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Division of Military Retirement Benefits in Divorce Section B
Learn more about Division of Military Retirement Benefits in Divorce Section B.
1 Variation in Final Date of AccrualSUP> 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.16 Even if Mansell does have to be considered in post-divorce recharacterization cases, courts have pretty uniformly mandated that former spouses must be compensated, by awards of other property, or alimony, or (most commonly) dollar-for-dollar compensation of all amounts that would have been paid but for the recharacterization. Other courts have expressly found that reimbursement is required, whether or not there was any kind of indemnification or safeguard clause in the underlying decree.3 SUP> In 1989, the United States Supreme Court accepted a divorce case out of California, and issued a decision in Mansell v. Mansell.8 The basic holding of the case was to declare that military disability awards were not divisible community property. For example, presume the member-spouse is the defendant, served in Nevada, but he expressly refuses consent to the court's jurisdiction, claims that his presence in Nevada is solely by reason of assignment, and that his State of residence and domicile are elsewhere, say in Florida. The spouse could then file a parallel action in Florida, and serve that action on the member, with the claimed intention of letting the two jurisdictions figure out which action should proceed. In my personal opinion the statute is not ambiguous. "10 percent per annum, or portion thereof, that the installment remains unpaid" does not truly seem susceptible to alternative good faith interpretations. The language used in NRS 286.6703 (the provision calling for payments to "Alternate Payees") has implications that are significant to the practicalities of litigation, both as to what is stated, and what is not stated. Unlike many other retirement plans, there is no requirement that the order be a final order, so apparently an interim order is enforceable. The "other dependent" language in the definition of permissible alternate payees appears to clear the way for "palimony" or other such awards. There does not appear to be any payment limitation, so even 100% of the benefit could be transferred from the employee to the other party in an appropriate case. This is not to say that the case law has uniformly favored former spouses. Where counsel for the former spouse was not sufficiently careful in drafting the language of the decree, where the funds paid to the former spouse were not a portion of the retired pay but a sum meant to compensate the former spouse for her interest therein, and where no argument could be successfully made that the funds were necessary for the support of the former spouse, the former spouse’s interest has sometimes been found to be dischargeable.8 P> The key to the holding is not whether the clients signed off on the document. As noted in the opinion, they appeared to have done so, since "Davidson forged each of the Garner family member’s signatures in original ink on the release, even going so far as to steal a notary stamp from a neighboring office and forging the notary’s signature on the release." The reader is cautioned that the approximations can be altered to some degree by such random events of which parent has the starting week, or whether the schedule starts on January 1 or somewhere in the middle of a year. Even a leap year can alter the math. SPAN> 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. If the member is of a rank where "dream sheets" regarding preferred postings are available, they should be sought in discovery. If a member lists a jurisdiction as his primary (or only) preferred duty station, a good case could be made that the member’s location there is not only "because of military assignment." Find out what his prior postings were, and whether (and how many times) he has returned to the forum after being stationed in some other place. The mother requested a child support increase. The referee considered income of noncustodian’s spouse. The Supreme Court reversed stating, "[t]he statutory scheme does not authorize consideration of spousal income. In fact, the Nevada Legislature rejected a proposal to include spousal income. . . . A trial judge might properly consider spousal contributions where they have a significant impact on recognized statutory factors, such as the parents’ standards of living or their relative financial means. However, Nevada law does not authorize using spousal income directly." Id. at 1112. The parties were divorced August 1943. The property settlement agreement provided that the husband would pay support of $150 per month so long as he did not revert to his rank of Lieutenant Colonel and if he did, his payments would be reduced to $100 per month. In May 1946, the husband filed a motion to construe the decree because he reverted to Lieutenant Colonel for one day and then promoted by to Colonel. The matter came on for hearing October 1946. The district court denied the husband’s request. First, the Missouri definition recognizes that "joint physical custody" could exist even if parents do not have an equal time share. The FLS asks the Supreme Court to clarify that an award of joint physical custody should not be an option the trial court may consider unless some objective minimum time threshold is established. The mother appealed, arguing parental preference was not merely a factor among many factors. The Court began by noting that the district court has broad discretionary powers in determining custody, and the determination will not be disturbed absent an abuse of discretion citing to Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993). The Court distinguished the holding in Fisher v. Fisher, 99 Nev. 762, 670 P.2d 572 (1983), which the grandparent’s argued de-phasized the parental preference doctrine. The Court reemphasized the best interest of the child is usually served by awarding his custody to a fit parent citing to McGlone v. McGlone, 86 Nev. 14, 17, 464 