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CONCLUSION The Basics of Jurisdiction A Remedial Course
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Focusing on the existence or non existence of jurisdiction when initiating or responding to a new matter Saving time and money65279;If a person happens to be a recipient of both DIC payments and payments under the Survivor's Benefit Plan ("SBP") explained below, all DIC payments are subtracted from the SBP payments. However, certain supplements to the DIC benefits, for support of a dependent child or because of certain disabilities, do not get offset against SBP. DIC payments are not taxed, and are therefore more valuable than the (taxable) SBP payments that would otherwise go the survivor. At the least, NRS 125.155 as a whole directly conflicts with NRS 123.225 and NRS 123.330, since it provides to spouses of participants in the Nevada PERS system lesser protection of, and less control over, their community property rights than spouses of all participants in all other private and public retirement systems on which a divorce court might rule. This would appear to violate the "general and uniform operation" requirement of Article 4, section 21, of the Nevada Constitution. NRS 125.155, enacted in 1995, establishes a set of special rules applicable only to PERS retirement benefits in divorce. The legislation in its original form was heard by the Assembly Judiciary Committee on March 31, 1995, backed by Mr. Gary Wolff, purportedly on behalf of the Nevada Highway Patrol Association, accompanied by the association’s lawyer, and Mr. Robert Fowler, representing the Law Enforcement Council, Service Employees International Union. And considering as part of the business only the "enterprise good will" that is actually transferable to a hypothetical buyer goes some distance toward valuing the business as a business without blurring the lines between business valuation and an alimony analysis. This would largely eliminate the "double dip" angst occasionally seen - as in the debate at the recent Advanced Family Law Seminar on whether a goodwill component to a business valuation necessarily created a double dip when alimony was in issue. The majority held that the apparent congressional intent was to make military retirement benefits a "personal entitlement" and thus the sole property of individual service members, so the benefits could not be considered as community property in a California divorce. The Court invited Congress to change the statutory scheme if divisibility of retired pay was desired.1 vs. Case No. 48944 The court may consider the amount of time that the parent spends with the child. If the child spends 35% or more of the child's time with the parent not having primary residency, the court shall determine whether an adjustment in child support is appropriate. In calculating the parenting time adjustment, the child's time at school or in day care shall not be considered. To assist the court, the following table may be used to calculate the amount os parenting time adjustment. The adjustment percentage should be averaged if there is more than one child and if the percentages are not the same for each child. The Basic Child Support Obligation (line 0.9) is then multipied by the appropriate Parenting Time Adjustment Percentage using the following table. The Parenting Time Adjustment Percentage and the amount is entered on Line E.2. If, during any proceeding brought under this chapter, either before or after the entry of a final order concerning the custody of a minor child, it appears to the court that any child of either party has been, or is likely to be, taken or removed out of this state or concealed within this state, the court shall forthwith order such child to be produced before it and make such disposition of the child’s custody as appears most advantageous to and in the best interest of the child and most likely to secure to him the benefit of the final order or the modification or termination of the final order to be made in his behalf. Nevada¡¯s cases stating that retirement benefits are divisible irrespective of whether or not the retirement benefits are vested (i.e., the employee has met the necessary conditions under which the employer may not refuse to provide the benefits) or matured (i.e., presently payable) places Nevada law in the clear majority of states, and in line with the modern trend of authority. th that caveat, I believe that the calculator is working the way it should, whether it is desired that a party pay any, all, or some portion of the SBP premium. I encourage its use for making those calculations a little easier, and certainly request feedback if anyone spots an error, or wishes to suggest an improvement. 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. When the dispute between the former spouse and plan reached the Third Circuit, it found that there is no requirement in ERISA that a plan be notified of the spousal interest prior to the employee’s death, in order for the spouse to seek a qualified order. Agreeing with the Ninth Circuit’s holding in Tise, the court held that a QDRO is merely a mechanism for enforcement of an interest determined in the first instance by a state domestic relations court.1 Regardless of whether the plan received notice of that separate interest before or after the date the participant died, the former spouse was entitled to seek enforcement of a separate interest in a pension benefit that existed before the participant’s death. The USFSPA set up a federal mechanism for recognizing and enforcing state-court divisions of military retired pay, including definitions. One of these was of "disposable retired pay" (the sum that the military pay center could divide between spouses), which was defined as "the total monthly retired pay" minus certain sums, including sums deducted "as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38" or "equal to the amount of retired pay of the member under that chapter computed using the percentage of the member's disability on the date when the member was retired" for a member retired under chapter 61. As of 1983, it was possible for reservists to designate former spouses as their SBP recipients,3 and the 1986 amendments presumably gave courts the same power to deem beneficiary designations in Reservist cases as in any others. SBP benefits based on reserve-component service had a reduction similar to that for regular retirement SBP benefits after a beneficiary turns age sixty-two, which presumably is being phased out on the same schedule. 