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In Search of a Coherent Theoretical Model for Alimony Section I
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I Underlying StatutesThis Court rejected the husband’s attack on Gemma, which he had argued was "fatally flawed" for non-recognition of the "passive appreciation of the sole and separate portion" of the retirement during the marriage, and explicitly reaffirmed its holdings in Gemma, Sertic, and Fondi. The district court entered a decree dissolving the marriage. On appeal, the wife challenged several findings of the district court concerning the character and division of community assets and debts, and the district court’s denial of her request for alimony and attorney’s fees. The wife based her arguments upon the testimonial evidence presented at trial, but failed to include the trial transcript as part of the record on appeal. The Court held that in deciding cases, it must confine its consideration to the facts reflected in the record and the necessary and reasonable inferences that may be drawn from it. The statements made by counsel in their briefs, alleging facts or their arguments made in open court, portraying what might have occurred, would not be considered. Attorney’s fees of over $13,000 (and lien for $26,000) were termed "excessive" where the attorney performed minimal discovery, and called no witnesses except the client. The Court noted that a lawyer who files an appeal "without providing the trial transcript or at least a statement permitted by NRAP 10(e) does a disservice to his client." Supreme Court "strongly recommended" that counsel "reassess his fees and advise the Court of the results of his reconsideration." I> Courts throughout the country are in fair consensus hold that a spouse can receive a share of any early retirement taken by a member, under the theory that the "early out" benefits are as divisible as the retirements that were given up to receive those benefits, whether or not there is any federal mechanism for direct payment to the former spouse. Very few courts have reached the opposite result.Others have reached that opposite result, just to be reversed on appeal or upheld upon narrow findings of special circumstances. There is no federal rule requiring either that a former spouse must be awarded future COLAs, or that they should not accrue. The pay center attempts to recognize the intention of court orders, using various assumptions. The parties married May 1921. The property in dispute was deeded to the husband June 1921. In January 1924, the husband made, executed and delivered a grant, bargain and sale deed for the property to the wife, with the wife to pay the mortgage. There was no evidence that the property was paid for out of the wife’s separate estate. Instead, the record showed the land was paid for out of community funds. The wife died December 1943. She left an estate consisting of real property. The husband maintained that it was community property. The children filed an objection. The district court found that the real estate was community property and that it was acquired by them subsequent to their marriage. The Supreme Court affirmed. The Court began by noting that it reviewed the validity of premarital agreements de novo. The Court then noted that a premarital agreement entered into before October 1, 1989, was enforceable if the agreement conformed with either the requirements of NRS Chapter123A, the Uniform Premarital Agreement Act ("UPAA"), or Nevada common law. The Court further noted that pursuant to the UPAA, a premarital agreement was enforceable without consideration if it was in writing and signed by both parties and that it could eliminate alimony. The Court found that the wife voluntarily signed the agreement, had an opportunity to consult with legal counsel, was not coerced and possessed the acumen to understand the transaction. The Court held the agreement was unenforceable because the husband did not fully disclose his assets and obligations before the wife signed it. Because the husband failed to attach his schedule of assets until a year after the agreement was signed the Court affirmed the district court’s invalidation of the alimony waiver. Other courts have expressly found that reimbursement is required, whether or not there was any kind of indemnification or safeguard clause in the underlying decree.3 The primary purpose of the USFSPA was to define state court jurisdiction to consider and use military retired pay in fixing the property and support rights of the parties to a divorce, dissolution, annulment, or legal separation." Byfits and starts, every State in the Union has permitted military retirement benefits to be divided as property, at least in certain circumstances. The Nevada Supreme Court¡¯s decision in Wolff, supra, in which it held that Social Security benefits could not be considered directly or indirectly in dividing other property, appears to call into question the Court¡¯s prior holding in Anderson v. Anderson,1 where it used the husband¡¯s receipt of twice as much per month in Social Security than the wife received as support for the unequal division of marital assets. This Court rejected the husband’s attack on Gemma, which he had argued was "fatally flawed" for non-recognition of the "passive appreciation of the sole and separate portion" of the retirement during the marriage, and explicitly reaffirmed its holdings in Gemma, Sertic, and Fondi. Harms is remarkable, among