In Search of a Coherent Theoretical Model for Alimony Section I

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I Underlying Statutes

The district court awarded the wife $16,500 in lieu of all her community property rights, and as and for alimony. The Supreme Court affirmed an apparent unequal distribution of property through an alimony award due to the husband’s financial misconduct. The Court found that the district court, after considering all the evidence in the record, made a fair, just and equitable award. Specifically, the record established the husband received through his accountant $2,259.63 which was the community property of the parties; that $6,504.47 of the community was transferred to the accountant, all with the purpose and design of removing the monies from the wife and for the ultimate use of the husband; that at the husband’s request, the wife executed an $1,800 note to an acquaintance of the husband, which the husband agreed to pay. nbsp;After the report was written, and before the hearing in question, the child stomped at another child’s leg at the ROCK program and exhibited violent behavior toward his foster mother. The social worker called the physician who had been treating the child since February 2000, and requested an emergency evaluation. The recommendation was made that the child entered the Spring Mountain psychiatric facility until his behavior stabilized. At the hearing, DCFS advised the district court about the child’s commitment. The district court orally ordered the DCFS to remove the child from the facility. The DCFS did not release the child and no stay of the order was requested. The child’s attorney requested an order to show cause be issued against the DCFS. An order was issued and at the hearing, DCFS explained that it understood the district court’s oral order to mean that it should release the child as soon as possible but not immediately. The district court indicated that it meant immediate release. The child was still not released. The court orally held the DCFS in contempt and fined DCFS $500 per day for every day the child remained at the facility. The DCFS filed for a writ of mandamus. The Supreme Court affirmed. The Court held the fact that the wife was named as the grantee in the deed was insufficient to show a gift from the husband to her. The Court noted that even if the husband knew that the deed was made to the wife, the presumption would still be that it was community property citing to Milisich v. Hillhouse, 48 Nev. 166, 228 P.307 (1924). The Court further held that the true test of the separate or community character of property acquired during the marriage ordinarily lies in whether it was acquired by community funds and community credit or by separate funds. The Court additionally noted that whatever is gained by the toil or talent of either spouse belongs to the community. Malmstrom v. People’s Drain Ditch Co., 32 Nev. 246, 107 P. 98 (1910) and Adams v. Baker, 24 Nev. 375, 55 P. 362 (1897). Property could be vested in either spouse, but the true character of the property was to be determined by the nature of the transaction under which it was acquired without reference to who retains the title. The Court concluded that generally, property purchased by either husband or wife during the existence of the community was community property, the determinative consideration being whether the purchase was made with community or separate funds. B> This portion of the materials, and of this seminar, are not intended to be a general overview of division of retirement benefits in divorce. Indeed, it would not be possible in the time allotted to do justice to such a general survey. 2) Notwithstanding any other provision of law, this section does not create any right, title, or interest which can be sold, assigned, transferred, or otherwise disposed of (including by inheritance) by a spouse or former spouse. Payments by the Secretary concerned under subsection (d) to a spouse or former spouse with respect to a division of retired pay as the property of a member and the member's spouse under this subsection may not be treated as amounts received as retired pay for service in the uniformed services. Said Order is subject to review by the Administrator and if approved by the Administrator is effective on the date set forth herein. If this Order is determined by the Administrator to be a QDRO then the Plan Administrator shall, within a reasonable period of time after delivery of this Order, notify the Participant and the Alternate Payee of such determination. If the Administrator determines that the Order does not qualify as a QDRO the Administrator shall, within a reasonable period of time, notify the Participant and the Alternate Payee of the reasons for such determination and shall, if the Participant is to retire within 90 days of the Order maintain the benefit under Option 2 as set forth in NRS 286.545, for a period of 90 days from the date of the Participantfs retirement to allow modification of this Order for qualification. The district court awarded the wife $16,500 in lieu of all her community property rights, and as and for alimony. The Supreme Court affirmed an apparent unequal distribution of property through an alimony award due to the husband’s financial misconduct. The Court found that the district court, after considering all the evidence in the record, made a fair, just and equitable award. Specifically, the record established the husband received through his accountant $2,259.63 which was the community property of the parties; that $6,504.47 of the community was transferred to the accountant, all with the purpose and design of removing the