P.2d 27, 29 (1970). The Court found that it was undisputed that the mother was a fit parent. The Supreme Court reversed stating, [w]e conclude that the parental preference policy is a rebuttable presumption that must be overcome either by a showing that the parent is unfit or other extraordinary circumstances." Id. at 38. [citations omitted.] One California court, surveying cases from around the country, held in 1999 that Mansell does not apply to post-judgment waivers of retirement pay at all, because Mansell held only that disability benefits could not be divided "upon divorce."1 Other courts have, similarly, found that a court can issue a spousal support award, post-divorce, sufficient to ameliorate the impact on an innocent former spouse whose "economic circumstances have deteriorated through no fault of her own" by reason of the former husband’s post-divorce application for disability benefits in lieu of retirement benefits.3 B> Property specifically excepted from the definition of community property is "separate property," which is defined in NRS 123.130 as "[a]ll property of the wife owned by her before marriage, and that acquired by her afterwards by gift, devise, descent or by an award for personal injury damages, with the rents, issues and profits thereof" and "[a]ll property of the husband owned by him before marriage, and that acquired by him afterwards by gift, bequest, devise, descent or by an award for personal injury damages, with the rents, issues and profits thereof . . . ."1 The decree incorporated a written settlement agreement between the parties. The agreement provided that the husband was to pay the wife $1,200 a month in alimony for a period of eight years. September 1990, was to be the last month of alimony. At the beginning of the month, the husband sent the wife a check in the amount of $1,000. A few days later he sent her a check in the amount of $200. Later that month, the wife filed a motion to increase and extend the payments for life. The district court entered an order dismissing the request for modification, with the apparent reason being that the district court concluded that it lacked jurisdiction. SUP> In performing reviews regarding indemnification intent, most courts have been careful to not give retroactive effect to either the USFSPA, or any case interpreting it (i.e., Mansell) so as to defeat an existing flow of payments to a former spouse. As stated by various courts over the years, it would "thwart the very title of the Act, the ´Uniform Services Former Spouses’ Protection Act,’ to construe the law as preventing a spouse from actually receiving a court ordered portion of military retirement benefits."9 Some of the States in the group which found the USFSPA inadequate authority to allow the re-opening of gap cases never passed legislation permitting those divorced during the gap to bring their decrees into conformity with those divorced before McCarty or after the USFSPA. The case law of such States, such as Texas, provides that McCarty-era divorces giving 100 percent of the retirement benefits to the member could not be revisited.4 As the number of living persons with McCarty-gap divorces dwindles, it becomes ever less likely that additional States will pass window statutes. The question is what to do in a joint-but-not-equal-custody situation, where the minority time-share parent makes far less than the majority time-share parent. Under our proposal, if the minority time-share parent was granted a custodial schedule of 43% of the time, the trial court would find a prima facie case for downward deviation and proceed to the benefit/detriment balancing test. SUP> 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.16 Even if Mansell does have to be considered in post-divorce recharacterization cases, courts have pretty uniformly mandated that former spouses must be compensated, by awards of other property, or alimony, or (most commonly) dollar-for-dollar compensation of all amounts that would have been paid but for the recharacterization. In some circumstances, such as where both parties have resided overseas for a substantial period of time, or the children were born in a foreign country, the best route to obtaining a legitimate order for custody might be through the courts of the foreign country. The Uniform Child Custody Jurisdiction and Enforcement Act recognizes many foreign countries as "States,"2 and such orders may generally be registered and enforced in the United States. UP> The SBP applies automatically to a member who is married or has at least one dependent child at the time the member becomes entitled to retired pay, unless the member affirmatively elects not to participate in the SBP.1 The member’s spouse must be notified of any attempt by a member to not designate a spousal SBP interest,2 and must consent to any election not to participate in the SBP, to provide an annuity for that spouse at less than the maximum level, or to provide an annuity for a dependent child but not for the spouse.3 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. In marked contrast to the multiple line-drawing and subtle distinctions discussed above regarding the death of a member, the death of a spouse has a very simple effect - the member is freed from all relevant restrictions, claims, and costs. The Supreme Court reversed. The Court noted where part of the purchase price of one spouse’s separate property is paid with community funds, the community acquires a pro tanto interest in the property, citing to Barrett v. Franke, 46 Nev. 170, 208 P. 435 (1922). The Court held that there was no apparent justification for ignoring the community property interest in the home. As to the house which was built on the lot, the Court voted that the labor and skills of a spouse belong to the community citing to Ormachea v. Ormachea, 67 Nev. 273, 297, 217 P.2d 355, 467 (1950) and held that the husband’s labor was a community asset even if it occurred after his regular job ended. The case involved an appeal from an order granting the father’s motion formodification of child support, and an order denying