other things, for the sheer tenacity of its litigants. Many similar cases are apparently resolved quickly and quietly, at least where one party does not oppose a correction to what is apparently conceded to be an inequitable result. For example, in Stewart v. Gomez,3 the parties had been divorced in 1987 in England. The member, who arranged for the British divorce, had specifically assured the former spouse that he "was looking out for the best interest of" the spouse and their children and "specifically promised that when he retired" the former spouse "would receive a portion of the military retirement benefits." The member subsequently retired and moved to Nevada, but did nothing to ensure payments to the former spouse. The former spouse moved to South Carolina. The Supreme Court reversed. The Court held that if prevailing party in a breach of contact action (enforcing a non-merged marital settlement agreement) and in excess of $300 ($2,500 today) is recovered, the party must be awarded their costs. The Court further held that the allowance was mandatory and was not subject to the district court’s exercise of discretion. However, the Court held that if the action were one in equity, award of costs would be discretionary. State statutes and cases express different preferences for the possible "cash out/exchange" and "if/as/when" division methods of allocating retirement benefits. It is difficult to generalize. Courts have focused on the apparent tactics of the non-military spouse,4 or on the apparent bad-faith conduct of the member5 in reaching their decisions. The cases are - necessarily - very fact-specific. The value judgment that preventing "hidden alimony" to custodial parents is more important than allowing children to fairly enjoy a standard of living reflecting that of both their parents is one about which reasonable minds could differ. It is intellectually dishonest, however, to even pretend that Nevada's child support law intends to "be calculated according to the obligor's means" so long as the contrived and arbitrary "presumptive maximums" remain in place. Attached to these materials as Appendix 2 is a sample complaint containing causes of action for all of these allegations (altered from an actual filing). As with all such matters, the facts of the case drive the claims that might appropriately be brought, but it is hoped that the sample complaint may be of use to practitioners trying to construct independent tort claims against kidnapers and their accomplices. Below is a discussion of a few of the considerations that might appropriately be thought through before such an action is filed. example, if the registration to vote had been made twenty years ago, and the member last voted years before moving to the forum state, the fact might be of little consequence given events since that time. Having determined what constitutes joint physical custody and primary physical custody, we now consider whether the district court abused its discretion in determining that the parties had joint physical custody when their divorce decree described a 5/2 custodial timeshare but labeled the arrangement as joint physical custody. SUP> Those lawyers who insist on arguing personal jurisdiction matters in child custody proceedings ¨C and those judges who indulge such expositions, as opposed to staying focused on the statutory inquiry ¨C waste the time and money of everyone involved. P> The court mused that "goodwill" generally gives a businesses "value beyond fixtures and accounts receivable," as when what is being sold is "any . . . reputational thing a buyer could reasonably be expected to pay for." But the court found that analysis alone inadequate, because sometimes "part of goodwill . . . is personal and nontransferable, much like the professional degree. . . ." The parties married while the wife was pregnant. The wife claimed that she told the husband the father was another man; the husband admitted that wife never told him that he was the father of the child. The parties cohabited intermittently until separating when the child was three. The wife relocated to Iowa, where she raised the child alone, was on welfare, and attended school. The parties discussed reconciliation in 1990, but the attempt, in Las Vegas, lasted only 30 days. The wife filed for divorce. Presumably, other States could have still different rules for measuring when the community or coverture period started or ended. Such variations could lead to significantly different sums collected by the respective spouses over the course of a lifetime. PAN style="FONT-FAMILY: Times New Roman; FONT-SIZE: 14pt"> The California court then added its own conclusion, that: "A review of the out-of state precedents confirms that this result is nearly universal." Krempin, supra. Anecdotal accounts, however, indicate that some courts continue to be misled into ruling to the contrary, based upon an overly-expansive reading of Mansell and misplaced concerns about violating the Supremacy Clause. American Bar Association committee recommendations to Congress to make division of retirement benefits non-dischargeable were apparently responsible in part for enactment of the prior subsection (a)(15) exceptions to discharge, but a detailed exploration of those provisions is beyond the scope of these materials. 