advantageous at the time, has resulted in loss or hardship. The Court cited and discussed a large number of cases from which it concluded that property acquired in the name of either spouse, or taken by both spouses as tenants in common or as joint tenants may be, by agreement between them, transmuted into community property. The Court noted that no case was provided to it, and they found none through their research in which a transmutation from joint tenancy to community was held to have taken place without proof either that the property was acquired with the intent that it be held in a tenancy different from that indicated from the form of the deed, or that, although acquired without such initial intent, it was later transmuted by agreement of the parties. The Court noted that it was unnecessary for them to determine, and it did not determine, that under no circumstances may the intent of the parties be established through circumstantial evidence and that its affirmance only went to the extent of holding that the use of community funds, earnings and efforts to build up and materially increase the value of the joint tenancy property, without further proof of original intent or subsequent agreement to hold the property as community was insufficient to prove a transmutation from joint tenancy. i) First, the variable multiplier is determined by multiplying a standard per diem of .0109589 [2/182.5] by the ARP's parenting time determined pursuant to paragraph (7)(b) above. For example, the 94 days of parenting time calculated in the example from paragraph (7)(b)4(i) is multiplied by .0109589, resulting in a variable multiplier of 1.0301366 [94 x .0109589]. The need to make some kind of adjustment for shared custody/extended visitation is acute. Families are establishing joint custody arrangements at increasingly higher rates. The 1995 Census Bureau report for the year 1991 showed that 73% of non-custodial mothers and 58% of non-custodial fathers had extensive visitation privileges or joint custody. United States Department of Health and Human Services, Final Report: P> The parties married while attending college. They moved to California where the wife commenced teaching and the husband continued with his schooling and was not gainfully employed. The husband obtained both a private pilot’s license and a flight instructor’s license at the expense of the community. The parties moved several more times, with the husband serving as a Navy pilot on active duty and then with the Reserves, becoming a charter pilot and obtaining two degrees on the G.I. Bill. The wife taught school, and obtained a Master’s degree. The parties divorced in 1992 after a 27 year marriage, at which time the husband was a 48 year old commercial airline pilot and the life was a 47 year old reading specialist with the Clark County School District. The wife received a two year rehabilitative alimony award, and both parties appealed. These limitations override state long-arm rules, and must be satisfied in addition to any state law jurisdictional requirements. Cases lacking such jurisdiction can go forward, but they will not result in enforceable orders as to the retirement benefits. The statute effectively creates an additional jurisdictional requirement, which for lack of a better title can be called "federal jurisdiction." The scant federal authority has led to the same result as the state cases, but by way of different rationales, primarily involving deferral to state courts in domestic relations cases, or squarely addressing and refuting a wide assortment of federal offenses allegedly committed by spouses in state divorce courts. The husband owned stock in the company in question with his brothers prior to his marriage. An agreement between the brothers provided terms upon which the family corporation was to acquire the shares of stock held by one of the brothers in the event of his death and thereby maintain continuity of management of the corporation. The agreement stated that the shares were the husband’s separate property. The district court found that although the husband contributed in part to the corporate growth, his activity in the business was substantially reduced because of other business involvement and that during the subsequent years, most of the increase in the stock’s value was attributed to other sources. Because of the salary the husband received and expense account, the district court concluded that the community was fully compensated for the husband’s community labor through his annual salary and related benefits. The potential liability is the value of the benefit lost to the shortchanged spouse. An increased degree of attention to ferreting out possible concealed assets, including retirement benefits, is not only advisable, but necessary. Presumably, other States could have still different rules for measuring when the community or coverture period started or ended. Such variations could lead to significantly different sums collected by the respective spouses over the course of a lifetime. Whether or not equality of treatment by the divorce courts is considered a fundamental right, there is little doubt that NRS 125.155 is constitutionally infirm. The parties married while the wife was pregnant. The wife claimed that she told the husband the father was another man; the husband admitted that wife never told him that he was the father of the child. The parties cohabited intermittently until separating when the child was three. The wife relocated to Iowa, where she raised the child alone, was on