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Hedlund Brief Amicus Discussion of Issues
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III A Whether the District Court can order payments to the former spouse before the member actually retires65279;In 1999, the Washington state Supreme Court decided In re Marriage of Jennings. The court found that a retiree who terminated a stream of payments to a former spouse by electing, post-divorce, to begin taking disability rather than retired pay created such "extraordinary circumstances" that the trial court should take the "justified remedial action" of awarding compensatory spousal support even four years after the divorce in order to "overcome a manifest injustice which was not contemplated by the parties at the time ofthe 1992 decree." The court noted the reduced stream of payments to the spouse, and held that: The parties were divorced September 1983. The decree incorporated the parties' property settlement agreement, which provided that the husband make alimony payments of $3,000 per month for 60 consecutive months, and thatthe husband would purchase the wife's community property interest the medical practice for $1.25 million. In November 1987, the husband filed a Chapter 7 petition for bankruptcy. His property settlement obligation was discharged but his alimony obligation was not. On November 23, 1988, the wife obtained a judgment for $126,000 in alimony arrears. On August I, 1990, the husband made his last alimony arrearage payment by prepaying the payment due on September 1. On August 31, the wife filed motion to modify the alimony provisions of the decree, due to the fact the husband's income had increased substantially since the original decree and thatthe discharge of the property settlement obligation in bankruptcy had negatively affected the wife's financial position. The husband's alimony obligation was increased to include the property settlement he discharged. Examination of the practical effects of statutory interpretation has long been a hallmark of this Court’s holdings relating to appointments and elections. As early as 1924, this Court recognized that such interpretations are required to be practical and feasible, holding in State v. Jepsen8: nbsp;The district court ordered the father to pay child support of $1 ,000 per month per child. The district court found that the amount awarded was "fair and equitable" in light of "the vastly different incomes and financial resources of the plaintiff and defendant, and the amount of time the children will spend with each parent as a result of this decree." The father contended that before a district court could award support above the above the statutory formula, the obligee was required to prove that the additional amount was necessary to meet the child's needs. Several years after their divorce, the wife asked the district court to order the husband to increase child support payments. On grounds of need, the wife also asked for fees to pay her attorney. The district court increased child support and awarded the wife $2,500 in fees. The parties were married in April 1947. At the time of the marriage, the husband owned a motel. The motel, at the time of marriage, had a value of about $20,000 and was in poor condition. In October 1947, the husband conveyed the property to himself and the wife as joint tenants and it was recorded. The husband died in 1951. During the entire period of the husband’s illness all the work of the motor court was done by the wife. In October 1950, the husband executed a deed conveying all his interest in the property to his daughter which she recorded after the husband’s death. The district court found that the husband and the wife owned and held the property as joint tenants, and that the husband conveyed his interest to his daughter. The district court made a conclusion of law it held that the property had been held by the husband and wife in joint tenancy and not as community property. The court denied the wife’s request for quieting title and granting the daughter’s request of quieting her title to an undivided one half interest. The district court also held that an undeclared or de facto homestead could not exist in real property held by husband and wife as joint tenants. The district court also held that the contribution of community efforts and earnings, greatly enhancing the value of the property did not result in transmuting the joint tenancy to that of community property. A person receiving effective servce of a court order unde r this section shal, as soon as possble, but not later than 30 days after the date on which effective service is made, send a written notice of such court order (together with a copy of such order) to the member affected by the court order at his last known address. One California court, surveying cases from around the country, held in 1999 that Mansell does not apply to post-judgment waivers of retirement pay at all, because Mansell held only that disability benefits could not be divided "upon divorce."1 2) Each parent's share of the adjusted basic child support obligation shall then be multiplied by the percentage of time the child or children spend with he other parent to determine the theoretical basic child support obligation owed to the other parent. (3) Subject to the provisions of paragraphs (4) and (5) of this subsection, the parent owing the greater amount under paragraph (2) of this subsection shall owe the difference in the 2 amounts as child support. bsp; a. Generally, courts not concerned with goo guy/bad guy or anything else beyond staying alive to end of case It is possible for a former spouse to contest the discharge in bankruptcy of an obligation to