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Exhibits on Rivero Exhibit Four A
Learn more about Exhibits on Rivero Exhibit Four A.
Child support calculation Hypothetical Number TwoIn other contexts, this Court has held that a legislative failure to address this Court¡¯s construction of a legal term constitutes "legislative adoption" of the Court¡¯s rulings.2 The Sertic and Wolff opinions include directions to the district courts, respectively, that "While no method is perfect, the advantages of the ¡®time rule¡¯ clearly outweigh any other method of pension division," and that "the ¡®equal distribution¡¯ presumption governing Nevada¡¯s community property laws" require application of the time rule. And the Legislature has not disturbed either holding in the past five sessions. Option C provides coverage so that payments begin immediately after the retiree dies, regardless of age. Benefits are actuarially reduced from the sum provided in Option A. The court may consider the amount of time that the parent spends with the child. If the child spends 35% or more of the child's time with the parent not having primary residency, the court shall determine whether an adjustment in child support is appropriate. In calculating the parenting time adjustment, the child's time at school or in day care shall not be considered. To assist the court, the following table may be used to calculate the amount os parenting time adjustment. The adjustment percentage should be averaged if there is more than one child and if the percentages are not the same for each child. The Basic Child Support Obligation (line 0.9) is then multipied by the appropriate Parenting Time Adjustment Percentage using the following table. The Parenting Time Adjustment Percentage and the amount is entered on Line E.2. 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"5 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 61.6 Congress was concerned that a forum-shopping spouse might go to a State with which the member had a very tenuous connection and force defense of a claim to the benefits at such a location. In August, the district court conducted a three-day hearing and found that the woman’s testimony "was motivated by animus toward [the man] and that [the man’s] testimony was credible." Finding that the son called the man "daddy," the lower court found the woman’s corrections of the child to be "further indicia of both [the woman’s] animus and of [the man’s] position as a father." The district court found that the man had "equitably and constructively adopted" the son, supporting this decision by a finding that the man had placed himself in loco parentis and that it would be "devastating" to the son to have the man treat him any differently than the daughter. Normally, when parents live in different places, child support is set in accordance with the law of the residence of the obligor.4 But a military member may have an anomalous status under the Uniform Interstate Family Support Act; if the member maintains his residence or domicile elsewhere than where he is stationed, that State might maintain exclusive modification jurisdiction, and the law of that State might control child support awards and modifications.5 The first "break in the dam" was the modest "combat-related special compensation" or "CRSC," pay put in the 2003 Defense Authorization Act. It granted an additional payment to two (relatively small)2 categories of retirees: those with 20 or more years of service who were receiving disability compensation for which they also received a Purple Heart medal; and those with 20 or more years of service who were receiving disability compensation rated at 60% or higher as a result of injuries suffered in combat or "combat-like" training.3 Most reviewing courts have either found or simply assumed that Mansell is applicable in litigation concerning post-divorce recharacterizations by retirees, and attempted to apply it to resolve the cases before them. Nevertheless, those appellate courts have almost uniformly reached the same ultimate destination as the court in Krempin, by means of a longer analysis. 1) "Shared physical custody" means that each parent keeps the child or children overnight for more than 35% of the year and that both parents contribute to the expenses of the child or children in addition to the payment of child support. One portion of the case law is apparently unanimous. A comprehensive review of the cases throughout the United States reveals that there is no legitimate authority for the proposition that where the divorce decree preceded Mansell, there can ever be a waiver of retired pay by the retiree in favor of VA disability benefits without compensation being required to be paid to the former spouse, dollar for dollar, as to all sums the retiree's actions caused to be diverted from her back to him. This is where the complications and illogic come