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Exhibits on Rivero Section Four
Learn more about Exhibits on Rivero Section Four.
The fourth vThe special jurisdictional rules discussed above are applicable in partition cases. According to most courts that have ruled on the question, the jurisdictional test is to be applied in the present (i.e., when the current action is commenced) as opposed to considering what jurisdiction was established during the original divorce. Oddly, the federal courts have been willing to permit state-court long-arm jurisdiction where the states themselves find they cannot exercise it. B> At least nothing happened in the 2007 resetting of the presumptive maximums that made matters worse for children receiving support. But the entire episode provides an opportunity to think through why we do things the way we do things. 65279;After distinguishing the doctrine of equitable adoption as used in Frye for child support from its use in establishing legal custody, the Court reversed and held that "for purposes of determining legal parentage in a custody dispute between biological and nonbiological parents, Hermanson holds that NRS 126.051 is the applicable statute." Id. at 289. The spouse might be able to extend the period within which he or she can request a deemed election by returning to court after the divorce and obtaining an order stating that the spouse is to be deemed the SBP beneficiary. This is because the member is obliged to make the election "within one year after the date of the decree of divorce, dissolution, or annulment,"9 whereas the former spouse must make the request "within one year of the date of the court order or filing involved."10 1) In cases of shared physical custody, the adjusted basic child support obligation shall first be divided between the parents in proportion to their respective adjusted actual incomes. Virginia X SUP> While, of course, it is not certain that the proposed amendment will in fact be approved at the next election, this Court has traditionally given deference to the Legislature’s amendments to provisions that can be seen as seeking to clarify, rather than substantively amend, existing provisions that are arguably ambiguous, going so far as to hold that such technical corrective amendments are to be considered retroactively effective.12 The portion of the Senate Joint Resolution clarifying that "the next general election" means the next general election over 12 months in the future fits that definition. When the divorce occurs near 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 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 Supreme Court reversed. The Court began by reciting the Murphy standard. The Court noted that a district court’s custody decision will not be disturbed unless there has been a clear abuse of discretion citing to Primm v. Lopes, 109 Nev. 502, 504, 853 P.2d 103, 104 (1993). The Court further noted that it must be satisfied that the district court’s determination was made for appropriate reasons citing to Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993). The Court also noted that it would not set aside a district court’s factual determinations if they are supported by substantial evidence citing to Primm, 109 Nev. at 506, 853 P.2d at 105. The Court found that substantial evidence did not support the district court’s conclusion that the children’s welfare would be substantially enhanced by changing custody. The Court noted while it was probably not advisable to leave a child home alone who is nearly recovered from an illness, it concluded that a single incident was an insufficient basis on which to premise a change of custody under the second prong of the Murphy standard. The Court also noted that the father was an active involved parent, had a stable job, and was responsive to the children’s needs. The Court remanded for a reconsideration of the second prong of the Murphy standard. The fourth scenario imposes the SBP premium payment entirely on the member, by increasing the spousal share to 26.7380%.2 The former spouse remains over-secured, as above. The entire premium falls to the member, who still has the free survivorship on the spouse’s life. Shifting the premium in this way is analogous to making a spousal support award. The Court held that for a 12(b)(5) motion, all allegations were to be accepted as true and construed in favor of the plaintiff. A complaint should not be dismissed for failure to state a claim for relief unless it appeared beyond a doubt that the plaintiff could prove no set of facts which, if accepted by the trier of fact, would entitle relief being granted. Intentional misrepresentation requires the plaintiff to prove that defendant made false representation, with knowledge or belief of falseness, and intended to induce the plaintiff to act or refrain, and that plaintiff justifiably relied, and was damaged. Justifiable reliance requires that the false representation must have played a material and substantial part in leading the plaintiff to adopt a particular course. Questions of whether elements satisfied is generally one of fact. Misrepresentation may consist of representation misleading because it partially suppresses or conceals information. Integration and waiver clauses do not bar actions for misrepresentation. There was no evidence in the record that the wife made an independent investigation (which would have charged her with what reasonable diligence would have disclosed), but would not have