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Child Support exceeding the statutory presumed maximum
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CHILD SUPPORT exceeding the statutory presumed maximum Herz v Gabler Herz Chambers ex rel Cochran v Sanderson Love v Love and Anastassatos v AnastassatosA division of the benefit "in-kind," also called an "if, as, and when" division, may be the preferable form of dividing retirement benefits. It has the advantages of fully and fairly dividing the actual benefit received without speculation as to actuarial valuation, inflation, life expectancies, etc. Preferred or not, such a division may be necessary if the "present value" of the retirement is so large that there is no other asset that could be traded for the spousal share. The Court first concluded that Norris was inapplicable to the case because, in Norris, the motion to modify was filed after the parties’ child turned 18. Because NRS 125.510 was amended after Norris to allow for child support to continue until a child either completed high school or turned 19, the district court erred by ruling that it lacked jurisdiction to modify the support obligation. The Court also distinguished the case from Day v. Day, 82 Nev. 317, 417 P.2d 914 (1966) concerning retroactive modification of a child support obligation. The Court held that it was not retroactive modification of child support to go back to the date of the filing of the motion for modification. The Court stated that " . . . the court may make the modification effective either as of the time of filing the petition or as of the date of the decree of modification, or as a time in between, but it may not modify the decree retroactively." Id. at 532. For example, suppose parents divorced while a child was an infant, and had joint custody, but the military parent was subsequently deployed for a year or two, and then returned. A court required to indulge the fiction that the absence of that parent "may not be used against the servicemember" would be required to restore joint custody of an infant to a parent who would be a complete stranger to the child, irrespective of the child’s best interest. A division of the benefit "in-kind," also called an "if, as, and when" division, may be the preferable form of dividing retirement benefits. It has the advantages of fully and fairly dividing the actual benefit received without speculation as to actuarial valuation, inflation, life expectancies, etc. Preferred or not, such a division may be necessary if the "present value" of the retirement is so large that there is no other asset that could be traded for the spousal share. In a nine year overlap case, the former spouse has a putative 22.5% interest (i.e., 9 ÷ 20 x ½). Some courts, seeking to make their awards enforceable, will characterize the property award as alimony upon request. Where the court cannot or will not do so, the attorney for the spouse has something of a dilemma, which is sometimes resolved by negotiations involving trade of a few percentage points of value for a stipulated award of irrevocable alimony. The Court overturned the presumption that, a parent who commits adultery is unfit as a matter of law. The facts were that mother was awarded primary custody even though lived with a man she later married. The Court overruled Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961). UP> This view of the time rule essentially provides to the former spouse an ever "smaller slice of a larger pie" by getting a shrinking percentage of a retirement that is increasing in size based upon post-divorce increases in the wage-earner¡¯s salary and years in service. P> The short answer is "yes, on the surface," because NRS 125.155 permits (but does not require) payment upon eligibility, and the phrasing of NRS 286.6703(3)(e) appears to prohibit any payments to a spouse until the employee actually retires. 1. Home State priority. The PKPA prioritizes "home State" jurisdiction by requiring that full faith and credit cannot be given to a child custody determination by a State that exercises initial jurisdiction as a "significant connection State" when there is a "home State." Initial custody determinations based on "significant connections" are not entitled to PKPA enforcement unless there is no home State. The UCCJA, however, specifically authorizes four independent bases of jurisdiction without prioritization. Under the UCCJA, a significant connection custody determination may have to be enforced even if it would be denied enforcement under the PKPA. The UCCJEA prioritizes home state jurisdiction in Section 201. Shortly before the wedding, the couple signed a prenuptial agreement drafted by the husband. The agreement set forth, among other things, a provision waiving the parties’ rights to alimony upon divorce. The body of the agreement acknowledged that each party attached a schedule of their various premarital assets and obligations. However, the husband did not attach his schedule until a year after they signed the agreement. The wife filed for divorce. After a trial, the district court entered a decree and issued findings of fact and conclusions of law. In its findings, the district court: (1) characterized a lot as community property and ordered it sold; (2) valued the Las Vegas house at $60,000; (3) declared the alimony waiver provisions of the prenuptial agreement unenforceable; and (4) granted the wife $14,400 in unpaid support, $3,000 in rehabilitative alimony and $3,000 in attorney’s fees. To pay off community property interest of her former husband, the former wife refinanced the houses awarded in decree; new title was held with her boyfriend as tenants in common. Later, the boyfriend moved out, and the former wife made payments on her own for five months, and then sold the house. The district court’s 82%/18% split gave former wife $37,947.96, and boyfriend $8,330.04. P> The Court cited several cases holding that social security benefits cannot be considered, distributed, or offset in marital property divisions. Reversing the reduction in the wife’s monthly share as based in part on such a prohibited consideration, the Court affirmed the holding below that each party’s social security benefit was separate property. 