in. Presume three identical divorces on the same day. In the first case, the attorney, who knew almost nothing about military retirement benefits law, did not even know there was an SBP to allocate. The second knew that something had to be done, and so put a statement in the Order verifying that the former spouse was to be the beneficiary. The third not only knew to secure the right, but knew about the deemed election procedure, sent the required notice in, etc. The problem with such a resolution is that it leaves all parties uncertain as to their rights and obligations throughout the case, determining the value of the work by the retrospective opinion of strangers to the original agreement. If such factors are to be legitimately considered, as apparently they can, then persons should be able to contract relating to them with specificity as to the amount that would be owed based on a particular result achieved, before the fact. PAN style="FONT-FAMILY: Times New Roman; FONT-SIZE: 14pt"> In post-Mansell divorces, the same result has sometimes resulted from different logic. "Safeguard" clauses and "indemnification for reduction" clauses are permissible, and have the result of protecting spouses from the members’ unilateral recharacterization of benefits. The theory is essentially that of constructive trust; once the divorce goes through, the retirement money is considered no longer the member’s property to convert. See Johnson v. Johnson, 37 S.W.3d 892 (Tenn. 2001); In Re Marriage of Harris, 991 P.2d 262 (Ariz. 1999); In re Strassner, 895 S.W.2d 614 (Mo. Ct. App.1995); see also Owen v. Owen, 419 S.E.2d 267 (Va. Ct. App. 1992); Dexter v. Dexter, 661 A.2d 171 (Md. App. 1995); McHugh v. McHugh, 861 P.2d 113 (Idaho Ct. App. 1993). The district court held that the social security benefits received could be applied to pay child support arrears and that the mother had already received more than the obligation owed by the father, and that to allow collection of the arrears under these circumstances would constitute an inequitable "double enrichment." The district court terminated the father’s obligation for so long as the mother continued to receive social security disability benefits for the child in excess of what the father owed. iii) Third, the amount of the BCSO is subtracted from the adjusted BCSO. The difference is the child-rearing expenses associated with the ARP's additional parenting time. In the example above, the additional childrearing expenses associated with the ninety-four (94) days of parenting time would be thirty dollars and fourteen cents ($30.14) [$1030.14 - $1000]. A member declaring bankruptcy does not lose the right to receive future retired pay based upon prior or future military service. In cases decided prior to enactment of the USFSPA, an order to pay a portion of retired pay to a former spouse (or a sum of money in lieu of such a portion) was often considered a "debt" dischargeable in bankruptcy rather than a property interest. Since enactment of the USFSP A, courts have generally held awards to former spouses of a portion of military retired pay to be non-dischargeable. P> There are several possible complications beyond the scope of this paper that can arise once the parent-child relationship and law of the habitual residence are known.5 In the majority of cases, however, the issue will be a simple one. The next general election means the next general election at which, in pursuance of law, a vacancy may legally be filled. Under all of the authorities called to our attention dealing with the subject, it is held that this does not necessarily mean the next ensuing general election, but the election at which the vacancy can be legally filled. State v. Superior Court, 140 Wash. 636, 250 P. 66; State v. Simon, 20 Or. 365, 26 P. 170; Sawyer v. Haydon, 1 Nev. 75; State v. Jepsen,. 48 Nev. 64, 227 P. 588; State v. Minor, 105 Neb. 228, 180 N.W. 84. An example might prove useful to illustrate this discussion. Presume a worker who was employed for exactly 20 years, and was married to wife one for the first ten, and wife two for the next ten, retiring on the day of divorce from wife two. Presume he had started work at $20,000 per year, and had enjoyed 5% raises every year. That would make his historical earnings look like this: Evaluation of Child Supporl Guidelines, Volume I at 3-39 (1996). Because of the need to make some kind of adjustment for shared custody, the various support guidelines in the United States have incorporated provisions that make such an adjustment, but the guidelines vary considerably in how that adjustment is calculated. The Court held that whether a party is entitled to interest on unpaid support payments due under a decree is governed by the law of the state where the decree was rendered. The Court noted that in California, a divorced spouse is entitled to interest at the legal rate arrears which have accrue. The