65279;If a person happens to be a recipient of both DIC payments and payments under the Survivor's Benefit Plan ("SBP") explained below, all DIC payments are subtracted from the SBP payments. However, certain supplements to the DIC benefits, for support of a dependent child or because of certain disabilities, do not get offset against SBP. DIC payments are not taxed, and are therefore more valuable than the (taxable) SBP payments that would otherwise go the survivor. UP> There are mechanisms for dealing with members who legitimately have custody of dependent children outside the United States, but fail or refuse to return the children to the U.S. pursuant to a court order.1 The various services have their own implementations of the directive, but the purpose and effect is to obtain compliance with court orders requiring the return to the United States of minor children who are the subject of court orders A spousal share may be rolled over to an IRA or other eligible plan, in which case no taxes are withheld. Otherwise, the spouse is taxed on the distribution, and 20% is withheld. The Supreme Court affirmed. The Court discussed NRS 159. The Court held that before a parental preference is applied, the court must first determine if a parent if "qualified and suitable." Id. at 1130. The Court went through the requirements of NRS 159.061. Qualification and suitability are based on the parent’s fitness for guardianship at the time of the hearing. If a parent is qualified and suitable, the parent prevails over non-parents for guardianship of the child. If, however, neither parent is or both parents are, the statute requires the court to move to the second step of determining who is most suitable. That presumed direct contribution by a non-custodian is part of the total support expected by the child support formula to be expended on a child. Thus, if the non-custodial parent’s direct contribution to child expenses exceeds or falls short of that presumed in NRS 125B.070 as a result of the amount of time the non-custodial parent spends with the child, the court has discretion to deviate downwards or upwards from the child support calculated under that statute, as provided in NRS 125B.080(9)(j). This process of calculating support pursuant to a formula with inherent presumptions, while allowing for deviations based on the particular circumstances of each case, furthers the original goals of fostering adequacy, consistency and predictability. The Court held that since NRS 125.150(1) empowered the district court to "make such disposition of the community property of the parties, as appears just and equitable," and the January decree was expressly interlocutory and reserved jurisdiction over the wife community interest in the retirement rights pending final adjudication of the parties' rights following the May proceeding. The Court then noted that an order or judgment which reserves a question for future consideration and determination is interlocutory and is not a final judgment. citing to Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950); Alper v. Posin, 77 Nev. 328, 363 P.2d 502 (1961) and Elsman v. Elsman, 54 Nev. 20, 2P.2d 139 (1931). It did not immediately appear in the opinion, but apparently the parties stipulated to separate trials. SPAN> If the Court is reluctant to adopt a specific percentage of time as the threshold to consideration of joint physical custody as a possible custody award, it is requested that the Court give clear guidance that if joint physical custody is to be considered an option in a less than equal time share, the time share must be close to equal. Without this clarification, the definition becomes meaningless, leaving the parties to argue over and the trial court to figure out what constitutes"significant periods of time." Further, in the years since Mansell, reviewing courts have gone from examination of the decree to see if there was a specific savings clause by which the spousal share could survivethe retiree’s recharacterization, to examining the underlying decree for a specific provision permitting the retiree to retroactively reduce the award to the former spouse. For example, in In re Marriage of McGhee,1 the court approved compensation to the former spouse by means of alimony, as set out in the agreement between the parties, when it was imposed by the dissolution court after the member halted the flow of military retirement benefits to former spouse after the McCarty decision. The court termed use of such "back-up" clauses to be making the property award "supportified." Similarly, in deciding In re Marriage of Sheldon,2 the court noted the "close relationship between the amount of a property division and the entitlement, if any, of a spouse to spousal support." In In re Marriage of Mastropaolo,3 the court "conditionally" reversed an alimony award "on condition" that the court’s affirmance of the retirement division became final. The parties were divorced in February 1977. A property settlement agreement was incorporated into the decree which distributed several parcels of real property and some personal property. As required, the husband executed several