prevented reliance where falsity not apparent from inspection, the plaintiff was not competent to judge facts without expert assistance, or defendant had superior knowledge. Whether the plaintiff made such an investigation was a question of fact. There was no duty to have made a reasonable investigation unless the recipient had information which would have served as a danger signal and a red light to any normal person of intelligence and experience. Here, there was no record of such information. And judges should consciously consider their jurisdiction to proceed before wading into the merits of cases, with sufficient knowledge of the jurisdictional rules both to understand what they should not do, and to ignore legally fatuous arguments based on indefensible attacks on their legitimate jurisdiction. If the agreed facts resolve a jurisdictional question, one way or another, the merits can be addressed; if not, the court should focus on convening such proceedings as are necessary to make the factual determinations that permit the jurisdictional call to be made promptly, economically, and correctly. The special jurisdictional rules discussed above are applicable in partition cases. According to most courts that have ruled on the question, the jurisdictional test is to be applied in the present (i.e., when the current action is commenced) as opposed to considering what jurisdiction was established during the original divorce. Oddly, the federal courts have been willing to permit state-court long-arm jurisdiction where the states themselves find they cannot exercise it. 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. There were some variations between what public agencies and private attorneys did that could create differences when interest was being calculated. For example, back in the days when URESA was the controlling interstate law (now replaced by UIFSA), one distinction between the District Attorneys’ and Family Courts’ methodologies was the proper first application of an incoming payment. The IV-D methodology required application of payments to present support first, but Nevada case law required application of payments to the oldest arrearage first.4 The legislative history of NRS 125.155, and the briefs, exhibit much confusion as to when, precisely, PERS participants are "eligible to retire." Most PERS participants are eligible for retirement at 65 with five years of service, or 60 with ten years of service, or any age with 30 years of service.1 Certain employees operate under separate rules, however. Police and fire-fighters also can retire at age 65 with five years of service, but they become eligible to retire at age 55 with ten years of service, or age 50 with 20 years of service, or at any age with 25 years of service.2 Members convinced of the righteousness of their cause continue to file such actions, sometimes as a class. The results have continued to be consistent. Obviously, either approach could be better, or worse, for either party, depending on how much time passes, and whether the account balance increases or decreases during that time. But in either case, it should be dealt with one way or the other in the decree (preferably) and in the order dividing the plan benefits (definitely) to avoid what could be considerable litigation as to which possible way to divide benefits was impliedly intended to be done. Third is the "One Family, One Court Rule." In 1999, the Nevada Legislature enacted AB 154, and amended NRS 3.025 and NRS 3.223 to resolve any perceived conflict, by providing that a matter previously decided as a domestic relations case is required to be assigned to the same court where the case originated. 1) Combine the adjusted gross incomes of the parents and determine the base combined child support obligation using the base combined child support obligation table. 2) Any property placed in joint tenancy by the parties on or after July 1, 1979, as appears just and equitable, having regard to the respective merits of the parties and to the condition in which they will be left by the divorce, and to the party through whom the property was acquired, and to the burdens, if any, imposed upon it, for the benefit of the children. For example, when community funds are the source for the purchase of property, the naked form of title to the purchased property as the sole and separate property of one spouse, standing alone without supporting evidence, has been held to not be "the clear and certain proof required to overcome the presumption of community property."9 By contrast, the fact that title to all the real property of a couple was put by them in joint tenancy was considered "the clear and certain proof needed to overcome the presumption that it was community property."10 UP> The Office of Personnel Management ("OPM") Handbook for Attorneys includes a model paragraph entitled "Protecting a former spouse entitled to military retired pay" (paragraph 111). It reads: Nevertheless, the Nevada child support guidelines were derived from the Wisconsin Guidelines: making Nevada one of half a dozen "percentage of income" guideline States." This l See 1985 Report at 36. 2 See family Support Act of 1988, Pub. Law No. 100-485, 102 Stat. 2343 (October 13. 1988). The law essentially required every State to adopt some SOli of child support guideline. J See Dodson, A Guide to the Guidelines, Family Advocate 4, 6 Spring 1988 (reprinted in 1989 legislative history of A.B. 85 at 1064). 