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In Torwich (Abrom) v. Torwich,3 the court found the reduction of payments to the spouse to be an "exceptional and compelling circumstance" allowing redistribution of marital property four years after the divorce, despite the existence of procedural rules normally barring such redistributions of property. This case has been relied upon for the proposition that Mansell permits "other adjustments to be made" to take into account the reduction in a spousal share from the disability claim of a member, so as to prevent the inequity that would occur if a member was permitted to redirect money from the former spouse back to himself, without some form of compensation.4 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. In light of that case, the Bar should have responded proactively on this matter half a year ago, streamlining the fee dispute resolution mechanism and making it more widely, easily, and quickly available to both clients and attorneys. This is not a matter that must be studied, thought about, sent to a commission or otherwise dawdled regarding. It is an immediate problem that can, and should, be solved ¨C now. We are increasingly troubled by the trend of parties to leave divorce court with an agreement that settles property and alimony matters, only to immediately walk down the street to the federal courthouse and attempt to relitigate those issues. Such actions call into question the good faith of the parties and their counsel and raise thorny issues of comity and finality of judgments, to say nothing of attempting to make the bankruptcy court into some type of appellate divorce court. We do not think Congress intended this result when it enacted § 523(a)(5). While we recognize that certain marital debts and obligations are and should be dischargeable, we do not believe that § 523(a)(5) gives one spouse carte blanche to retain marital property at the other spouse’s expense. Whether or not another action has been filed elsewhere makes a difference. In a strictly default divorce situation when no other action is pending elsewhere, a Nevada court with jurisdiction over only one party can dissolve the marriage, but not adjudicate any rights as to alimony, child support, or child custody without obtaining personal jurisdiction over both parties.13 Technically, since the trial court lacks jurisdiction to adjudicate any issues other than status, those issues are thus "bifurcated," but no known case has denied a plaintiff a divorce on that basis. The Supreme Court reversed. The Court noted that the wife contented that the postnuptial agreement was an integrated agreement, incapable of severance, and that since the support provisions thereof were invalid, the entire agreement failed and could not be enforced in any respect. The agreement limited the husband’s support duty to the period of five years even though they continued living together as husband and wife. The Court held that such provision violated the statute was therefore void. It was unquestioned that the parties continued to live together as husband and wife until the husband’s death. The Court held that the entire integrated agreement must be annulled since a material part of it was illegal. Courts are to look at "residence" of the child when determining the actual custody arrangement that is in place, disregarding such things as time with third party care providers. 2) In the event of effective service of more than one court order which provides for payment to a spouse and one or more former spouses or to more than one former spouse the disposable retired pay of the member shall be used to satisfy (subject to the limitations of paragraph (1)) such court orders on a first-come, first served basis. Such court orders shall be satisfied (subject to the limitations of paragraph (1) out of that amount of disposable retired pay which remains after the satisfaction of all court orders which have been previously served. In Kentucky, the legislature decided in 2006 that any custodial change premised on member’s deployment or activation is only a temporary order which "reverts" to the prior order upon return of the member; the Kentucky Supreme Court apparently approves of the statute.5 Louisiana has enacted a "compensatory visitation" statute.6 California prohibits use of military activation and deployment out of state from being used against a member in a custody or visitation case.7 UP> PERS is mainly a "non-contributory" system. Certain workers have paid in to "member’s contribution" accounts from the days when PERS had employee as well as employer-paid funding. That amount is refundable in certain circumstances, and may be applied to the (divisible) retirement in others. In Torwich (Abrom) v. Torwich,3 the court found the reduction of payments to the spouse to be an "exceptional and compelling circumstance" allowing redistribution of marital property four years after the divorce, despite the existence of procedural rules normally barring such redistributions of property. This case has been relied upon for the proposition that Mansell permits "other adjustments to be made" to take into account the reduction in a spousal share from the disability claim of a member, so as to prevent the inequity that would occur if a member was permitted to redirect money from the former spouse back to himself, without some form of compensation.4 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. The