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Courts were often most forceful where the member chose to take the substitute benefit after the divorce decree (which, of course, therefore did not mention the benefit). In In re Crawford, the court specifically quoted and analogized to In re Marriage of Strassner, which addressed disability benefits. The Arizona court held that in both situations, the spousal interest was "finally determined" on the date of the decree, and the member would not be permitted to effectively make the spouse¡¯s property his own merely by recharacterizing it in some way. The court explicitly held that enforcing divorce decrees by ordering that the spouse receive a portion of the benefit taken by the member in lieu of the regular retirement did not violate Mansell. 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" 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. The parties married in 1984; in 1994, the wife filed for divorce, seeking over $2 million in damages for a loan transaction and stock purchase agreement. The husband ignored discovery commissioner and district court discovery orders, and was monetarily sanctioned. The Supreme Court noted that in response to requests for "particular indexed documents," husband "often produced a mass of seemingly irrelevant and unidentified documents." After a year of futile discovery efforts, the district court struck husband’s answer and defaulted him. Prior to prove-up on damages, the district court ratified the parties’ stipulation regarding husband’s participation which was that his attorney would be able to cross-examine wife’s witnesses, but not present any evidence. District court granted wife’s motion to amend pleadings to conform to the evidence, and ultimately awarded wife over two million for repayment of the loan, and granted her a divorce. The husband appealed. The parties were divorced in Indiana in 1968, and had five children together. The father was ordered to pay child support in the sum of $175 per week. The father defaulted and in 1980, the wife obtained a judgment from Indiana awarding her approximately $90,000 support arrears and $2,260 in attorney fees. The mother then recorded the judgment in Clark County district court, and the father was given notice of the judgment. The father failed to pay any amount of the judgment. The wife then began a lengthy series of attempts to secure payment, with the father doing what he could to avoid making payment. After the trust the father attempted to place his home into was set aside, he filed a homestead exemption. The wife then moved to have the homestead exemption declared inapplicable to her judgment, primarily contending that public policy required an exception to the homestead laws in cases where a party was seeking to enforce a child support award. The district court denied the motion, concluding that the father could use the homestead exemption to prevent the mother from executing on his home. The Court went on: "Further, they cannot be given any consideration in ´offsetting’ one spouse’s community property interest in the other spouse’s retirement benefits."24 The Court rejected the trial court’s denial that the reduced monthly payments to the wife were an offset for the social security benefits: Even the court's list of general "factors to be considered" has varied wildly and without explanation. For many years, the court referenced a list of factors it posited in Buchanan v. Buchanan, 90 Nev. 209, 523 P2d 1 (1974), periodically reversing decisions when it a failure of a district court to "adequately consider" those factors. See Forrest v. Forrest, 99 Nev. 602, 606, 668 P2d 275, 278 If the marriage overlapped service by less than ten years, the right still exists, but the spouse has to obtain the monthly payments from the retired member rather than directly from the military pay center. The parties maintained their marital residence in Lake Tahoe, California, from April 1947, to March 1965. They separated and the husband moved to Nevada. In May of the following year, 1966, the husband filed a complaint for Divorce in Nevada. The wife then filed in California and, on December 6, 1966, was awarded an interlocutory judgment of divorce, certain property located in California, and $300 a month in alimony. In the California case personal service of process was made upon the husband at his residence in Reno, Nevada. In January 1967 the wife appeared in the Nevada case asserting that the California interlocutory judgment was entitled to full faith in Nevada with regard to alimony and property, and thereafter filed a motion for partial summary judgment with respect to those issues. Her motion was granted. Proponents asserted that there was a value of establishing some level of consistency between case and departments, and predictability in any give] case, because litigation of the "What the heck, giv. it a try" variety could be reduced - on both sides - j there was some kind of objective methodology for establishing a presumptive spousal support award that could then be varied (up or down) in accordance with the particular facts of the case. Critics protested that any such approach "eliminates judicial independence" or "hinders good lawyering" - the same sort of complaints that were heard when the concept of child support guidelines were first proposed. Primary physical custody arrangements may encompass a wide array of -circumstances, As discussed above, if a parent has physical custody less than 40 percent of the time, then that parent has visitation rights and the other parent has primary physical custody. Likewise, a primary physical custody arrangement could also encompass a situation where one party has primary physical custody and the other party has limited or no visitation. See Metz, 120 Nev. at 788-89, 101 P.3d at 781 (describing a primary physical custody situation where the nonprimary physical custodian had visitation every other weekend). Depending on the letters used in the alphabet soup, enforcing the divorce decree’s allocation of retirement benefits to the spouse may - or may not - require litigation. Previously, the rule was that if the survivor remarried, DIC payments were permanently terminated,6 even if the second marriage ended by death or divorce.7 However, a rule effective