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In Search of a Coherent Theoretical Model for Alimony Section III
Learn more about In Search of a Coherent Theoretical Model for Alimony Section III.
Why lack of predictability is a problemSince, by definition, no member taking a TERA retirement ever stays on active duty for 20 years, it is not possible for a spouse of such a member to ever have 20 years of marriage during active duty, and therefore become a "20/20/20" former spouse entitled to lifetime medical and other benefits.1 This creates the situation whereby a current spouse of a TERA retiree is treated just like the spouse of any other retired member, but the former spouse of a TERA retiree (irrespective of the timing of the divorce and the retirement) has none of the ancillary benefits that the former spouse of a "regular" retiree would have.2 In Mississippi, pretty much the opposite approach to the mathematical construct of Alaska is directed, again by statute. There, courts are simply directed to deviate downward upon findings that expenses in the primary household have been "actually reduced" by the level of visitation/shared custody exercised by the other party. They are also directed to deviate upward upon findings that the non-custodial parent has no involvement with the child and so makes no direct contribution to the childs expenses. Does it create or recognize the existence of the eligible alternate payeefs right and assign to the alternate payee the right to receive all or part of the memberfs benefits under a plan when the member's retirement benefits commence? PAN style="FONT-FAMILY: Times New Roman; FONT-SIZE: 14pt"> The cautious practitioner will ensure that the property settlement agreement or divorce decree is crafted with sufficient demonstrations of intent (and reservations of jurisdiction, if necessary) that a later reviewing court would be able to transcend recharacterization of the benefits addressed. The form provided with these materials is intended to provide a statement of such intent. B> Fern v. United States, 15 Cl. Ct. 580 (1988), affd, 908 F.2d 955 (Fed. Cir. 1990), was an unusual one in this field, as the defendant was not a former spouse but the United States itself. The suit sought to have the USFSPA declared invalid to the extent that it entitled the government to reduce the retired pay flowing to the members themselves; in other words, the members contended that irrespective of any award to any former spouse, the full sum of retired pay should be paid to the members. It alleged unconstitutional "taking" of property in violation of the Fifth Amendment, an unconstitutional impairment of their individual contracts with the United States (by which they alone were to receive the entirety of their retirement benefits), and that spousal awards under the USFSPA were due process violations. The court addressed the constitutional challenges head on, and found that there was no constitutional issue in state court division of military retired pay under the USFSPA. SUP> There are other conceptualizations of marital property, of course. An alternate form called the "Roman-Dutch" system, adopted in the some Scandinavian countries (plus South Africa and Brazil), adopts the "hotch-pot" theory found in various common-law American States, in which all property is considered marital, whether acquired before or during the marriage.4 It is this conceptualization that most nearly gives meaning to the oft-recited wedding vow of "With all my worldly goods I thee endow." The Court noted that the action was an action for damage for breach of contract. The Court further noted that NRS 99.040(1) applied to all contracts and required interest to be paid on all sums from the time they become due, citing to Paradise Homes v. Central Surety, 84 Nev. 109, 437 P.2d 78 (1968) and Close v. Isbell Constr. Co., 86 Nev. 524, 471 P.2d 257 (1970). The Court noted that the wife was deprived of the use of those funds as each installment came due and held that she was entitled to interest from those dates. The Gaskill court therefore concluded that, to the extent a business or profession has goodwill (or has a value in excess of its net assets) it is a factual issue to what extent, if any, that goodwill is personal to the owner or employee and to what extent it is enterprise goodwill and therefore divisible property. In its watered-down form as passed, it did not affect those who drafted the proposal at all, but what remained either did nothing, is unworkable, is so vague as to be uncertain what it purports to do, or directly conflicts with the community property acquisition and distribution rules that have applied to everyone and everything else for at least the past half century. For PERS participants only, the equal-division presumption as to community property is elective, the time rule may apply differently, and the security of spouses of actual collection of their share of the property under the payment-at-eligibility rule is optional and lessened. Court rules, when not inconsistent with the constitution or laws of the state, have the effect of statutes, citing Lightle v. Ivancovich, 10 Nev. 41 (1875), Haley v. Eureka County Bank, 20 Nev. 410, 22 P. 1098 (1889). bsp; a. An independent action can be filed more than six months after entry of the decree under NRCP 60(b), if based on certain acts considered fraud on the court. Upon separation from service, a tangle of other rules spring into effect. First, TSP