65279;The matter is somewhat more complicated, however, as detailed in the Thrift Savings Plan section of these materials. For now, it is probably sufficient to state that any disability presents an opportunity for a sum of cash, which could be substantial, to disappear during or after the divorce. If the divorce precedes separation from service, it is probably a good idea to get a court order on file just as early as possible either prohibiting any withdrawals, or at least sheltering the sum to which the former spouse is to assert a claim. bsp; a. Further, under McMonigle, the moving party in a custody proceeding must show that the circumstances of the parties have materially changed "since the most recent custodial order," and events that took place before that proceeding are generally inadmissible. Under the existing case law, the scope of judicial discretion in "disproportionate division" cases would appear to be at least as broad as that exercised by trial courts in other contexts, such as awarding alimony or awarding attorney’s fees. In disproportionate division cases, the court need only find (and identify in writing) some "compelling reason" (presumably, tied to one of the categories identified by the two opinions) without doing any of the things that have been found to be an "abuse of discretion" in other contexts, such as making a pronouncement in the absence of any substantial evidence in the record, or reaching a conclusion based on an identifiably erroneous legal rationale. The Supreme Court held that overtime should be included as income, if it is substantial and can be determined accurately. Id. at 841. The Court remanded for the district court to reconsider its finding that the father’s overtime shouldnt be considered in determining gross monthly income. The Supreme Court reversed. The Court held that when relocation significantly impaired the other parent’s ability to exercise the responsibilities he or she had been exercising, it constituted substantially changed circumstances which justified a reexamination of custody based upon the best interest of the children, taking into account all relevant factors, including the effects of relocation. The Court noted that an order changing custody if the primary custodian chooses to move after the court denies a motion to relocate appeared to be designed to punish the primary custodian. The Court found that the punitive nature of the order was made clear due the fact that it changed custody without any provision for the mother to have any contact with the children. The Court reiterated that it made it clear that district courts could not use changes of custody as a sword to punish perceived parental misconduct citing to Sims v. Sims, 109 Nev. 1146, 1149, 865 P.2d 328, 330 (1993). UP> The arrangement can be set up at the time of divorce. In Waltz v. Waltz,1 the Nevada Supreme Court approved a decree which awarded the entire military retirement to the retiree, but ordered him to pay the former spouse, by military allotment, $200 plus cost of living adjustments on that sum, as "permanent alimony." The military service had overlapped the parties’ marriage by just less than ten years, precluding direct payment of a property award through the military pay center, and the appellate court found that in the context of the case, the parties’ use of phrase "permanent alimony," in conjunction with the COLA clause, showed an intent to link it to the military retired pay. Further, the court held that payments to a former spouse do not terminate upon her remarriage when the payments were clearly intended to achieve a property settlement. In March 1956, the parties entered into a written property settlement agreement settling property and support. Each party was represented by counsel. The agreement was to be construed under New York law, and that it could not be altered or modified except in writing and executed with the same formality of the prior agreement by both parties. The agreement further provided that there was nothing in the agreement which was to prevent either party from filing for divorce, and if a divorce is filed, it was agreed that the agreement and its provisions would be incorporated by reference or otherwise in, and made a part of, any judgment or decree of divorce granted. The agreement further provided even if the agreement was incorporated, the agreement would not merge, but would survive and be binding and conclusive on the parties, their heirs, executors, administrators and assigns. The wife then came to Nevada and filed for divorce. She requested the property settlement agreement be ratified, approved, and confirmed to survive a decree of divorce entered. The husband answered and after a trial the court entered a decree which provided that the property settlement be ratified, approved and confirmed to survive this decree of divorce. The decree did not contain a specific order directing the husband to pay the wife the monthly installments for support as set forth in the agreement. Jurisdiction to modify was not expressly reserved. The husband requested modification and the district court concluded that it did not have jurisdiction. Courts sometimes differ as to what constitutes "consent"; for most it is any general appearance, but some have required consent to litigation of that particular asset The disconnect, and