welfare, and attended school. The parties discussed reconciliation in 1990, but the attempt, in Las Vegas, lasted only 30 days. The wife filed for divorce. The Supreme Court reversed. The Court noted that the litigation was between the father and the mother and that the maternal grandparents were not parties to it, have never enjoyed legal custody of their grandchildren, and have never asserted a claim to such custody. The grandparents court as witnesses and apparently were amenable to the responsibilities of custody should the court decide such a course to be the desirable one. The Court further noted that it was reluctant to approve an award of custody to nonparties. The Court then looked at the legislative history. The Court concluded that the custody statute and the guardianship statute, when read together, created a rebuttable presumption that a fit parent is to be preferred over nonparents with respect to custody. The Court further concluded that the best interest of the child is usually served by awarding his custody to a fit parent citing to Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969), where we ruled that as between fit parents, a child of tender years should be awarded to the mother. Here, there was no finding that the father was unfit to have custody. The Court concluded that the father was entitled to the custody of his daughters. As human relationships become strained, our relationship with our animals only grow stronger, which is yet another reason this is becoming a heated debate in divorce cases. Perhaps we can learn and grow from our pets, as their innocence, survival instincts, and unconditional love are all traits that we as humans could improve. In the words of Sigmund Freud, "dogs love their friends and bite their enemies, quite unlike people, who are incapable of pure love and always have to mix love and hate." The Supreme Court reversed. In reversing, the Court noted that unless otherwise provided by law, decree, or agreement, all property acquired after marriage is considered to be community property under NRS 123.220 and that presumption can only be overcome by clear and convincing evidence citing to Todkill v. Todkill, 88 Nev. 231, 495 P.2d 629 (1972) and Kelly v. Kelly, 86 Nev. 301, 468 P.2d 359 (1970). The Court further noted that the opinion of either spouse as to whether property is separate or community is of no weight citing to In Re Wilson’s Estate, 56 Nev. 353, 53 P.2d 339 (1936) and Barrett v. Franke, 46 Nev. 170, 208 P. 435 (1922). Vacation pay is accrued at the rate of 1¼ days per month of continuous service, and is cumulative from year to year, with a maximum of 30 days accrual per year.21 All leave beyond 30 days must be used during the next year, or it is forfeited. Upon termination of employment, state employees are entitled to lump sum payment of their accumulated annual leave.22 Further, the value of that vacation pay is computed at the rate of pay that the employee had at termination, not the rate of pay at the time the leave was accrued.23 The USFSPA is both jurisdictional and procedural; it both permits the state courts to distribute military retirement to former spouses, and provides a method for enforcement of these orders through the military pay center. The USFSPA itself does not give former spouses an automatic entitlement to any portion of members’ pay. Only state laws can provide for division of military retirement pay in a divorce, or provide that alimony or child support are to be paid from military retired pay. Rights granted by state law are limited by federal law, even if state law does not so provide, and even if the courts of the states do not see any such limitations.7 B> While the details (and math) can be daunting, the above discussion illustrates how counsel armed with a comprehensive understanding of the workings of a retirement plan can alter the financial impacts of survivorship benefits when the equities of the situation call for it. Some similar sort of adjustment to the "default" is possible in virtually every retirement system, but the practitioner must be fully versed on both how the system will operate without tinkering, and what adjustments are possible. The Supreme Court found an abuse of the lower court’s discretion in deciding whether to grant or deny a motion under NRCP 60(b), and reversed the lower court’s denial. The case was remanded, noting that the dissolution of the marriage was not affected, but the parties were only to "litigate the division of their property" upon remand. Id. at 184-85. Several commentators and researchers have reviewed the cases nationally, reaching the conclusion that post-divorce recharacterization of retired pay as disability benefits just is not permitted without compensation to the former spouse. You can find Actual Calculation Diffrences Ely prenuptial agreement attorney Nevada ERISA lawyer Rivero v Rivero Opinion Section II A Las Vegas Marshall Willick Rivero State Bar Amicus Brief Part Two Subsection III A The Marren and Page Case List Hay v Hay Western State Construction Inc v Mi Las Vegas PERS expert lawyer Exhibits on Rivero Exhibit Three Section Two Elko child support expert Actual Calculation Diffrences available at lvfamilylawyer.com by clicking above. Site Map Division of Military Retirement Benefits in Divorce Section I An Introduction to Pensions in Nevada Divorce Law Conclusion Las Vegas CSRS expert lawyer Rivero State Bar Amicus Brief Part Two Use and Abuse of Court Minutes Exhibits on Rivero Exhibit Three Section Two Analysis of Hypothetical Fact Pattern |