accounts of less than $200 are automatically distributed at the time of separation. If between $200 and $3,500, the sums may be left in the TSP, or withdrawn in a single payment or multiple payments (cashed, or rolled over into an IRA or other retirement account). For accounts containing more than $3,500, the TSP balance can be partially or fully withdrawn in a single payment, or by way of a series of monthly payments, or by way of a life annuity. Any combination of the full withdrawal options is called a "mixed withdrawal." The Supreme Court issued the writ of prohibition. The Supreme Court found that NRS 125.150 was plain and unambiguous, held that at the time a judgE ment or decree of divorce is entered, the district court must Contemporaneously dispose of the community property of the parties. The Court distinguished from Ellett v. Ellett, 94 Nev. 34, 573 P.2d 1179 (1978) because the parties had stipulated to separate trials on the issues, but no final judgment was entered until the close of all proceedings. UP> The apparent legal conclusion of no fundamental right may have been altered by later developments. More recently, the United States Supreme Court ascribed constitutional importance to the divorce process, in Boddie v. Connecticut.7 Noting that State action was necessary for any person to dissolve a marriage, the Court stuck down Connecticuts mandatory filing fee for obtaining a divorce on both due process and equal protection grounds: The ability of an abductor to travel internationally - and to seize a child in doing so - implies a command of at least some resources, but our experience is that a sizeable number of abductors are, to a substantial degree, "judgment proof." Even those who are not tend to be reasonably versed in the vagaries of international travel, and currency conversion and disguise, so that enforcing judgments against them is extraordinarily difficult. Using this approach, absurd results stemming from the negation of upward deviations when the presumptive maximum is applied, will not occur. The proposed approach will also eliminate the possibility of absurd results stemming from the Rivero Formulas strict percentage-of-time approach which does not consider the direct financial impact on the respective parents or the adequacy of support of the child in either household. B> The same court later ruled, however, that the same result could be reached indirectly, by way of a contempt action against a husband for non-payment of a portion of military retirement benefits which he claimed were exempt by reason of his waiver of retired pay in favor of disability benefits.4 In that case, the wife was ultimately allowed to collect from the husband all sums called for by the decree but which he had sought to recharacterize as disability. The Texas court sided with the clear majority of courts in so holding. Completely separate statutory schemes govern administration of retirement benefits of members of the United States Armed Forces. On June 26, 1981, the United States Supreme Court In order to clarify the definition of joint physical custody, we first address the definition of legal custody. Physical and legal custody involve separate legal rights and control separate factual scenarios. Therefore, we discuss both legal and physical custody to clarify the distinctions. Very few courts have reached the opposite result.14 Others have reached that opposite result, just to be reversed on appeal or affirmed upon narrow findings of special circumstances.15 4. In determining whether an injustice is present the district court should make reference to the factors and considerations in NRS 125B.080(8) and NRS 125B.060 (now repealed), with principal concern being given to the standard of living of the parties, their earning capacity and their relative financial means. It is possible to mix and match. A member of the regular services may complete the 20 years necessary for retirement by entering the reserves, as long as the last eight years are reserve service. Reserve service can also be rolled into a regular retirement. If the member is of a rank where "dream sheets" regarding preferred postings are available, they should be sought in discovery. If a member lists a jurisdiction as his primary (or only) preferred duty station, a good case could be made that the member's location there is not only "because of military assignment." Find out what his prior postings were, and whether (and how many times) he has returned to the forum after being stationed in some other place. The most time consuming part of a Hague Petition is educating the court about the Convention, with an emphasis on the need for prompt judicial action. An important fact in determining choice of forum, therefore, may well be the familiarity of the various potential courts with prior Hague cases. To assist in educating a court new to the issues, counsel can request the U.S. Central Authority in the Department of State to send the court its form letter on the background, purpose and requirements of the Convention. The parties held a deed to property in joint tenancy. The district court found that the lot was community property and ordered it sold at fair market value with the proceeds divided equally between the parties. The husband never objected to the characterization of the lot as being community property. P> Although the agency administering the TSP has proven more flexible than either the military or the OPM, its regulations did spawn