Court held that the district court erred by not including interest on the unpaid payments, from the date each payment was due, as part of the judgment for arrears. The judgment for arrears was reversed and remanded for calculation and inclusion of interest on the unpaid arrears. As in other subjects discussed above, the cases fit into a few separate categories, depending on the order and timing of the disability, retirement, and divorce. For the purpose of this discussion, we will focus solely on the category that has produced the bulk of the litigation, and authority in the field - where members waived at least someregular, longevity retired pay in favor of VA benefits, afterthe parties to the case divorced. In other contexts, this Court has held that a legislative failure to address this Court¡¯s construction of a legal term constitutes "legislative adoption" of the Court¡¯s rulings.2 The Sertic and Wolff opinions include directions to the district courts, respectively, that "While no method is perfect, the advantages of the ¡®time rule¡¯ clearly outweigh any other method of pension division," and that "the ¡®equal distribution¡¯ presumption governing Nevada¡¯s community property laws" require application of the time rule. And the Legislature has not disturbed either holding in the past five sessions. There is a question whether the "broad discretion" accorded to trial courts in making property distributions under the pre-1993 law has been changed in any meaningful way by the change from "equitable" to "presumptively equal" division. The matter could probably be argued either way. There is plenty of authority for the proposition that the legislative change reduced the scope of judicial discretion to make unequal distributions, since legislative enactments are to be construed so that "no part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly be avoided."6 On the other hand, the new statutory construction still appears to be leave plenty of wiggle room. The husband died on May 21, 1976. His ex-wife survived him by only a few minutes. The husband’s brother, the contingent beneficiary of an insurance policy on his life, sued the administrator of the ex-wife’s estate, to recover proceeds received pursuant to the policy. The brother contended that a provision of a divorce decree terminated ex-wife’s interest as named beneficiary, even though the husband had taken no steps to remove her as the policy’s named beneficiary. The district court awarded the proceeds to the ex-wife’s estate. Previously, SBP payments were reduced for a beneficiary who was 62 or older, although an expensive supplement was developed which, if purchased, eliminated the reduction.3 Continued political pressure resulted in elimination of the Social Security offset, phased in over three and a half years starting in October, 2005, and ending April, 2008.4 The SSBP premiums were phased out; at the end of the adjustment period, all SBP recipients should receive 55% of the base amount indefinitely, regardless of age. Normally, in such cases, courts are keen to determine whether the former spouse or the later-acquired spouse has the larger legitimate interest to protect. This is a simple matter of comparing the marriage/service overlap of each spouse - exactly the same analysis as is done in determining the "time rule" percentage of the retirement that would be allocated to each successive spouse. If a full withdrawal is desired, the default is for the funding of a joint and survivor annuity with the "survivor" being the spouse at the time of withdrawal. The default annuity funded pays a 50 percent survivor benefit, has level payments, and does not include a cash refund feature. If the participant chooses any full withdrawal method other than the default ("prescribed") annuity, the spouse must make a written, notarized waiver of his or her right to the prescribed annuity.1 It is also possible in some circumstances to obtain a joint life annuity with someone other than the spouse.2 The Supreme Court rejected the father’s petition as well. The Court noted that in McGlone v. McGlone, 86 Nev. 14, 464 P.2d 27 (1970), that a fit parent is to be preferred over nonparents in child custody cases and that custody may not be given to a nonparent unless the parent is found to be unfit. The Court concluded that the presumption of parental preference as a matter of law had been overcome. The Court found that the father’s attitude and conduct was one of callous indifference and abandonment. The Court found that the record presented conclusive evidence of husband’s unfitness. The Court noted that the best interests of the children were paramount citing to NRS 125.140; Cooley v. Cooley, 86 Nev.220, 467 P.2d 103 (1970); Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969); Timney v. Timney, 76 Nev. 230, 351 P.2d 611 (1960) and that those interests would best be served by placing the