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Divison of Military Retirement Benefits In Divorce Section X Subsection C
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Court Ordered Divisions of the TSPP> 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. The affirmance on appeal centered on the Nevada Supreme Court’s approval of the primary holding - that Davidson had committed "fraud upon the court," which is not subject to NRCP 60(b)(3)’s six-month limitations period, and can be addressed by a court at any time, even sua sponte. See Murphy v. Murphy, 103 Nev. 185, 186, 734 P.2d 738, 739 (1987). It must not require payments to an alternate payee before the retirement of a member or the distribution to or withdrawal of contributions by a member. For example, the military has its own set of mortality tables, set out by officers and enlisted members, and by disability and non-disability retirements. At least for non-disability retirements, there is a significant reduction in death rates for military members, boosting present values. Adopting the Actuary's valuations would require accepting its presumption of annual COLA increases, inflation assumptions, and its allowance of high likelihood that the government will make the payments, which leads to assumed inflation of only 3 percent, and an assumed present value discount rate of 6.25%, with a resulting "real interest rate" of 3.25%. These assumptions, in turn, greatly increase the present value from that which would be reached using certain commercial assumptions. Far better than trying to fix such problems would be to avoid them altogether, of course. Preferable mechanisms by which payments after the member’s death could be accomplished include private life insurance (with the intended beneficiary as owner),2 or beneficiary status under the Survivor’s Benefit Plan, discussed above. In reversing, the Supreme Court found the record to show that the wife "continually sacrificed in order to promote [husband’s] career desires and opportunities" and that"[t]he magnitude of [wife’s] contribution to the community over many years is not fairly recognized by the two-year alimony award she received when the marriage was terminated." Id. at 1058. Factors recited as important were the length of marriage, comparative earning capacities of the parties, the contributions the wife made in assisting the husband to achieve his present level of success, and the wife’s financial contributions to the community and the husband’s education, and financial detriment in accommodating the husband’s desires to relocate for his career. Without explaining any precise measure, the Court mandated an extra ten years of alimony at $1,000 per month, which, while still failing "to achieve income parity between the two" was fair under the totality of the circumstances, but also remanded with direction that the district court retain jurisdiction to review the award "in the event of a substantial change of circumstances that would suggest the need for additional relief to either party." Id. at 1059. The family division of the district court issued a temporary protective order against the defendant. A complaint was filed in the municipal court charging the defendant with a misdemeanor based on alleged violation of the protective order. The defendant moved to dismiss the charge contending the Legislature granted exclusive jurisdiction to issue and enforce TPO’s to the district court and the justice court. The City opposed the motion contending the municipal court had jurisdiction to enforce TPO’s. The municipal court judge granted the motion to dismiss. The City appealed to district court and filed a petition for writ of mandamus with the district court. The district court denied the petition and dismissed the appeal. The city then filed a writ of mandamus with the Supreme Court. The Supreme Court granted the petition stating: IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, pursuant to the stipulation of the parties, SPOUSE shall have no interest whatsoever in said military retirement benefits as community property or her separate property, having waived said rights on condition and in exchange for a stipulated Order of this Court for an award of unmodifiable alimony for her support, beginning the first day of the first month following MEMBER's retirement or attainment of eligibility for retirement (or any other form of compensation attributable to separation from military service), [AL T beginning the first day of the first month following entry of this decree, or insert agreed date] in an amount equal to __ % of the military retirement benefits to which MEMBER is or would be eligible upon retirement or eligibility therefor, [ALT2 in the sum of Implicit in this Court¡¯s inquiry is whether the phrasing of the "QDRO-like" provisions adopted by the Nevada Legislature in 1993 for PERS somehow prohibits an order, as in Wolff, requiring the member to pay the spouse¡¯s share to the spouse for the period from eligibility to actual retirement. Based on comparable provisions from the other major retirement systems, the answer should be "no." Second, each year the COLA for such members is less than for other retirees (Consumer Price Index adjustment minus one percent). However, at age 62, the retiree's