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Exhibits on Rivero Exhibit One
Learn more about Exhibits on Rivero Exhibit One.
FLSs Proposed Definitions of CustodyB> Casas v. Thompson1 was a clear restatement of the law regarding military retirement benefits division as it had evolved in California prior to 1988, which was followed by several other States. It was a partition case ten years after entry of a divorce decree that had not mentioned the retirement. Ultimately, the spouse was granted partition of the omitted retirement from the date she filed her petition, but no arrears. The Court of Appeals affirmed with a few modifications not important here.2 Matters are even worse outside the U.S. Where the member refuses to consent to service, all the procedures set out in the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents5 may come into play; the U.S. has been a signatory since February 10, 1969. As framed by the United States Department of State circular on the topic: The facts of the case drive a number of other factors that might be necessarily addressed in the order, including the possibility of an early or late retirement, or a disability or any other post-retirement reduction in benefits, and whether payments are to begin at eligibility for retirement, and are to be based on the rank and grade at the time of divorce, or at actual retirement. bsp; 2. The courts are empowered, but not required, to trace back to a separate property source contributions to property held in joint tenancy that came from a separate property source, and order reimbursement to the contributing spouse. If a future in-kind distribution of the retirement benefits is made, the same level of attention to detail should be given as if the distribution was immediate. Failure to do so enhances the chances of further litigation upon the member's eligibility. The simple failure of attorneys to think about deferred retirement issues at the time of divorce is the principal cause of post divorce pension litigation. Under the present law governing medical and other benefits for former spouses, there is no solution for this situation. It is something of a two-edged sword, however. A member negotiating for divorce could threaten to go out on TERA retirement, thus depriving a spouse of medical benefits. The spouse’s counter would be to ask the divorce court to hold the member responsible for whatever medical costs would have been free or covered if the member had completed the service term, arguing that the member’s choice unilaterally created the expenses and he should therefore bear the cost of it. Although NRS Chapter 125 does not contain a definition of joint physical custody, the legislative history regarding NRS 125.490 reveals the Legislature's understanding of its meaning. Joint physical custody is "[a]warding custody of the minor child or children to BOTH PARENTS and providing The Supreme Court reversed. If the disadvantaged party would have received more under community property laws, the agreement is presumed to be fraudulent. The presumption of fraud may be overcome by a finding of "no real disadvantage." The elements to consider are whether that party had ample opportunity to obtain independent advice of counsel, was not coerced into making rash decision by circumstances of signing agreement, had substantial business experience and acumen, and was aware of the financial resources of the other party and understood the rights being forfeited. B> If the facts establish that the State from which the child was removed or retained was the child¡¯s habitual residence, that the left-behind parent had a right of custody under the law of that State, and that the alleged abducting parent¡¯s continuing retention of the child violated those rights, the child¡¯s return can be requested under the Hague Convention, in order to re-establish the "status quo ante," and put the parties back into the state of affairs prior to the time of the wrongful retention. The Court noted that all property acquired after marriage is presumed to be community property and that the presumption could be rebutted with clear and convincing evidence and cited to Cord v. Cord, 98 Nev. 210, 644 P.2d 1026 (1982); Roggen v. Roggen, 96 Nev. 687, 615 P.2d 250 (1980) and NRS 123.220. The Court also noted that a valid deed which showed that title was held in joint tenancy was the clear and certain proof needed to overcome the community property presumption, and such a deed raised the rebuttable presumption that the property was in fact held in joint tenancy citing to Waldman v. Waldman, 97 Nev. 546, 635 P.2d 289 (1981); Neumann v. McMillan, 97 Nev. 340, 629 P.2d 1214 (1981) and Peters v. Peters, 92 Nev. 687, 557 P.2d 713 (1976). Until evidence was produced to the contrary, the house was to be considered as community. The case was remanded for a reconsideration as to the property’s character. As to the mobile home, the Court concluded that it was community property as well subject to division, and the fact parties separated did not end the community. The Court also concluded the husband’s retirement plan was community property and ordered that it be divided. In all domestic relations cases, traps abound relating to service of