the father’s request for summary judgment and resolving a complaint challenging paternity. The parties were married September 1981. The parties’ purported child was born April 1982. In December 1993, the father found out he was not the biological father. In February 1995, the mother sought to reduce arrears to judgment and increase support. In August 1995, it was reconfirmed the father was not the biological father. The district court denied the father’s request for summary judgment. The district court ordered the father to pay support of $1,800 per month and to pay educational costs including tuition. The district court also awarded attorney’s fees to the mother. The district court’s order did not state the basis for its award of attorney fees and costs. An attorney should not charge a fee the payment or amount of which is contingent upon: (i) obtaining a divorce; (ii) custody or visitation provisions; or (iii) the amount of alimony or child support awarded. An attorney may charge a contingent fee for all other matters, provided that: SUP> The Moore approach grants the community a pro rata share in the increased value of a separate property residence according to the ratio that mortgage principal reduction attributable to community property bears to the original purchase price.16 Thus, if the community paid 10% in principal of the original purchase price of the home, the community would be entitled to 10% of the increased value of the home. Under Moore, the entire unpaid mortgage balance at divorce is credited to separate property, in addition to the amount by which the separate property mortgage payments (pre-marriage) reduced the mortgage principal.17 The total of the separate property mortgage principal is then divided by the original purchase price of the home to yield the fraction of appreciation that remains separate property.18 An attorney wishing to personally estimate present values can purchase computer programs that do the math involved quickly.2 Such programs often allow the user to plug in the assumptions to be used, such as life expectancy, presumed interest rate, etc. In any event, attorneys handling these cases in States that allow or require trading the present value of the retirement benefit must become well versed in all aspects of valuation, interest rate assumptions, and other factors involved. Failure to do so invites disaster at settlement or in court. B> While partition might be available to a shortchanged former spouse after divorce, that expectation is not much to rely upon. If the law of the relevant state (which may or may not be the state of divorce) does not provide a way to correct the omission of assets from the decree, the only mechanism for recovery for a divested spouse could be a malpractice suit against her1 attorney. The non-uniform and uncertain state of the law governing partition of omitted assets therefore makes it imperative for counsel to seek out and address all pension benefits during the divorce case itself, as a matter of prudent, if not defensive, practice. At the father’s request, a five minute hearing was set for April 3, 1985, on motions for "modification of divorce" and an order to show cause. At the time of the hearing, there was only an outstanding motion to set aside the decree of divorce, but the father had not recently acted on that motion and had remarried. The motion for an order to show cause did not seek a permanent change of physical custody. The mother did not appear at the hearing. The district court stated that the mother intended to disobey court orders and intended to deny the father a normal relationship with their daughter and changed custody. The Supreme Court held that NRS 111.250(1) (Statute of Frauds) specifically precluded the creation of any interest in land except by a properly executed instrument. Schreiber v. Schreiber, 99 Nev. 453, 663 P.2d 1189 (1983) In 1977, the parties’ separated. The parties orally agreed to divide the community property and to go their own ways. The family residence was sold and the proceeds divided equally. The wife received most of the family assets, while the husband received the assets of a masonry contracting business owned and operated by the community. In 1980, the wife filed for divorce and sought a division of the community property. The district court found that the parties had entered into an oral agreement to divide their community assets. However, because the agreement was not in writing, the district court found that the agreement was of no effect had no effect upon the division of community property. You can find Division of Military Retirement Benefits in Divorce Section B Exhibits on Rivero Exhibit Three Section Four Continued Introduction to Nevada alimony and spousal support law Las Vegas expert pay child support Abbott and International Kidnap Hague Kennedy v Plan Administrator for Dupont Savings and Investment Plan The Marren and Page Case List In the Matter of the Parental Rights as to Co Division of Military Retirement Benefits in Divorce Section II Subsection A Cases and Trends Recharacterization is Generally Not Permitted Coping with COLAs Child Custody Modification Jurisdiction If As When a Monthly Annuity Death of Member Before Retirement and Before Divorce Public Employees Retirement System PERS Benefits Section II Subsction B Division of Military Retirement Benefits in Divorce Section B available at lvfamilylawyer.com by clicking above. Site Map The Marren and Page Case List Abell v Second Judicial District Court Cole v The Marren and Page Case List Cord v Neuhoff The Marren and Page Case List In re Wilsons Estate Burdick v Pope and Fick Exhibits on Rivero Exhibit Three Section Three Abbott and International Kidnap Hague Divorcing the Military and Serving the Civil Service Section II Subsection Military Retired Pay and the Danger of REDUX Reciprocal Links: Division of Military Retirement Benefits in Divorce Section B Division of Military Retirement Benefits in Divorce Section B Division of Military Retirement Benefits in Divorce Section B Division of Military Retirement Benefits in Divorce Section B |