monthly income is recomputed to supply the sum that would have been paid if the full COLA had been applied every year from retirement to age 62, which at that moment becomes prospectively payable, as ifthere had been no reductions during those intervening years." After that "restoral," however, the reduction returns with each COLA after age 62 for life. The former wife and children sought, among other things, to have the district court declare that a time certificate of deposit for $385,000 issued to "Howard F. McKissick, Jr., and/or Dorothy McKissick" (Dorothy was the husband’s second wife) was an asset of the husband’s estate subject to claims of creditors, and thereafter distributable to his heirs at law. The district court declared that the time certificate of deposit was held in joint tenancy by Howard and Dorothy prior to the husband’s death, and became Dorothy’s property by operation of law. SUP> Nevada case law has long held that property acquired during marriage is presumed to be community property, and that the presumption can only be overcome by clear and convincing evidence.2 The first Nevada case explicitly noting that retirement benefits earned during a marriage are divisible community property was apparently Ellett v. Ellett.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. Jones is also in the group of cases explaining that Mansell calls on courts to essentially take a snapshot at the time of divorce, when the award to the spouse is made. Any disposable retired pay that was already waived in favor of disability pay up to that point is not divisible, but any attempt by the member at post-divorce reduction in retired pay by recharacterization is seen as attempting a "de facto modification" of a final property award, which community property law does not permit.15 The parties were divorced September 1983. The decree incorporated the parties' property settlement agreement, which provided that the husband make alimony payments of $3,000 per month for 60 consecutive months, and thatthe husband would purchase the wife's community property interest the medical practice for $1.25 million. In November 1987, the husband filed a Chapter 7 petition for bankruptcy. His property settlement obligation was discharged but his alimony obligation was not. On November 23, 1988, the wife obtained a judgment for $126,000 in alimony arrears. On August I, 1990, the husband made his last alimony arrearage payment by prepaying the payment due on September 1. On August 31, the wife filed motion to modify the alimony provisions of the decree, due to the fact the husband's income had increased substantially since the original decree and thatthe discharge of the property settlement obligation in bankruptcy had negatively affected the wife's financial position. The husband's alimony obligation was increased to include the property settlement he discharged. 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. 65279;The Court compared and contrasted the parties' income earning abilities. The Court noted the wife's marketability was not promising and even though she had completed 90 credits toward her undergraduate degree, a degree would not guarantee her a career, much less a salary allowing her and her family to live in the manner to which they have become accustomed. The husband had developed the business skills which had provided him with a thriving business and substantial assets. The wife was also awarded a minority interest in the husband's family nursing business which gave her no control over whether she would receive any income from the partnership. The Court remanded and directed the lower court to "increase and extend" the alimony award so that the wife, who had not worked outside the home in decades, would enjoy, "as nearly as possible," the "station in life" she had prior to the divorce until she remarried, died, or her financial circumstances changed. P> During the same hearing, the district court also addressed the custody timeshare arrangement because the parties had been unable to reach an agreement in mediation. Although the divorce decree provided Ms. Rivero with custody five days each week and Mr. Rivero with custody two days each week, the district court concluded that the parties actually intended an equal timeshare. The district court noted that it was "just trying to find a middle ground" between what the divorce decree provided and what the parties actually wanted regarding a custody timeshare. Further, the court found that the decree's order for joint physical custody was inconsistent with the decree's timeshare arrangement because the decree's five-day, two-day timeshare did not constitute joint physical custody. In its order, the district court concluded that the parties intended joint physical custody and ordered an equal timeshare. 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: This Court’s resolution of this appeal should include the direction that when dividing retirement benefits, absent findings of a compelling reason under NRS 125.150(1)(b) to do otherwise, if only one survivorship interest requires the payment of a premium, that premium cost should presumptively be divided between the spouses as part of the equal division of their property. 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