parties divorced March 1924. The decree provided that the mother was to receive custody and that the father was to pay support of $1,200 per year in equal monthly installments per child. The father was to have visitation over the summer, one-half of all other times the children were not in school, and every other weekend. In February 1927, the father filed a motion asking the court to construe the decree as to whether he could deduct the cost of schooling from the support he was paying, and whether he could deduct the amount of expenses he actually paid for the children while they were in his custody. The motion also requested that if the court did not construe the decree as requested that his support obligation be modified so that he could deduct education expenses and expenses when the children were with him. The district court denied the father’s request as to education, but indicated that if the children lived with the father for six months, then the mother should be paying support for that time. The mother contended that the court was without jurisdiction to reduce the amount the father was paying. 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 following paragraph elects the Spouse as the irrevocable beneficiary of the Survivor's Benefit Plan benefits at a base amount sufficient to cover the spousal interest, but no more. 65279;Even greater differences between similarly situated individuals will result from the changes made in retirement formulas. Since only partial COLAs will accrue for those members who entered service on or after August I, 1986, and opted to take the REDUX plan, military retirement benefits appear to be somewhat less valuable for those who retire after August I, 2006. UP> This view of the time rule essentially provides to the former spouse an ever "smaller slice of a larger pie" by getting a shrinking percentage of a retirement that is increasing in size based upon post-divorce increases in the wage-earner¡¯s salary and years in service. It makes little sense for the law to protect the putative rights of those who do not even try to secure rights upon divorce, while denying any protection to those who believe they have already litigated and received a valid court order protecting those same rights, but that is the bottom line of the law as it now stands.24 Even the Department of Defense has recognized the unnecessarily harsh results that are produced by the current law,25 but Congress has not yet taken any action to correct the situation. Except in the extremely rare circumstance in which extraordinary changes in rank are anticipated, it would almost always be a mistake for a spouse to defer collection past first eligibility. When a member chooses to continue service after 20 years, if the spouse defers receipt of a share of the retirement until actual retirement, the ultimate collection by the spouse is typically decreased, actuarially.23 It is not necessary that the date of a certification of the authenticity or completeness of a copy of a court order for child support received by the Secretary concerned for the purposes of this section be recent in relation to the date of receipt by the Secretary. The "bottom line" to all of the cases addressing early retirement, late retirement, disability, partition, bankruptcy, and death benefits, is that it is incumbent upon the attorneys, especially the attorney for the spouse, to anticipate post-divorce status changes and build that anticipation into the decree. Any failure to do so is an invitation to further litigation in some forum, between the parties, or directed at the attorney. The parties were divorced in February 1977. A property settlement agreement was incorporated into the decree which distributed several parcels of real property and some personal property. As required, the husband executed several quit claim deeds to the wife. Several months after the entry of the decree, the parties reconciled, resumed cohabitation and held themselves out as husband and wife. They never remarried, but lived together until May 1979. In June 1979, the husband moved to modify the decree as it related to the division of the community property of the parties. The husband claimed there was an oral agreement that the wife would upon any subsequent separation, reconvey to him one-half of her real property. The request to modify was denied. You can find FERS expert lawyer Rivero State Bar Amicus Brief Part Two Love me Love My Dog Part two of two The Marren and Page Case List Abell v Second Judicial District Court Cole v The Marren and Page Case List Jones v Edwards The Marren and Page Case List Applebaum v Applebaum Las Vegas family law specialist Disability Benefits Introduction to Nevada alimony and spousal support law Death of Member After Retirement and Before Divorce Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Medical and Other Ancillary Military Benefits to Consider Rivero State Bar Amicus Brief CONCLUSION Nevada QDRO lawyer The Marren and Page Case List Milender v Marcum Cook v Cook and Guerin v Gu FERS expert lawyer available at lvfamilylawyer.com by clicking above. Site Map Las Vegas divorce law advocate Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar The Marren and Page Case List Wiese v Granata Concepts in the UCCJEA Divorcing the Military and Serving the Civil Service Section II Subsection Time to distinguish enterprise and personal goodwill Feral Paralegals |