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Either Federal or State Courts May Make the Hague Determination
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Hague convention determinations65279;The reason for not only permitting, but encouraging the use of such indemnification clauses was explained well by the Minnesota Court of Appeals in Gatfield it basically ensures that the divorce courts are free to enforce the parties declared intent as matter of contract law. Any court reviewing a decree seeking intent to indemnify must be 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." As might be expected, this has led to litigation throughout the State and federal courts, in just about as many distinct factual situations as can be thought up regarding the order in which retirement, beneficiary selection, divorce, remarriage, beneficiary change directions, and death, happen to occur. Most such cases seem to take place with the participant in an ERISA-governed retirement plan dies, the plan documents on file name one beneficiary, and some other document (say, a divorce decree) include a waiver of the right of the designated beneficiary to receive the survivor’s benefits. The Court applied the requirements of Hill v. Sheriff, Clark County, 85 Nev. 234, 452 P.2d 918 (1969) to juvenile cases. Hill requires a party seeking continuance of a preliminary examination to submit an affidavit listing the names of the absent witnesses and their residences, if known; the diligence used to procure their attendance; a brief summary of the expected testimony of the absent witnesses and whether their evidence could be adduced through other witnesses; when the affiant first learned the witnesses would not attend the hearing; and that the motion is made in good faith and not for delay. The Supreme Court found that the district attorney’s office could have complied with Hill given the two weeks they had to comply. Shortly before the parties’ marriage, they signed a prenuptial agreement. The Court reviewed the requirements for a prenuptial agreement. The Court noted that fiances’ share a confidential, fiduciary relationship and each has a responsibility to act with good faith and fairness to the other. Various lower bankruptcy courts have issued opinions along the same lines.5 Where divorce counsel had the foresight to include language indicating that any sums paid to the member that should, under the decree, have been paid to the former spouse would be considered subject to an express trust, the courts have enforced it as a non-dischargeable debt.6 Some courts have "saved" the allocation to the former spouse only by finding it to be, at root, "in the nature of" some form of alimony or maintenance.7 In sum, in the absence of anything indicating otherwise, property is to be divided equally. And that "anything," in Nevada, is required to rise to the level of a "compelling reason" for an unequal division. Still, it would appear that judges have significant latitude for finding such reasons, and need only make their findings in writing, and avoid obvious abuse of their discretion, to justify an unequal distribution of property. B> Military retirement benefits are so central to any divorce involving those assets that practitioners cannot afford to not know a great deal of the detail required to provide for their adequate disposition. It has become increasingly important for domestic relations practitioners to learn all aspects of relevant retirement plans, and to develop appropriate valuations for those assets, with thoughtful written contingencies for all matters that could vary, including tax, survivorship, and related issues. Only then can counsel intelligently negotiate - or litigate - their clients’ interests in such retirement benefits. PAN style="FONT-FAMILY: Times New Roman; FONT-SIZE: 14pt"> The statute limits direct payment to a former spouse to 50% of disposable retired pay for all payments of property division. 10 U.S.C. § 1408(e)(1). More than fifty percent of disposable pay may be paid (up to 65% of "remuneration for employment" under the Social Security law, 42 U.S.C. § 659) if there is a garnishment for arrears in child or spousal support, or in payments of money as property other than for a division of retired pay. In other words (and counter-intuitively), about the only part of arrearages arising from a divorce judgment that cannot be satisfied by garnishment from retired pay is arrearages in retired pay. 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%. Not all lawyers know that the Bar process could be initiated by either a lawyer or a client, and recent events have led to far greater interest in that process for both, but the system, as now constituted, is nowhere near up to the task of being useful. 