remit to the former spouse a portion of retired pay, by attacking it as a "fraud while acting in a fiduciary capacity" or a tortious "debt for willful and malicious injury."9 Litigation in bankruptcy court may cause that court to carry into effect the divorce court’s orders.10 At least one court has held a designation of the former spouse as the Survivor’s Benefit Plan beneficiary was a non-dischargeable transfer and not a "debt" subject to discharge in bankruptcy.11 The family court judges' reading of the stipulated decree also comports with NRS 125.490, which states: "There is a presumption, affecting the burden of proof, that joint custody would be in the best interest of a minor child if the parents have agreed to an award of joint custody." See NRS 125.480(1) and (3)(a) (stating preference for orders awarding joint custody and providing that "[i]f it appears to the court that joint custody would be in the best interest of the child, the court may grant custody to the parties jointly"; statement of reasons required only if joint custody denied). The There are several options under PERS for the form of monthly benefits, securing various levels of survivorship payments for beneficiaries, which are discussed in the death benefits section of these materials. 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 Supreme Court affirmed. The Court began by noting that there is rebuttable presumption that, all property acquired after marriage by either spouse is community property citing to NRS 123.220. The Court further noted that the presumption that the property is community property was stronger when any claimed separate property has been extensively intermingled with community property citing to Fox v. Fox, 81 Nev. 186, 401 P.2d 53 (1965). The Court noted that accountants testified extensively as what was commingled and what was not. The Court found that there was substantial evidence to support the district court’s finding that community and separate income and expenditures were traceable citing to Kelly v. Kelly, 86 Nev. 201, 307, 468 P.2d 359, 363 (1970). B> The Nevada child support guidelines were initially derived from the Wisconsin Guidelines, making Nevada one of half a dozen "percentage of income" guideline states. 18 This theoretical model presumes a contribution from the custodial parent, and calculates a contribution from the non-custodian as a percentage of income to support the child in the primary household. While application of such a formula provides consistent and predictable outcomes, thus reducing litigation, strict application of the formula may cause inequity under the unique facts and circumstances of some cases. Thus, in order to balance adequacy in every case versus consistency and predictability, while keeping the formula simple, the Nevada statutory guidelines evolved to combine both a formulaic approach, 19 and discretionary deviation factors that can be tailored to the facts of certain cases, as necessary.20 The case was eventually appealed to the United States Supreme Court, which determined that State community property laws conflicted with the federal military retirement scheme, and thus were impliedly pre-empted by federal law. The majority held that the apparent congressional intent was to make military retirement benefits a "personal entitlement" and thus the sole property of individual service members, so the benefits could not be considered as community property in a California divorce. The Court concluded that the referee’s only finding revealed little about the father’s ability to pay, or the injustice of requiring him to pay the statutory amount and that the district court erred by failing to set forth sufficient factual findings to support a deviation. The Court also concluded the referee came up with a new formula by looking at net income and the trial approved it which was error. Whether States follow a "payment upon eligibility" or "payment upon retirement" rule is another one of those doctrines which is not at all obvious from the label applied by the individual States, but again is usually hidden in their decisional law. Which way the State goes on this question can have a huge impact on the value of the retirement benefits to each spouse. This is the classic divorce scenario - whether divorce occurs before or after retirement, it is usually expected that both parties will continue to live until after the member retires from active duty. Next door in Nevada, community property ceases to accrue on the "date of divorce."3 There, the math would be 12 (years of marriage) ¡Â 20 (years of service) x .5 (spousal share) x $1,000 (pension payment) = $300. SPAN> In the Matter of Parental Rights as to Q.L.R., 118 Nev. 602, 54 P.3d 56 (2002) The fact that the father committed a crime did not mean he intended to go to prison and, therefore, to abandon the child. Voluntary conduct resulting in incarceration does not alone establish an intent to abandon a minor child. The Court also reversed a provision of the decree of divorce which required husband to maintain an insurance policy on his life naming wife as beneficiary. The court found this would also violate the "equal distribution" requirement of NRS 125.150(1)(b) since the decree did not impose a similar requirement on the wife and because the wife would have an interest in husband’s pension if he predeceased her before he actually retired. The Court upheld the district court’s decision that wife’s vested community interest in husband’s pension would survive her and become a part of her estate since upon division wife’s portion of the pension became her separate property. The Court disapproved the "consideration" of wife’s future receipt of Social Security