December 16, 2003, permitted former spouses receiving DIC to retain the benefits despite their remarriage - so long as they were at least 57 years old at the time of remarriage. Those that remarried, over 57 years old but prior to December 16, 2003, could have their DIC benefits restored, so long as they applied for it by December 15, 2004. SPAN> Miller v. Wilfong, 119 P. 3d 727, 121 Nev. Adv. Rep. 61 (September 22, 2005) The parties dated, but never married. They had a child together. After the child was born, the father filed a petition to determine paternity. The father served the petition on the mother after the welfare office sought to recoup funds given to the mother from the father. The father also sought joint physical custody. Pro bono counsel represented the mother, and the father appeared in proper person, but he later obtained counsel. The district court awarded the parties joint legal custody and awarded the mother primary physical custody and child support. The district court also awarded the mother’s attorney $3,000 in attorney fees pursuant to Sargeant v. Sargeant, 88 Nev. 223, 495 P.2d 618 (1972). Courts were often most forceful where the member chose to take the substitute benefit after the divorce decree (which, of course, therefore did not mention the benefit). In In re Crawford, the court specifically quoted and analogized to In re Marriage of Strassner, which addressed disability benefits. The Arizona court held that in both situations, the spousal interest was "finally determined" on the date of the decree, and the member would not be permitted to effectively make the spouse¡¯s property his own merely by recharacterizing it in some way. The court explicitly held that enforcing divorce decrees by ordering that the spouse receive a portion of the benefit taken by the member in lieu of the regular retirement did not violate Mansell. The parties divorced in 1985. The former husband never paid money judgment or alimony to former wife as ordered. The former husband’s mother set up trust, worth two million dollars, bought and allowed the former husband to live in a condominium, bought the former husband a car, etc. The district court ordered the former husband imprisoned and allowed former wife to execute against condominium and car. One court that did explain why it was ruling as it did was the Colorado Court of Appeals, in In re Marriage of Payne.1 The court held that ordering the member to pay for the wife’s SBP gave the wife a right already enjoyed by husband, that is "the right to receive her share of the marital property awarded to her." The court adopted the "default" position for distribution of the premiums (discussed in the next section), observing that: The case was a habeas corpus proceeding. The writ was denied. The child in question was turned over to a childless couple who raised the child as their own. The couple claimed rights to the child by virtue of an oral agreement, made with the child’s father, when the child was 5 or 6 years old. The agreement was acted upon for nearly ten years. The Supreme Court held that agreements as to who will have care and custody of a child should be upheld so long as they are not detrimental to the child. The Court stated, Mansell v. Mansell1 was yet another case coming out of California. When the parties divorced, the McCarty decision had not yet issued; the member had retired, and applied for and received disability benefits. The divorce decree included the stipulation that the parties would divide the gross sum of retirement benefits (including both retired pay and disability pay). SUP> The Braddock rule is best perceived as akin to an affirmative defense, in that if the matter is not raised by the party seeking an advantage under the law of some other State where the asset accrued, Nevada’s community property law will apply by default.5 Accordingly, it is to the permissibility of ordering the requested "provisional remedy" (the requested pick-up order) under _________ law that we next turn. In a few places, however, cases indicate that a service member may "un-consent" to court jurisdiction over the retirement issue alone. Except in those locations, there generally is not a jurisdictional issue in dealing with the retirement benefits in the divorce action so long as the member is the plaintiff - or a defendant who does not raise the issue. B> A division of the benefit "in-kind," also called an "if, as, and when" division, maybe 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. 4. Multiply the amount determined for each parent under subd. 3. by the proportion of the time that the child spends with the other parent to determine each parent's child support obligation. ppose a couple who have been married for the entire military career. Using artificial numbers, if the retirement was exactly $1,000, each party would receive $500. If there was no SBP, if the member dies, the spouse would receive nothing thereafter. If the spouse dies, though, the member would receives his $500 and her $500 - a total of $1,000 for life. This would clearly be inequitable result in any property division scheme requiring an equal division of property upon divorce. 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),5 or beneficiary status under the Survivor’s Benefit Plan, discussed above.

You can find Elko divorce family law expert Pre-Mansell and Post-Mansell Decrees Overview of Disability Benefits in the Military Retirement System The Marren and Page Case List Breedlove v Breedlove The Marren and Page Case List Finley v Finley The Marren and Page Case List Langevin v York The Marren and Page Case List Peterson v Peterson The Marren and Page Case List Cord v Neuhoff Elko child support expert The Marren and Page Case List Foster v Marshman The Marren and Page Case List Gilman v Gilman In Search of a Coherent Theoretical Model for Alimony Section I The Marren and Page Case List Steward v Steward and Wallace v Wallace The Marren and Page Case List Lindsay v Lindsay Murphy v Murphy Divorcing the Military and Serving the Civil Service Section II Subsection Whether the Removal or Retention was Wrongful Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Elko divorce family law expert available at lvfamilylawyer.com by clicking above.

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