4 See 1989 Legislative History of A.B. 85 at 222-246. The Arizona Court of Appeals was more direct in In re Gaddis,4 when it held that divorce courts were only required to find reductions in military pay benefitting the member to bar compensation to the spouse if those reductions in retired pay existed when the award to the former spouse was made. The court saw the proscription of Mansell - that the USFSPA "does not grant state courts the power to treat as property divisible upon divorce military retired pay that has been waived to receive veterans’ disability payments" - as a call to essentially take a snapshot when the award to the spouse is made. If sums of disposable retired pay had been waived up to that point, they were not divisible. Where a member sought a post-divorce reduction in retired pay, however, his efforts at re-characterization were seen as attempting a "de facto modification" of a final property award, which state law did not permit.5 Western States Constr., Inc. v. Michoff, 108 Nev. 931, 840 P.2d 1220 (1992)The Court held that unmarried cohabitating adults may agree to hold property that they acquire as though it were community property. The agreement may be express or implied. The Court noted that district courts must protect the reasonable expectations of unmarried cohabitants with respect to transactions concerning their property rights. The Court reaffirmed the rule in Hay v. Hay, 100 Nev. 196, 678 P.2d 672 (1984), that unmarried cohabitants will not be denied access to the courts to make property claims against each other merely because they were not married. Courts nationally have reached the same conclusion, in various language, finding that in the absence of a clause in the decree stating something that could be interpreted as "treating" the un-mentioned asset, military retirement benefits omitted from pre-McCarty decrees simply cannot be partitioned, whether or not state law provides an "automatic" reservation provision for omitted assets.2 bsp; Under a legal doctrine known as "divisible divorce" recognized by the United States Supreme Court in the 1940’s, a court might be able to resolve some but not all incidents of a divorce; therefore, the specific rules going to jurisdiction to decide issues of child custody, alimony, child support, etc., must be dealt with. The qualifications for admission are sufficiently exacting that when the Board of Governors of the State Bar of Nevada approved Standards for Certification of Family Law Specialists in February, 2005, it recognized the existing Nevada Fellows of the AAML as certified specialists. This created a group able to draft standards and create a specialist certification test for other family law practitioners in Nevada. There has never been a case, apparently, in which a court has ordered a bond to secure payment of a spousal share ordered not paid at eligibility, in accordance with NRS 125.155(2)(a). It is difficult to conceive how such an order might work, as such a bond would require a dollar sum certain to secure an unknown future performance to begin on an unknown future date. SUP> There is no published Nevada case squarely addressing the question of whether one party can take advantage of the delay between trial and entry of judgment to assert that the other party (presumably working for a living) is accruing "unadjudicated assets" (or paying down debt) during that pendency which are then subject to further proceedings or division. Saying "no" to that question has been the uniform result in all known Nevada cases, and appears to be the consensus in published cases from other jurisdictions, reflecting a policy choice of encouraging promptness rather than delay.8 The Supreme Court held that it was error for the district court not to provide any basis for its calculation of child support and error not to set forth findings of fact to justify a deviation from the statutory amount. Any deviation must be based upon NRS 125B.080. The third trend of concern is attorneys in this town using paralegals who change firms as resources for confidential information obtained during previous employment. But that unethical practice requires sufficient attention that it will be the subject of a separate future Legal Note. You can find Exhibits on Rivero Section Four Rivero State Bar Amicus Brief Part One Subsection I Withdrawal and Borrowing of Money from the TSP The Marren and Page Case List Weeks v Weeks and Graham v Graham Rivero State Bar Amicus Brief Discussion Divison of Military Retirement Benefits In Divorce Section III Subsection A Introduction to Nevada alimony and spousal support law Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar The Marren and Page Case List Kelly v Kelly Todkill v Todkill Peters v Pete Interactions Between Military and Civil Service Retirements Divorcing the Military and Serving the Civil Service Section I Subsection B CONCLUSION Child Custody Jurisdiction in Nevada Family Law and Contingency Fees Time to Reconsider Section I Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar The Marren and Page Case List Abell v Second Judicial District Court Cole v Elko divorce family law expert The Marren and Page Case List Voorhees v Spencer Divison of Military Retirement Benefits In Divorce Section C The Special Problem of Divorce Decrees Entered in Foreign Countries as to D The Marren and Page Case List McGlone v McGlone Hesse v Andurst Litz v Benn Exhibits on Rivero Section Four available at lvfamilylawyer.com by clicking above. 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