yet another acronym for a court order dividing benefits - "RBCO," for "Retirement Benefits Court Order." In prior years, it was commonly believed that PERS was not able to honor orders issued after payments began.4 However, the statutory scheme itself calls for re-computation of the amount payable in certain circumstances,5 and the agency, again, has been reasonable in honoring court orders altering option selections, etc., post-retirement. is the far better practice to deal with military retirement benefits during the divorce itself, instead of deferring the matter to be dealt with "later." Some States do not permit a spouse who does not receive a portion of pension benefits to bring a partition action at a later date to divide those benefits, and parties often relocate after divorce. The jurisdictional rules could require the matter to be resolved in such States. Since, by definition, no member taking a TERA retirement ever stays on active duty for 20 years, it is not possible for a spouse of such a member to ever have 20 years of marriage during active duty, and therefore become a "20/20/20" former spouse entitled to lifetime medical and other benefits.1 This creates the situation whereby a current spouse of a TERA retiree is treated just like the spouse of any other retired member, but the former spouse of a TERA retiree (irrespective of the timing of the divorce and the retirement) has none of the ancillary benefits that the former spouse of a "regular" retiree would have.2 The district court found the ranch and range lands, buildings, and improvements, supplies and equipment to be worth $180,000, livestock $56,008, a promissory note $12,000, cash on deposit $15,522, an automobile $2,320. The assets were subject to an encumbrance of $45,000 for payment of the ranch, leaving a net value in the sum of $220,850. The court then found ranch, at the time of the divorce, comprised several smaller ranches that had been acquired during the marriage and integrated into a single ranching unit. The district court further found that the integrated ranching unit was capable of producing more cattle, than as separate components, so that a partition would not only decrease the value, but would cost more money be required the spending of substantial sums for the purchasing of fencing and building improvements. The district court refused to assign to the wife a ranch on which the parties had resided. For example, suppose parents divorced while a child was an infant, and had joint custody, but the military parent was subsequently deployed for a year or two, and then returned. A court required to indulge the fiction that the absence of that parent "may not be used against the servicemember" would be required to restore joint custody of an infant to a parent who would be a complete stranger to the child, irrespective of the childs best interest. This is an essential concept, which practitioners ignore at their considerable peril in malpractice. As noted at the beginning of these materials, there are malpractice dangers in all retirement-related cases; they most severe relating to survivorship matters. The potential losses to the client are catastrophic, and the resulting risks to counsel are enormous.2 This is not to say that the case law has uniformly favored former spouses. Where counsel for the former spouse was not sufficiently careful in drafting the language of the decree, where the funds paid to the former spouse were not a portion of the retired pay but a sum meant to compensate the former spouse for her interest therein, and where no argument could be successfully made that the funds were necessary for the support of the former spouse, the former spouses interest has sometimes been found to be dischargeable.4 You can find In Search of a Coherent Theoretical Model for Alimony Section III Ogawa extending time to file under UCCJEA Rivero v Rivero Opinion CONCLUSION The Marren and Page Case List Lombardi v Lombardi Giorgi v Giorgi Hopper v Rivero v Rivero IV C The Marren and Page Case List Bemis v Estate of Bemis Siragusa v Brown Protecting the Interest of and Getting Money from People in th Military Wha The Rivero Formula Exhibit Three The Marren and Page Case List Robinson v Robinson Wilford v Wilford and For 10 USC 1408 Uniformed Services Former Spouses Protection Act Divorcing the Military and Serving the Civil Service Section II Subsection Rivero v Rivero IV B Subsection One The Marren and Page Case List Engebretson v Engebretson Hybarger v Hybarger Divison of Military Retirement Benefits In Divorce Section V Subsection C Valuation of Military Retirement Benefits Rivero v Rivero Opinion Section II A Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar The Marren and Page Case List Trubenbach v Amstadter Divison of Military Retirement Benefits In Divorce Section VI Subsection B Introduction to Nevada child support law Rivero v Rivero Opinion Subsection Three Division 5050 or Other In Search of a Coherent Theoretical Model for Alimony Section III available at lvfamilylawyer.com by clicking above. Site Map The Marren and Page Case List Benavidez v Benavidez Hay v Hay Carr Bricken Divison of Military Retirement Benefits In Divorce Section IV Subsection D Nevada divorce and family law Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar The Marren and Page Case List Lemkuil v Lemkuil Divison of Military Retirement Benefits In Divorce Section X Subsection C Legal Authority For Use in Requesting Fees in a Pro Bono Case |