benefits although the district court did not offset those monies from wife’s portion of husband’s pension. The court held that "considering" Social Security benefits was tantamount to an offset and was, therefore, error. If the matter proceeds to litigation, the forum State will have to rule on where the military member is actually a "resident" and "domiciled." This can be far harder than it appears, especially since States diverge radically on the meaning of those terms. In some places "residence" is a physical question of location at the time of filing, while "domicile" is that permanent home "to which one returns."1 In other places, the meanings are reversed.2 In some States, residence and domicile have the same meaning.3 A service member who has close connections to more than one State will still only have one domicile.4 If the service member has significantly more connections to one State than another, then the State to which he has closer ties is his domicile.5 The mother received primary custody of the three children. In June 1977, one of the parties’ children moved into the father’s home. In response, the father reduced the support payments by $250 per month for the months of June and July, and $474.50 from the payment August payment. In August 1977, the mother filed a motion for judgment for arrearages, requesting a judgment for the amounts withheld from the June and July payments. At the hearing, the father testified that he had in fact reduced the payments for June, July, and August. The father argued that he should be entitled to an "equitable setoff" of the amounts he actually expended on his son while he was living with him. The district court entered judgment for the arrears and held the father in contempt for reducing the payments. As a practical matter, however, the Services have been quite liberal in granting "administrative corrections" upon the requests of members, even years after a divorce, when spouse coverage was in effect rather than "former spouse" coverage, but premiums were paid and the members claimed that they "mistakenly assumed that [the former spouse] remained the covered beneficiary following the divorce since SBP costs continued to be withheld."3 California court in Luciano: "The employee spouse cannot by election defeat the nonemployee spouse’s interest in the community property by relying on a condition within the employee spouse’s control."1 b) When one parent exercises physical custody for 25 percent or more but less than 30 percent of a calendar year, each parent's respective share of the total support The Court invited Congress to change the statutory scheme if divisibility of retired pay was desired, stating: "We recognize that the plight of an ex-spouse of a retired service member is often a serious one," and noting that: 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 military retirement system, for example, is a defined benefit plan that does not permit a divided interest, but only a divided payment stream. And a military member can enlist at age 18, reaching eligibility for full longevity retirement 20 years later, at age 38. Neither the military system, nor the Civil Service system, permit their plans to make any payments to a former spouse until the member/participant actually retires. 65279;In 1999, the Washington state Supreme Court decided In re Marriage of Jennings. The court found that a retiree who terminated a stream of payments to a former spouse by electing, post-divorce, to begin taking disability rather than retired pay created such "extraordinary circumstances" that the trial court should take the "justified remedial action" of awarding compensatory spousal support even four years after the divorce in order to "overcome a manifest injustice which was not contemplated by the parties at the time ofthe 1992 decree." The court noted the reduced stream of payments to the spouse, and held that: The attorneys for the Court that have attended Ely in past years have seemed capable, interested, and caring. I’m sure they are trying hard, while probably overwhelmed. But I think they have no way of knowing the real-world impacts of their submissions to the Court. If, as I suspect, the problem is the lack of exposure to the realities of family law practice, what would seem advisable is to solve that problem, as directly as possible. b. The cost to virtually every party in every motion hearing would be reduced, since the entire step of getting counsel to draft, submit, and file orders would be eliminated. You can find Hedlund Brief Amicus Discussion of Issues Divison of Military Retirement Benefits In Divorce Section X Subsection D Cases and Trends Recharacterization is Generally Not Permitted The Marren and Page Case List Champagne v Welfare Divorce Geeson v Barnes I The Perversion of Bureaucratic Priorities Rivero v Rivero Opinion Section V Custody Visitation and Temporary Support Issues The Marren and Page Case List Pelletier v Pelletier Divison of Military Retirement Benefits In Divorce Section III Key Concepts Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Civil Service The Marren and Page Case List Willmes v Reno Municipal Court Division 50 50 or other The State Bar Fee Dispute System is Broken Rivero State Bar Amicus Brief Approaches Relating to Unequal Joint Custody The Marren and Page Case List Laws v Ross Milisch v Hillhouse and Verheyden Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Rivero State Bar Amicus Brief Part One Subsection I How Low Does the Bar Go Factors to Consider in Deciding Whether to File in Federal or State Court Hedlund Brief Amicus Discussion of Issues available at lvfamilylawyer.com by clicking above. 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