care and custody of the two children with their grandparents. The Supreme Court affirmed. The Court noted that it had required district courts to utilize either the Van Camp or Pereira apportionment methods in classifying separate property businesses citing to Wells v. Bank of Nevada, 90 Nev. 192, 194, 522 P.2d 1014, 1016 (1974). However, the Court held even if the district court erred by failing to apply one of the two apportionment methods, the husband failed to establish that such error was prejudicial s the husband provided no evidence to contradict the district court’s determination that the business and business goodwill were entirely community property and therefore, no issue of apportionment of separate and community shares in the medical practice arose. The Court noted the only question facing the district court was one of valuation. The Court concluded that the district court’s finding that the vast bulk of value of the practice consisted of good will was sound. The Court held that in valuing the business goodwill, the district court was free to use any legitimate method of valuation which measures the present value of good will by taking into account past earnings citing to Ford v. Ford, 105 Nev. 672, 680, 782 P.2d 1304, 1309 (1989). The Court concluded that the district court’s valuation of good will was well within the range of valuations offered at trial, and the valuations were properly reached by methods which took into account past earnings. 2. A parenting time adjustment shall be made to the base monthly child support obligation by the following formula: The total combined base monthly child support obligation shall be multiplied by a factor determined by the number of overnights granted to the noncustodial parent. The result shall be designated the adjusted combined child support obligation. In a case where the noncustodial parent is granted: After reviewing the standard on statutory interpretation that "words in a statute should be given their plain meaning unless it violates the spirit of the law," the Court expressly overturned the Champagne strict adherence to a finding a parental fault to terminate parental rights before the district court considers the best interes ts of the child. The Court then held that the new standard was a best interests/parental fault standard. The evidentiary standard the Court set out was that the best interests of the child and parental fault must be shown by clear and convincing evidence. In deciding whether or not to terminate parental rights the Court concluded required a weighing the interests of the children and the interests of the parents. By treating the "career asset" as just one more thing to divide, alimony can be analyzed almost as readily as property. Looked at this way, any alimony award outliving the income stream thrown off by the career would not be compensatory to the former spouse, but a transfer of wealth from one party's separate property to that of the other. Where the property accrued during the marriage is divided, presumably equally, alimony awards reaching beyond the exhaustion of the career asset can be seen as unfair. 65279;In the cases cited above, and others, the post-divorce disability award sought and awarded to the retiree was not allowed to block the spouse's right to continued payments under the terms of the decree. Even if Mansell does have to be considered in post-divorce recharacterization cases, courts have mandated that former spouses must be compensated, by awards of other property, or alimony, or (most commonly) dollar-for-dollar compensation of all amounts that would have been paid but for the recharacterization. You can find Exhibits on Rivero Exhibit Four A Rivero v Rivero Section VI A Las Vegas Marshall Willick Family Law and Contingency Fees Time to Reconsider Section III Divorcing the Military and Serving the Civil Service Section II Subsection Public Employees Retirement System PERS Benefits Section III Subsection C Las Vegas FERS law expert The Marren and Page Case List Whise v Whise Fleming v Fleming Presson v Pre An Introduction to Pensions in Nevada Divorce Law Section I Subsection B The Marren and Page Case List Lemkuil v Lemkuil The Marren and Page Case List In re Swall Welfares Flawed Analogy The Marren and Page Case List Vincent L G v State Divorce of Child and Fami Updates on Prior Notes Military Retirement Benefits Component of a Civil Service Retirement Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar The Marren and Page Case List Rush v Rush Gilbert v Warren Rivero State Bar Amicus Brief Part Two Death of Spouse The Marren and Page Case List Rosenbaum v Rosenbaum and Minnear v Minnear The Marren and Page Case List Wolford v Wolford CONCLUSION The Basics of Jurisdiction A Remedial Course Exhibits on Rivero Exhibit Four A available at lvfamilylawyer.com by clicking above. 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