65279;The reason for not only permitting, but encouraging the use of such indemnification clauses was explained well by the Minnesota Court of Appeals in Gatfield it basically ensures that the divorce courts are free to enforce the parties declared intent as matter of contract law. Any court reviewing a decree seeking intent to indemnify must be 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." Fraud on the court simply trumps normal considerations of res judicata and settled expectation. The problem, of course, is defining what conduct qualifies. Our Court adopted the definition used by the Sixth Circuit, holding that it: The Supreme Court affirmed. The Court noted that the husband did not take "legal action" to enforce the provisions of the agreement. Instead, the Court found the husband filed a divorce action asking for division of property pursuant to the terms of the agreement. The Court further noted that before any hearing was held or evidence presented, the wife stipulated to the validity of the agreement. The Court held under those circumstances the wife could not have been considered a non-prevailing party for the purpose of awarding attorney’s fees under the agreement. The Court reaffirmed a prior holding that a party cannot be a prevailing party where the action has not proceeded to judgment, citing to Works v. Kuhn, 103 Nev. 65, 68, 732 P.2d 1373, 1375-76 (1987). There really can be no legitimate question that the holdings of the Nevada Supreme Court have discussed precise dates as the start or end calculation triggers for interest, so interest should be calculated on the precise number of days that an arrearage remains unpaid. 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 that was already waived in favor of disability pay up to that point is not divisible, but any attempt by the Since the basic community property law of Nevada has stated for over half a century that the "respective interests of the husband and wife in community property during continuance of the marriage relation are present, existing and equal interests,"1 a statute that gives one spouse superior rights to an item of community property would appear to nearly define an equal protection violation. SPAN> As time passes, and the number of living persons with McCarty-gap divorces decreases, it becomes ever less likely that additional states will pass window statutes. As division of such benefits became more common, some of those earning retirement benefits developed strategies by to resist, limit, or prevent the division of the benefits with their soon-to-be-former spouses, who promptly devised counter-strategies. The total amount of information required for a practitioner to successfully advocate the cause of a participant or spouse relating to retirement benefits seems to continuously increase. One text echoes the question asked by many lawyers: "Why are these documents (and the procedure I have to go through to get them accepted) so difficult?"2 When the divorce is ongoing at the fifteen-year mark of the military career, there is a new danger for spouses of military members who started service after July 31, 1986. There is no provision for spousal consent, or even notification, before a member can take the $30,000.00 CSB/REDUX payment, which irrevocably reduces the lifetime "regular" retirement benefits payout. Especially where the parties have already separated, it is possible that the member could simply pocket the cash payment and the spouse would never even know of the devaluation of the retirement benefits being divided in the divorce. The parties were married in September 1973. The husband filed for divorce September 1994. The matter proceeded to trial in January 1996. At the time of trial, the husband was earning at least $75,000 a year. The wife's annual income was approximately $14,000. The district court denied the wife's request for alimony because she had an extramarital affair, had initiated the parties' separation by leaving the family to pursue the extramarital relationship and had taken $10,000 from their adult son's personal injury settlement. The district court also found as significant the husband's responsible conduct. The decision in Wolff raised other issues. The Nevada Supreme Court has required what PERS prohibits. In Wolff, the Court explicitly affirmed the trial court¡¯s order that the wife¡¯s share would not revert to the husband if she predeceased him, but would instead continue being paid to her estate. The Court held that an Alternate Payee¡¯s portion of the retirement benefits is permanently transferred to the Alternate Payee, and is to be paid to the Alternate Payee¡¯s estate if the Alternate Payee should predecease the Member. PERS, however, rejects orders complying with the mandate in Wolff, making the issue one for future appellate resolution. The Seventh Circuit reached much the same result, but only by means of the tenuous finding that military retirement benefits are not part of the bankruptcy estate because post-petition services are required of the member, making the benefits post-petition wages. The parties were married in May 1963. The opinion does not give a precise length of the marriage, but it appears it was a little more than 20 years. During the marriage, the wife was employed at various positions including employment as a waitress and as a housekeeper. The wife received her high school diploma in 1975 and had enrolled at the community college. When the parties' construction business began operation, the wife was the sole clerical employee and assisted with the business until the parties separated. The husband was also a licensed contractor. The district court awarded the wife alimony of $1,000 per month for two years and $500 per month for the next two years. While this may all seem perplexing, keep in mind that in child custody situations, domestic violence is also a factor to consider under NRS 125.480 (5). There is a direct