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Distinguishing enterprise from personal goodwill in business valuations

The Supreme Court affirmed. The Court held that the constitutional power of decision vested in a court in child custody cases can be exercised only by the duly constituted judge, and that power may not be delegated to a master or other subordinate official of the court. The Court held that NRCP 53 did not purport to authorize the delegation to a master of the court’s power to adjudicate custody. If the money is paid to a third party, however, such as a child (or, presumably, either party’s attorney), the participant is stuck with the amount of the distribution as part of gross income for that year, and 10% is withheld. These rules provide a way of shifting the tax burden of funds to be withdrawn and used to pay attorney’s fees, just by changing the payee of the withdrawal. Finally, examine whether the member owns property in the jurisdiction. While not legally determinative of anything, the fact of whether a member has chosen to purchase real estate in the forum often is seen as having a strong correlation with whether the member treats the jurisdiction as "home." Retirement benefits are essentially a form of deferred reward for service, and so are generally divisible upon divorce, while disability benefits are conceptualized as compensation for future lost wages and opportunities because of disabilities suffered, and are thus typically not divisible or attachable. When accepting a disability award requires relinquishing a retirement benefit, the interests of the parties as to the proper characterization of the benefits become instantly polarized.1 In short, paying adequate attention to discerning and addressing retirement benefits is not only advisable, but necessary, for anyone practicing family law. After Congress enacted the USFSPA, the member returned to court seeking to modify the judgment to exclude the disability portion of the retired pay from division with his exspouse. The state court denied his request, holding the division of the disability portion of the military retired pay was proper. The member appealed. Article 3(b) of the Hague Convention provides that a removal or retention can only be considered wrongful if, "at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention." B> IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that [MEMBER] shall obtain a policy of life insurance on [MEMBER]’s life with [FORMER SPOUSE] as beneficiary and owner (or transfer an existing policy to such status) in a minimum amount of [APPROXIMATE PRESENT VALUE OF SPOUSAL INTEREST] and maintain such policy until the date on which [FORMER SPOUSE]’s interest in the retirement benefits set out above are fully secured by the putting into place of survivorship benefits fully protecting [FORMER SPOUSE]’s right to collect the sum specified above irrespective of [MEMBER]’s continued survival. The Air Force "expects" that its members will support their families, and will recoup BAH3 payments if it concludes that the member is receiving the "with-dependent" rate but not supporting dependents, but basically pushes the matter to the civilian courts.4 The Marine Corps is more specific, requiring its members to provide the greater of a specific sum per Profit or increase in value of property may result either from the capital investment itself, or from the labor, skill and industry of one or both spouses or from both the investment of separate property and the labor and skill of the parties. Where both factors contribute to the increase in value of a business, that increase should be apportioned between separate and community property. The rule we announce today is necessary in order to prevent the inherent injustice of denying the owner of separate property a reasonable return on the investment merely because the increase in value results "mainly" from the labor, skill or industry of one or both spouses. The decision in that case relied on the earlier decision of In re Marriage of Daniels,2 which held that to whatever degree direct enforcement of a divorce decree might be prevented by application of federal law, the member would receive any sums that had been awarded to the spouse as a resulting trustee of her funds, and must pay them over to her. The language quoted was the principle espoused earlier by the California Supreme Court in Gillmore3 - that one party should not be allowed to defeat the other’s interest in retirement benefits "by invoking a condition wholly within his or her control." The parties were married July 1934. In April 1963, the parties entered into a separation agreement in New York. The husband agreed to pay $225 per month for the wife’s support so long as she did not remarry, and $87.50 per month for the support of their two children. The agreement provided that if the husband failed to perform his obligation, the wife could sue for breach of the contract, or seek such other remedies in law or equity as might be available. The agreement also permitted either party to sue for absolute divorce in any competent jurisdiction, to require the agreement to be offered in evidence, and if accepted by the court, incorporated by reference in the decree. The agreement provided that notwithstanding incorporation of the agreement into the decree, it was not to be merged in the decree but was to survive and be enforceable as a contract binding upon the parties for all time. The Supreme Court reversed. The Court rejected the district court’s conclusion that the motion was untimely, and held that when such a motion is filed at any time within the six months allowed by NRCP 60(b), alleging fraud or mutual mistake, and seeks for the first time to address the fairness of the decree of divorce, the motion should be considered on its merits (i.e., the fairness of the distribution of property should be explicitly examined by the reviewing court). The Supreme Court affirmed. The Court held that the constitutional power of decision vested in a court in child custody cases can be exercised only by the duly constituted judge, and that power may not be delegated to a master or other subordinate official of the court. The Court held that NRCP 53 did not purport to authorize the delegation to a master of the court’s power to adjudicate custody. I suggest that the Nevada Supreme Court consider giving its family law staff attorneys a rotating series of sabbaticals from the Court to work in real-world law firms for a month or so at a time, to find out how family law really works. I will volunteer my office as one such place, where a staff attorney can come, attend meetings, go to court, actually work on substantive matters if desired, etc. 8) is incapable of self-support because of a mental or physical incapacity that existed before becoming 18 years of age and is dependent on the member or former member for over one-half of the child's support; or This Court is, properly, deferential to the legislative branch in construing legislative enactments.11 Circumspection should be heightened, however, where the record indicates that the legislature was mistaken as to matters relevant to its deliberations, or deliberately misinformed by those providing it information about the legal background of the proposal before it. 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. What is important to this topic is that the USFSPA is both jurisdictional and procedural; it both permits the state courts to distribute military retirement to former spouses, and provides a method for enforcement of these orders through the military pay center. The USFSPA itself does not give former spouses an automatic entitlement to any portion of members’ pay. Only state laws can provide for division of military retirement pay in a divorce, or provide that alimony or child support are to be paid from military retired pay. Rights granted by state law are limited by federal law, even if state law does not so provide, and even if the courts of the states do not see any such limitations.6 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that SPOUSE is and shall be deemed as the irrevocable beneficiary ofthe survivor's benefit plan ("SBP") through MEMBER's military retirement as the former spouse of MEMBER, and MEMBER shall execute such paperwork as is required to make or extend the election of SPOUSE as said beneficiary, and shall do nothing to reduce or eliminate that benefit to SPOUSE. MEMBER shall elect the former spouse-only option and shall select as the base amount the full amount of monthly retired pay. C) if enrolled in a full-time course of study in an institution of higher education recognized by the Secretary of Defense for the purposes of this subparagraph, is under 23 years of age and is dependent on the member or former member for over one-half of the child's support. bsp; 2. Basic core is the judicial declaration that "Where it is alleged . . . and proven that there was an agreement to acquire and hold property as if the couple was married, the community property laws of the state will apply by analogy."

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