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Division of Just Community Property or Other Property Considered
Learn more about Division of Just Community Property or Other Property Considered.
Separate property of one spouse may be used for the support of the other spouseThe spousal rights provisions only apply only if the TSP account contains more than $3,500. If the participant is married and wants to make a partial withdrawal of funds, the spouse’s notarized written consent to the withdrawal is required. 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"6 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 61.7 Several years after their divorce, the wife asked the district court to order the husband to increase child support payments. On grounds of need, the wife also asked for fees to pay her attorney. The district court increased child support and awarded the wife $2,500 in fees. For example, if the member was married to the former spouse for 15 out of 20 years of total service, and he married the later spouse a year after the divorce from the former spouse, then the equities would seem to clearly favor the former spouse, who would have a 75% marriage/service overlap, compared to the later spouse’s 20%. 1. Except as otherwise provided in NRS 125A.335 or by other state law, if a court of this state has jurisdiction pursuant to the provisions of this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless: Hermanson v. Hermanson, 110 Nev. 1400, 887 P.2d 1241 (1994) The parties married while the wife was pregnant. The wife claimed that she told him the father was another man; the husband admitted that wife never told him that he was the father of the unborn 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 husband filed a motion requesting that the child be named his "defacto child"; the wife opposed and requested blood tests. A referee heard the motion and recommended an order that the case be found "similar to Frye v. Frye, 103 Nev. 301, 738 P.2d 505 (1987) based on the conduct of the parties," and that the husband "should be declared the real father." The district court sustained the wife’s objection and ordered blood tests, which conclusively proved the husband’s non-paternity of the child. On return, however, the district court found that the wife had failed to rebut a conclusive presumption of California Evidence Code section 621, and further ruled that the wife was equitably estopped from denying the husband’s paternity. Where the statutory presumptive maximum operated to reduce statutory support below what NRS 125B.070 set out for percentages of income (i.e., 18% for one child 25% for two children, etc.), a rational maximum presumptive deviation would be the difference between the statutory presumptive maximum, and the percentage of income otherwise payable.1 Under the "presumed direct contribution" theory, the child would be enjoying some benefit of the relatively wealthy 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. Arguably, the military retirement system provides the most arcane, convoluted, and illogical of the death and survivorship interests of any major retirement system. These materials deal with what benefits are in issue, sketches how they work, and makes some suggestions for dealing with those assets before they become liabilities, specifically addressing how the practitioner can achieve cost-shifting in one direction or the other as might be appropriate in a given case. B> The removal or retention of a child from his or her habitual residence is "wrongful" if it is in violation of rights of custody of the left-behind parent that were actually being exercised, or would have been but for the removal or retention. The Supreme Court reversed. The Court discussed the homestead statute and that on its face, it seemed to indicate that the exemption was always enforceable against a party seeking to execute on the homestead, unless the party can demonstrate that he or she came within one of the statutory exceptions. By applying the statute in a strictly technical fashion, the Court noted it appeared that the wife’s judgment did not come within one of the listed exceptions. The Court held that to interpret the statute in a highly technical fashion would lead to an absurd result and would contravene the legislature’s intent in enacting this statute. The Court noted that Homestead laws were designed for the purpose of protecting families and making families secure in their homes from creditors they were unable to pay. Because of that when an ex-wife or child attempted to enforce court-ordered support payments, the rationale behind upholding the homestead exemption could no longer be said to apply, since the policy of protecting the family would no longer be served by such an application. The Court did not believe that a former family member attempting to enforce a support judgment could be considered to be a creditor of the kind against which the legislature sought to protect the homesteader, and that it would be unfair to permit the homestead to be used as a shield under those circumstances to insulate a father from being forced to pay the support that was owed to his own children. The Court further noted that the father owed his first family a duty of support long before the second marriage arose, and he entered into the second marriage well aware of that duty. The Court held that to permit the application of the homestead laws to protect the husband’s second family, at the expense of depriving his first family of the support to which they are entitled, was not a result intended by the Nevada Legislature in enacting the homestead laws. Id. at 609. No QDRO is required for a TSP distribution; the TSP will honor any order that expressly relates to the TSP account of the participant, has a clearly determinable entitlement to be paid, and provides for payment to some person other than the TSP participant. This includes payments directly to the attorney for the former spouse. Attorneys drafting TSP orders should note that plan balances are always calculated on the last day of the month. It has since then been made clear that the "workshop" had nothing to do with figuring out what might be mathematically and legally correct, but was the announcement of a "done deal" that Welfare would do what NOMADS was capable of doing, irrespective of logic or consequences. As explained by Deputy District Attorney Edward Ewert in his revision and expansion of the Child Support section of the Nevada Family Law Practice