process.4 Where a member is located within the United States, the authorities controlling the installation will normally allow the member the choice The statute (10 U.S.C. § 1078a(g)(4)) provides that the continued coverage can continue beyond the "temporary" periods set out at the beginning of the statute, upon the request of a former spouse who makes a request for such coverage. The Supreme Court rejected the father's contention, of an equitable setoff noting that "[i]f by this [the father] means that he is entitled to deduct from his support payments, the amount of his expenditures while he is exercising his visitation rights, we cannot agree." Id. at 661. The Court also noted that there was no credible evidence of consent such as evidence showing that the other parent consented to a change in custody, an express agreement, or a compulsion of circumstances such as abandonment or mental or physical illness which could possibly excuse the father's conduct. Id. at 661. The Court held that, " ... absent credible evidence of an agreement between the parties to modify the terms of a support agreement, or compelling circumstances which require a change in custody, before judicial approval is sought, in the interest of the child, a parent making expenditures for a child of whom he does not have custody is not entitled to a setoff of those amounts against his support obligations." Id. at 661. The possibility of continued service by the member beyond the first eligibility date for retirement should be expressly contemplated on the face of every divorce decree dealing with a member who is still on active duty at the time of divorce. SUP> The rule is specific to domestic relations cases, and new, and likely to be tweaked and revised as experience is developed. There seems little doubt, however, that Nevada has elected to reward disclosure and punish attempted concealment of assets as a matter of policy, a welcome evolution in family law practice to the hopeful advantage of all honorable litigants.4 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 without compensation to the former spouse.1 from the child support guidelines were set out the statutes. The Court further noted that findings of fact must be made when there is a deviation. The Court additionally noted that the "´basis for deviation’ must be found in the unfairness, the injustice, which may result to the secondary custodian if he or she, after making substantial contribution of a financial or equivalent nature to the support of the child, were required to pay the full formula amount,’" citing to Barbagallo v. Barbagallo, 105 Nev. 546, 552, 779 P.2d 532, 536 (1989) (quoting NRS 125B.080(5)). Id. at 320. The Court cited extensively to Barbagallo and noted that courts should exercise considerable discretion before reducing the formula amounts, that as the secondary custodian’s expenses increase, the expenses of the primary custodian do not decrease, that the primary custodian is the one who has to pay many fixed expenses related to the children including rent, mortgage payments, utilities, car maintenance, and medical expenses, and that those expenses were not usually noticeably diminished because of the non-primary custodian sharing in some of those burdens. The Court concluded that the district court’s order did ". . . not adequately support a deviation from the statutory formula, and the district court’s failure to set forth findings of fact as to the basis for the deviatio constituted reversible error." Id. at 321. B> Casas v. Thompson1 was a clear restatement of the law regarding military retirement benefits division as it had evolved in California prior to 1988, which was followed by several other States. It was a partition case ten years after entry of a divorce decree that had not mentioned the retirement. Ultimately, the spouse was granted partition of the omitted retirement from the date she filed her petition, but no arrears. The Court of Appeals affirmed with a few modifications not important here.2 This is just one of the specific ways in which there is a conflict between the holdings of Gemma and Fondi on the one hand ("the employee spouse cannot by election defeat the nonemployee spouse’s interest in the community property by relying on a condition solely within the employee spouse’s control") and the 1988 holding in O'Hara on the other (the "community property interests of a nonemployee spouse do not limit the employee’s freedom to agree to terms of retirement benefits").30 You can find Exhibits on Rivero Exhibit One Las Vegas matrimonial law Public Employees Retirement System PERS Benefits Section III Subsection B C The Marren and Page Case List Woods v Bromley and Smolen v Smolen Exhibits on Rivero Exhibit Three Section Four Continued Divison of Military Retirement Benefits In Divorce Section V Subsection D The Marren and Page Case List Barbash v Barbash Spousal Support In Search of a Coherent Theoretical Model for Alimony Section I Divison of Military Retirement Benefits In Divorce Section V Subsection C Rivero v Rivero IV C The Marren and Page Case List Bopp v Lino Exhibits on Rivero Exhibit One available at lvfamilylawyer.com by clicking above. 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