quit claim deeds to the wife. Several months after the entry of the decree, the parties reconciled, resumed cohabitation and held themselves out as husband and wife. They never remarried, but lived together until May 1979. In June 1979, the husband moved to modify the decree as it related to the division of the community property of the parties. The husband claimed there was an oral agreement that the wife would upon any subsequent separation, reconvey to him one-half of her real property. The request to modify was denied. P> Having been informed during the 2004 "public workshop" that the proposed Welfare calculation methodology was counterproductive and not in keeping with the obvious legislative intent of the statute, Welfare did what a bureaucracy does in such circumstances - tried to get the law changed to support what it wanted to do. Specifically, in 2005 Welfare cooked up AB 473, which would have altered the statutory penalty as follows: Under 10 U.S.C. § 1078a(g)(4), the "temporary" health benefits coverage becomes "unlimited" for former spouses who were enrolled in TRICARE at the time they divorced - if they meet certain criteria:5 In 2001, the Arizona Court of Appeals again dealt with the contract theory, federal law supremacy assertion, and claims of "involuntariness" that appeared in several of the cases discussed above, in Danielson v. Evans.1 Because the divorce at issue occurred after Mansell, the prevailing former spouse in Danielson was held to the "higher standard of clarity" in the underlying decree (discussed above) to protect her interests. B> There was a twenty month "gap" between the McCarty decision and the congressional enactment. The USFSPA was expressly made retroactive to the start of the gap period, but the language used left some room for interpretation.10 Some states, such as Washington, found the federal law sufficient to allow their courts to address those persons who had been divorced during the gap under common law and statutory procedures.11 In those states, motions could be brought to divide the retirement benefits if they had been omitted, or to divide the benefits if they had been awarded solely to the member while McCarty was the law of the land. All of these withdrawals presume that the TSP Board had not previously been served with a valid court order awarding a portion of a TSP account to a current or former spouse or one that requires payment for enforcement of child support or alimony obligations. If such an order was served on the TSP Board, it will comply with the court order before permitting purchase of an annuity or other withdrawal. A former spouse’s right to a portion of retired pay as property terminates upon the death of the member or the former spouse; the court order can also provide for an earlier termination.8 Any right to receive payments under the USFSPA is non-transferable; the former spouse may not sell, assign, B> In its First Brief, the FLS proposed definitions for all types of legal and physical custody.12 These definitions were intended to work together to create a continuum where one type of custody ends and another type of custody begins. 13 Without clear definitions for all forms of custody, thereare no legal standards by which to measure when a time share moves from sole physical custody to joint physical custody, or from joint physical custody to primary physical custody. Over the years, Congress has made numerous changes in the method of COLA computations. This has resulted in persons with identical ranks and lengths of service being paid different sums of retired pay depending upon their dates of retirement. The confusion stemmed from a series of Nevada Supreme Court opinions which seemingly advocated "equal distribution."1 At the same time, however, the Court had issued decisions rebuffing appeals from orders dividing property unequally.2 You can find CONCLUSION The Basics of Jurisdiction A Remedial Course The Marren and Page Case List In re Fosters Estate Rivero v Rivero Opinion IV B Subsection Two Public Employees Retirement System PERS Benefits Section I Subsection A Late Retirement by Members the Smaller Slice of the Larger Pie Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Kennedy v Plan Administrator for Dupont Savings and Investment Plan Section II Subsection C Major Cases Divorcing the Military and Serving the Civil Service Section II Subsection Rivero v Rivero Opinion Subsection One Divison of Military Retirement Benefits In Divorce Section X Subsection D The Marren and Page Case List Engebretson v Engebretson The Marren and Page Case List Pelletier v Pelletier Divison of Military Retirement Benefits In Divorce Section IV Subsection C Rivero v Rivero Opinion Pickerings Discussion Las Vegas CSRS law expert Divison of Military Retirement Benefits In Divorce Section V Subsection C The Marren and Page Case List Milender v Marcum Cook v Cook and Guerin v Gu The Marren and Page Case List In re Wilsons Estate Ormachea v Ormachea Cord In Search of a Coherent Theoretical Model for Alimony Division of Just Community Property or Other Property Considered Rivero v Rivero Opinion Section VI CONCLUSION The Basics of Jurisdiction A Remedial Course available at lvfamilylawyer.com by clicking above. Site Map Divorcing the Military and Serving the Civil Service Section II Subsection Rivero State Bar Amicus Brief Part Two 10 USc 1408 Uniformed Services Former Spouses Protection Act Continued Rivero v Rivero Opinion Section III Rivero State Bar Amicus Brief Approches Relating to Unequal Joint Custody Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Domestic Partnerships in Nevada Reciprocal Links: CONCLUSION The Basics of Jurisdiction A Remedial Course CONCLUSION The Basics of Jurisdiction A Remedial Course CONCLUSION The Basics of Jurisdiction A Remedial Course CONCLUSION The Basics of Jurisdiction A Remedial Course |