monies from the wife and for the ultimate use of the husband; that at the husband’s request, the wife executed an $1,800 note to an acquaintance of the husband, which the husband agreed to pay. 4. Is there any reason to believe that either the state or federal court has any bias against petitioner, counsel, or the proper decision of Hague Convention cases? The Court concluded that the Frye doctrine of equitable adoption, and "the myriad of other psychological theories of parentage that the parties mention in order to determine paternity" were inapplicable. Id. at 1406. The Court noted that NRS 126.051 provided for a rebuttable presumption, and was the statute to be applied in this case. The Court reversed the order finding the husband to be the father of the child, and remanded for further proceedings, noting that the joint legal custody order was also reversed. Most reviewing courts, however, have either found or simply assumed that Mansell is applicable in litigation concerning post-divorce recharacterizations by retirees, and attempted to apply it. Nevertheless, those appellate courts have almost uniformly reached the same conclusions as the court in Krempin, by other means. PRACTICE TIP: When money is owed for both retired pay and for child support, it is usually wise to get the retired pay as property started first (even if it means sending in two DD-2293 forms, a couple weeks apart). The reason to do so is that retired pay arrears cannot be garnished from future retired pay, but arrears in child support can - through the above-described Social Security garnishment order, a support obligee can get up to 65% of total retired pay, not just the 50% available under a DD-2293 direct payment procedure. So a practitioner taking the long-term approach should get the stream of property payments established quickly, and can always go back and slowly collect the support arrears by getting a garnishment order against an additional 15%. Note that, once established, such a garnishment order can remain in place for the long haul, even if the child emancipates, and the elimination of "current" support frees up in that 65% total that allows for payment of the arrears. The Court rejected the father's assertion that the motion to increase was barred by the six-month limitation in NRCP 60(b), and noted that perNRS 125B.145(1)(b), there was no time bar to a review of child support upon the filing ofa request for review. The Court also rejected the father's request that the mother's cohabitant's income be considered. The Court found that the lower court could examine the role of the mother's cohabitant's income in determining the "relative income of the parties" under NRS 125B.080(9). Specifically, a parent's gross income also does not include an adult co-habitant's income. However, both the income of a new spouse and an adult co-habitant's contributions to the household expenses can be considered as a basis for deviation from the statutory formula under NRS I 25B.080(9)(1) (relative income of both parents). As such, a cohabitant's contribution to a parent's rent and other expenses may be taken into account when setting or modifying child support per NRS I 25B.080(9). SUP> In Powers v. Powers,14 a three-to-one majority of the Nevada Supreme Court sided with California authorities in acknowledging that a "disability pension" generally has two components - retirement and disability - and that while the latter is sole and separate, the retirement component of a disability pension is divisible community property. Powers is notable because the disabled worker had not yet qualified for payment of any regular retirement benefits when he was retired for disability, indicating that any disability award stemming from employment has some retirement component that can be traced out and counted as community property. These work-arounds to the ten-year rule are also somewhat philosophically awkward, in that they attempt to satisfy the underlying purpose of the USFSPA by circumventing one of its limitations, albeit one that should never have been enacted, which serves no useful purpose, and which should be eliminated. It is possible that courts squarely addressing the practices recommended here would give differing opinions of their permissibility. PAN style="FONT-SIZE: 12pt"> In other words, while Mr. Pyne’s comments were rather ambiguous as to the intended scope of the statutory change, Mr. Ray indicated that the sole objective of the terminology used was to shield PERS from any court direction or demand to distribute benefits other than as set out by the Plan’s terms. The decree required the husband to pay alimony of $400 per month for ten years, followed by $200 per month for an additional ten years. The decree provided, however, that alimony would terminate if the wife remarried. The husband paid alimony until the wife remarried. The wife later discovered that her new husband had not divorced his first wife. She then had the marriage annulled and petitioned the district court to reinstate the alimony obligations and to award arrearages from the date on which the husband stopped making his payments. The district court denied wife’s request for all of the arrearages, but the court reinstated alimony from the date of the wife’s annulment. The Supreme Court reversed. The Court noted that under NRS 125.150(5) and the decree, alimony payments were to cease upon remarriage. The Court held that the term remarriage, as used in the decree and NRS 125.150(5), meant the solemnization or ceremony of remarriage, without regard to whether the remarriage is later determined to be void or voidable. The Supreme Court reversed. The holdings in