65279;Far better than trying to fix such problems would be to avoid them altogether, of course. Preferable mechanisms by which payments after the member's death could be accomplished include private life insurance (with the intended beneficiary as owner) or beneficiary status under the Survivor's Benefit Plan, discussed above. Our court determines that neither the child, nor a parent, nor any person acting as a parent has any significant connection to this State, and that no substantial evidence exists here as to the child’s care, protection, training, and personal relationships; an order awarding each of the parents significant, but not necessarily equal, period of time during which a child resides with or is under the care and supervision of each of the parents. Joint physical custody shall be shared by the parents in such a way as to assure the child of frequent, continuing and meaningful contact with both parents A hideously convoluted custodial case (same facts as Duff v. Lewis) involving multiple allegations of sexual abuse of two minor children by both sides, conflicting Temporary Protective Orders, back-and-forth custody orders, and a host of potential wrongdoers, the Supreme Court affirmed the dismissal of a complaint brought by the eventuallytriumphant mother, who asserted that the County government, the CASA ("Court Appointed Special Advocate") program, a volunteer CASA worker, and various other employees were negligent and that their negligence had led to damage to the children. The district court judge had dismissed the suit, stating that the defendants had immunity under NRS 41.032(2). The law creates an issue like the McCarty-gap cases or the (prior law) Civil Service dual-compensation laws - the legal dispute affects fewer and fewer people over time, to a lesser and lesser degree, which will eventually (presuming it is expanded to cover the 10% to 50% disability cases) render the entire above body of case law to fodder for footnotes or to be raised only for analogy to other, current disputes. ther, the equitable problem in this scenario is that the parties have not been treated equally for that equal benefit to be received upon the death of the other, because the member is paying more but only getting about the same result. benefits would have no effect on a pre-existing division of military retired pay between the retiree and his former spouse; he would just get additional benefits. l percentages should be taken out to four digits after the decimal point. Since no SBP premiums are charged until actual retirement, this adjustment should only be made at the time of actual retirement, even if the former spouse is getting a time-rule portion of a member’s retirement benefits at the time of eligibility for retirement under Luciano/Gillmore/Gemma/Fondi. The Supreme Court rejected the wife’s claim as well. The Court concluded that the wife failed to rebut the presumption of gift by clear and convincing evidence. The Court noted that when separate funds of a spouse were used to acquire property in the names of the husband and wife as joint tenants, it was presumed that a gift of one-half of the value of the joint tenancy property was intended which could only be overcome by clear and convincing evidence citing to Gorden v. Gorden, 93 Nev. 494, 497, 569 P.2d 397 (1977). The Court held that the wife’s testimony, standing alone, was insufficient to rebut the presumption of gift. B> The continuing pressure from CCLS for the District Attorneys to comply with the statutes eventually led to the promise from the public agencies to begin collecting interest and penalties for the poor.1 CCLS was invited to participate in the "public workshop" convened by the Welfare Division on that subject in 2004. Essentially, in addition to calculating rough interest on a monthly basis, Welfare proposed to assess a single lump-sum ten percent penalty on the last day of the first month that a child support payment was due and unpaid, because NOMADS was capable of performing and tracking such a month-end calculation. You can find In Search of a Coherent Theoretical Model for Alimony Section I Introduction to Nevada Law of Child Custody and Visitation in Divorce The Marren and Page Case List McGlone v McGlone Rivero v Rivero Opinion Subsection Three Hearing on the Petition for Return Legal Separation Allowed The Marren and Page Case List Slack v Schwartz Adams v Adams and Swan v Swa Divison of Military Retirement Benefits In Divorce Section IV Subsection B Divorcing the Military and Serving the Civil Service Section III Subsection Divorcing the Military and Serving the Civil Service Section II Military Retirement Benefits Some Polotics in Attempted Service to the Poor Uniform Child Custody Jurisdiction Act and PKPA Marren and Page Case List The Marren and Page Case List Robinson v Robinson Wilford v Wilford and For Child Custody Jurisdiction in Nevada Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar The Marren and Page Case List Cord v Neuhoff Rivero State Bar Amicus Brief Part Two Subsection III C The Marren and Page Case List Lindsay v Lindsay Murphy v Murphy The Conundrum of Disposable Retired Pay In Search of a Coherent Theoretical Model for Alimony Section I available at lvfamilylawyer.com by clicking above. Site Map An Introduction to Pensions in Nevada Divorce Law Section V Division 50 50 or other The Marren and Page Case List Barrett v Franke Sly v Sly and Robison v Robi Las Vegas retirement law expert Divorcing the Military and Serving the Civil Service Section II Subsection The Ubiquitous Time Rule More Flavors than You Might Expect Nevada domestic violence specialist lawyer |