Manual:3 P> Within their briefs, both parties state their arguments under the UCCJEA. However, neither seriously analyzes the applicability of the UCCJEA to foreign countries. Nor does either party discuss the legal impact of Father¡¯s Answer to the Complaint filed by Mother in the district court. Accordingly, the USFSPA included special jurisdictional rules that must be satisfied in military cases to get an enforceable order for division of the benefits as property. In other public and private plans, any State court judgment valid under the laws of the State where it was entered is generally enforceable to divide retirement benefits; this is not true for orders dividing military retirement benefits as property. The rules do not restrict alimony or child support orders, which will be honored if the State court had personal and subject matter jurisdiction under its own law. B> The Nevada Supreme Court has struggled with alimony cases since such cases have been decided; even the case lines developed since the "no fault" era began half a century ago have been inconsistent and unpredictable, in both approach and results. Oregon X 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."3 The spousal rights provisions only apply only if the TSP account contains more than $3,500. If the participant is married and wants to make a partial withdrawal of funds, the spouse’s notarized written consent to the withdrawal is required. This analysis is simplest where a secondary custodian spends less time with a child than is considered "normal." In the bulk of cases it could be fairly presumed that there is less direct expenditure on the child by the non-custodial parent, which would favor an upward deviation from guideline support. Even here the rule should not be made axiomatic - it is possible to propose facts where the presumption of lesser direct expenditure is rebutted, as would be the case of a parent who travels a great deal, but directly pays for a significant quantity of a child’s activities, transportation, food, health care, clothing, etc., anyway. In 1989, the Nevada Legislature added NRS.125.150(8), requiring a court granting a divorce to "consider the need to grant alimony to spouse for the purpose of obtaining training or .. education relating to a job, career or profession." This provision did add some language indicating what such an award would encompass, and at least two factors to consider in making such an award (whether the obligor obtained job skills or education during the marriage, and whether the recipient provided financial support while the obligor did so). The fine-line drawing calls into question the ends that are supposed to be served by the prohibitions embedded in our ethical rules, and whether the public policies implicated are served by allowing or prohibiting either "results-achieved bonuses," or regular contingency agreements, given the place of divorce in modern American life. Put another way, is there still a legitimate purpose to be served by preventing counsel from being retained other than on a strictly hourly basis in cases involving alimony, or any other domestic relations matters? State statutes and cases express different preferences for the possible "cash out/exchange" and "if/as/when" division methods of allocating retirement benefits. Arizona terminates community property accruals, for the most part, on the date of filing and service of a petition for divorce.2 There, on the same facts, the math would be 10.5 (years of marriage) ¡Â 20 (years of service) x .5 (spousal share) x $1,000 (pension payment) = $262.50. This is confirmed by the earlier Choate opinion itself - what the Court was trying to do was figure out if proceeds from an accident suit would be community property or separate property under Idaho community property law. Similarly, in Braddock, the question was whether the various kinds of property acquired in Ohio were marital property, or solely owed by the husband; it is only that question, and not how property might be divided, to which the Court turned in "again applying the law of Ohio."4 P> NRS 125.155, enacted in 1995, establishes a set of special rules applicable only to PERS retirement benefits in divorce. Officers of the Family Law Section did not discover the proposal until nearly the last day of the legislative session, which in its original form would have significantly altered several spousal protections built into Nevada’s community property laws.5 It was quickly altered, but even the remaining portion contains provisions that either appear to run afoul of Nevada Supreme Court holdings,6 or otherwise appear to raise equal protection issues, since they treat participants in PERS differently than participants in all other pension plans. Those responsible for the decades of delay and millions of dollars of wasted expenditure on NOMADS should be identified and publicly censured. And the Nevada Legislature should direct Welfare to actually collect correctly calculated interest and penalties on child support judgments, neither front-loading, nor later ignoring, statutory penalties. Welfare should be discouraged from continuing the gamesmanship of looking for legal cover with which to paper over its deficiencies, and discouraged from trying to amend the law to match their inaccurate and backward approach. You can find Division of Just Community Property or Other Property Considered The Marren and Page Case List State of Montana v Lopez Domestic Violence Rivero v Rivero Opinion III B FERS expert lawyer The Marren and Page Case List Nixon v Brown and Schmanski v Schmanski The Marren and Page Case List Engebretson v Engebretson The Uniformed Services Former Spouses Protection Act Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Death Benefits in the Military Retirement System Division of Just Community Property or Other Property Considered available at lvfamilylawyer.com by clicking above. Site Map Public Employees Retirement System PERS Benefits Section III Subsection A P Love me Love My Dog Family Law and Contingency Fees Time to Reconsider Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Divorce Jurisdiction Rivero v Rivero Opinion Section VI Divison of Military Retirement Benefits In Divorce Section V Subsection G Reciprocal Links: Division of Just Community Property or Other Property Considered Division of Just Community Property or Other Property Considered Division of Just Community Property or Other Property Considered Division of Just Community Property or Other Property Considered |