Schwartz, Jones, Gandee, and Trent were reviewed. The Court reiterated that career advancement constituted a "good faith" reason to move, as did any reason that is not designed to frustrate the rights of the noncustodial parent. The Court held that it was a sensible good faith reason to move for greater income and advancement possibilities. The Court further held that improper weight was given to the fact the father would no longer have weekly contact and no serious consideration was given to the possibilities of alternative visitation. I) the difference between the largest amount required by any conflicting court order to be paid to the spouse or former spouse and the amount payable to the spouse or former spouse under clause (i); and One court that did explain why it was ruling as it did was the Colorado Court of Appeals, in In re Marriage of Payne.1 The court held that ordering husband to pay for the wife’s SBP gave the wife a right already enjoyed by husband, that is "the right to receive her share of the marital property awarded to her." The court adopted the "default" position for distribution of the premiums (discussed in the previous section), observing that: In March 1973, the husband filed for divorce. The wife filed an answer and counterclaim alleging that the parties had acquired community property. The husband, in his reply, admitted that allegation and only denied the amount of the balance of the savings and checking accounts. In August 1973, the husband died. The son filed a probate proceeding to determine the status of certain real and personal property seeking to have the property declared to be community property and subject to administration. The district court held that the joint tenancy deeds conveying all the real property involved to the husband and wife as joint tenants, and not as tenants in common, with full rights of survivorship, did not without other clear and certain independent evidence overcome the presumption that such property purchased with community funds was community property. is is why military retirement benefits must be addressed at the time of divorce. The non-uniform national law governing partition of omitted assets therefore makes it imperative for counsel to address all pension benefits during the divorce case itself, as a matter of prudent, if not defensive, practice. But the Supreme Court’s order finding that Nevada had subject matter jurisdiction as the children’s home state under the UCCJEA is likely to cause future grief and confusion. Faced with these alternatives, the ad hoc Section Committee that directed the drafting of this brief discussed and voted on the matter, and believed that the latter danger outweighed the former, so any decision by this Court in this case should include a prohibition against child support flowing "uphill" - i.e., from a majority time-share custodian of a child to a minority time-share custodian of a child. Also, in 1962, the husband, with two other persons, formed C.B.C. Inc., for the purpose of purchasing, improving and selling parcels of real estate. The husband testified that he used proceeds from the sale of his inherited stock, plus a bank loan secured by more of the same stock, to purchase his interest in the corporation. The husband and wife each received one-sixth interests in the corporation. The sole asset of the corporation was sold in June 1969 for $800,000. Although the wife held in her name a certificate evidencing a one-third interest, the husband personally received $302,779 from the sale, which represented a return of the invested capital plus a share of the profit. The district court awarded the proceeds to the husband and held that the transfer was merely to avoid creditors and that there was an oral agreement to reconvey. It should be noted that the amount of the survivorship interest is variable, and provides planning opportunities for counsel. The maximum SBP is selected if the entire retired pay is selected as the "base amount." The smaller the base amount selected, the smaller the survivor annuity - and the smaller the lifetime premium paid to supply it. Whatever the base amount selected, cost of living adjustments increase a base amount so as to keep it proportionally the same as the amount initially selected. The standard "time rule" formula seems simple enough ¨C the spousal share is determined by taking the number of months of service during marriage as a numerator, and the total number of months of service as a denominator, and multiplying the resulting fraction by first one-half (the spousal share) and then by the retirement benefits received.

You can find In Search of a Coherent Theoretical Model for Alimony Section I Either Federal or State Courts May Make the Hague Determination Why It Might Be Appropriate to Re-allocate the SBP Premium Divison of Military Retirement Benefits In Divorce Section VII Divison of Military Retirement Benefits In Divorce Section IV Valuation of Las Vegas family law advocate The Marren and Page Case List Bopp v Lino Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar The Marren and Page Case List Peterson v Peterson Joint Titling Gift or Separate Claims Still Allowed Tracing The Marren and Page Case List Rosenbaum v Rosenbaum Military Retirement Benefits Some Practical Points to Actual Collection of Child Support Alimony and Pro QDRO checkup How is Property Acquired in Diffrent States Treated Rivero v Rivero Opinion Subsection Three B The Marren and Page Case List Renshaw v Renshaw and Wallaker v Wallaker In Search of a Coherent Theoretical Model for Alimony Section I available at lvfamilylawyer.com by clicking above.

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