this discussion, is fully applicable to the military context, where (as discussed below) practitioners now are required to deal not only with the standard military retirement (a defined benefit plan), but also with the Thrift Savings Plan (a defined contribution plan). The Supreme Court issued a writ of prohibition. The Court noted that from the decree and minutes, it did not clearly appear that the wife waived the right to a full and fair hearing concerning the ultimate disposition of the children. Because the wife had not waived her right to a full and fair hearing, the Court held the district court would not rule on child custody sua sponte disposition with neither notice nor opportunity to be heard. The Court held that the district court, having acted without notice where notice was required, thereby acted without or in excess of its jurisdiction citing to Turner v. Saka, 90 Nev. 54, 518 P.2d 608 (1974) and Maheu v. District Court, 88 Nev. 26, 493 P.2d 709 (1972). The Supreme Court reversed. The Court determined that "except for consideration of the economic consequences of spousal abuse or marital misconduct, evidence of spousal abuse or marital misconduct does not provide a compelling reason under NRS 125B.150(1)(b) for making an unequal disposition of community property. If spousal abuse or marital misconduct of one party has had an adverse economic impact on the other party, it may be considered by the district court in determining whether an unequal division of community property is warranted." Id. at 1190. The case was remanded to determine whether there had been such an economic impact. PAN style="FONT-FAMILY: Times New Roman; FONT-SIZE: 14pt"> While the Supreme Court noted Malmquist applies to cases where there are community property contributions to separate property and where separate property is contributed to community property, the Court reversed finding: As to improvements to real estate, the Court found that "usually" simple reimbursement without interest is the proper measure, unless the party making the claim can establish that appreciation of the property was due to the improvements, not the market, in which case the trial court may apportion appreciation to the contribution of the party making the claim. Although NRS Chapter 125 does not contain a definition of joint physical custody, the legislative history regarding NRS 125.490 reveals the Legislature's understanding of its meaning. Joint physical custody is "[a]warding custody of the minor child or children to BOTH PARENTS and providing The Supreme Court reversed. There was a substantial revision of Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991). The Court held a district court may not deny a removal petition solely to maintain the existing visitation pattern. The enhancement test was replaced by a showing that the moving party’s quality of life will not decrease by the move. The Court rejected the request of movant to adopt a presumption in favor of removal. However, the Court stated: In further exposition, the Court found the child support statutes binding in all cases, with parties permitted to deviate upward or downward from the guidelines only on stated facts which are made written findings by a trial court, and based on the statutory factors of NRS 125B.080(9), which it further found are "exclusive, not illustrative." 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]. SUP> To be blunt, the presumptive maximums remove the analysis from a percentage of income approach ¨C there ceases to be a correlation between the minority time share parent's presumed contribution and the artificially low presumptive maximum amounts. It would be an error to directly compare post-Mansell cases with those concerning divorce decrees issued prior to Mansell. Courts that have reviewed decrees issued after 1989 have often held the language used in the decree to a higher standard of clarity. This is reasonable, since after Mansell it would be at least theoretically possible for a divorce court to anticipate the question, and issue an order specifically intending to permit or forbid a post-divorce recharacterization of retirement benefits into disability benefits. As briefly recounted above in the section introducing the USFSPA, there is more than one way to obtain collection of a court award from an active-duty or retired military member. You can find Child Support exceeding the statutory presumed maximum The Marren and Page Case List Mack Ashlock Uniform Child Custody Enforcement Act Las Vegas retirement law expert Overview of Disability Benefits in the Military Retirement System In Search of a Coherent Theoretical Model for Alimony Section III retirement benefits An Introduction to Pensions in Nevada Divorce Law Section V Protecting the Interest of and Getting Money from People in th Military Wha What Almost Happened to Child Support in Nevada and Why We Still Have to Fi Rivero State Bar Amicus Brief Part Two Subsection III C The Marren and Page Williams v Williams Why the Nevada Welfare Division is Calculating Interest and Penalties Incor Domestic Violence Divison of Military Retirement Benefits In Divorce Section IV Valuation of Divorcing the Military and Serving the Civil Service Section II Subsection The Marren and Page Case List Petersen v Petersen Williams v Waldman and Co The Special Problem of Divorce Decrees Entered in Foreign Countries as to D Divorcing the Military and Serving the Civil Service Section III Subsection Military Retired Pay and the Dangers of REDUX The Marren and Page Case List Ellett v Ellett Gojack v Second Judicial Dist The Marren and Page Case List Ford v Ford Child Support exceeding the statutory presumed maximum available at lvfamilylawyer.com by clicking above. 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