correlation between the changes to NRS 33.018 and the best interest factors under NRS 125.480(5). In accordance with the law, our beloved pets could slowly be moving from being recognized as just a piece of property, to being thrown into a category akin to children. The below paragraph requires direct payments by the Member until actual retirement and the commencement of payments from the retirement system directly to the former spouse. Pennsylvania X 2. Clarification of emergency jurisdiction. There are several problems with the current emergency jurisdiction provision of the UCCJA ¡ì¡¡3(a)(3). First, the language of the UCCJA does not specify that emergency jurisdiction may be exercised only to protect the child on a temporary basis until the court with appropriate jurisdiction issues a permanent order. Some courts have interpreted the UCCJA language to so provide. Other courts, however, have held that there is no time limit on a custody determination based on emergency jurisdiction. Simultaneous proceedings and conflicting custody orders have resulted from these different interpretations. B> The Nevada child support guidelines were initially derived from the Wisconsin Guidelines, making Nevada one of half a dozen "percentage of income" guideline states. 18 This theoretical model presumes a contribution from the custodial parent, and calculates a contribution from the non-custodian as a percentage of income to support the child in the primary household. While application of such a formula provides consistent and predictable outcomes, thus reducing litigation, strict application of the formula may cause inequity under the unique facts and circumstances of some cases. Thus, in order to balance adequacy in every case versus consistency and predictability, while keeping the formula simple, the Nevada statutory guidelines evolved to combine both a formulaic approach, 19 and discretionary deviation factors that can be tailored to the facts of certain cases, as necessary.20 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. In altogether too many decisions - in Nevada and elsewhere - courts appear to simply decide what is "fair," and then set about constructing rationalizations in support of the conclusion already reached. This may be an artifact of the lack of a coherent theoretical model for either the original award of alimony or its modification once awarded. 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." Third, we conclude that the district court abused its discretion by denying Ms. Rivero's motion to modify child support without making any factual findings to justify its decision. We also clarify the circumstances under which a district court may modify a child support order. Under NRS Chapter 125B and our caselaw, a court has authority to modify a child support order upon a finding of a change in circumstances since the prior order. Also, in accordance with the Family Law Section's suggestion, we withdraw the Rivero formula for calculating child support. 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). 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. The FLS previously proposed 8 and reasserts here that joint physical custody should not be considered by the trial court, unless the child resides with or is under the direct care and unsupervision of a parent for at least 40% of the time. Further, the trial court should not consider an anomaly occurring in one specific year - for example, leap year, illness, emergency or other exigency transiently altering the timeshare; the purpose of the 40% threshold is to define a base and ensure that each parent is routinely the custodian of a child for a meaningful and significant period of time. When the member does have notice, the court may grant the stay anyway if the member requests it. That minimum 90-day stay becomes mandatory if the request includes four items, with no formality requirement:5 You can find Either Federal or State Courts May Make the Hague Determination The Marren and Page Case List Murphy v Murphy Harris v Harris Peavey v Peav Introduction to Nevada Divorce Law Divorcing the Military and Serving the Civil Service Section II Subsection Rivero State Bar Amicus Brief Part One The Marren and Page Case List Jensen v Jensen and Sertic v Sertic The Marren and Page Case List Reel v Harrison Las Vegas FERS expert lawyer Thrift Savings Plan for Military Members Military Reservists Public Employees Retirement System PERS Benefits Section I Subsection B Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Child Custody Modification Jurisdiction The Marren and Page Case List Reed v Reed and Kennedy v Kennedy Rivero State Bar Amicus Brief Part One A In Search of a Theoretical Model for Alimony CONCLUSION Teuton Amicus Brief The Marren and Page Case List Nixon v Brown and Schmanski v Schmanski Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Either Federal or State Courts May Make the Hague Determination available at lvfamilylawyer.com by clicking above. Site Map Military Retired Pay and the Danger of REDUX Child Custody Jurisdiction in Nevada Ogawa Amicus Brief Governing Law and Analysis Carson City civil service retirement lawyer Rivero v Rivero Opinion Pickerings Conclusion Divison of Military Retirement Benefits In Divorce Section C The Marren and Page Case List Sogg v Nevada State Bank Fick v Fick Dimick v |