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We then turn to private retirement plans, governed by ERISA, and turn to the alphabet soup of the REA, QDROs, QJSAs, etc., from payment options to beneficiary selection. The intent of this section is to allow divorce practitioners to identify and address the issues that should be resolved during divorce litigation, to reduce the amount of post-divorce litigation that often proves so expensive. We then turn to private retirement plans, governed by ERISA, and turn to the alphabet soup of the REA, QDROs, QJSAs, etc., from payment options to beneficiary selection. The intent of this section is to allow divorce practitioners to identify and address the issues that should be resolved during divorce litigation, to reduce the amount of post-divorce litigation that often proves so expensive. 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 dependent or a specified percentage of the BAH and certain other benefits.5 SUP> The Assembly, however, added a provision indicating that the legislation would only affect cases filed on or after the date of enactment. The "interested parties" turned their efforts to trying to eliminate that provision of the bill,6 with Ms. Cooney stating that the time-rule was adopted from California, but that it "in reality is not well-suited to Nevada."7 B> There was a twenty month "gap" between the McCarty decision and the congressional enactment of the USFSPA. The act was expressly made retroactive to the start of the gap P> In other words, if you owe money to Best Buy, and don’t pay on time, they hit you up with a late payment fee. And if you don’t pay the bill by the next month? They charge you again - every time a billing cycle passes without you making the payment you owed originally. The SBP is funded by contributions taken out of the member’s retired pay. For members entering service before March 1, 1990, premiums are the lesser of the amount computed by two tests. First, 2.5% of the first $57211 of the base amount, plus 10% of the remaining base amount. Second, 6.5% of the base amount. For members entering service on or after March 1, 1990, SBP premiums are 6.5% of the base amount. Premiums continue indefinitely. Beginning October, 2008, however, SBP premiums stop, with benefits still fully payable, once premiums have been paid for 30 years and the member reaches the age of 70.12 It is certainly not the State Bar employees running the fee dispute resolution program. They have been universally friendly, responsive, and helpful. But they have no authority to actually get anything done. SUP> The marriage itself is a defining moment. Even though the deed preceded the marriage ceremony, it is hard to believe that any court would use the various tracing tools discussed above to look past the fact of jointly-titled real estate owned by two married parties,7 and the reasonable expectation would be an equal division of the house value upon divorce. The traditional view that "Fluffy" is just a chattel has recently been challenged across the nation. Lawsuits are being filed challenging the longstanding view of the treatment of pets in divorce proceedings. Many states even have recent case law on this hotly debated topic. If the parents are using the Parenting Time Guidelines without extending the weeknight period into an overnight, the noncustodial parent will be exercising approximately 98 overnights. The Supreme Court reversed. The Court concluded at the outset that because the issue of child support abatement was not properly before the district court, it was unnecessary to determine whether the district court abused its discretion by abating child support during the summer when the children were visiting. The Court, however, decided to reiterate its position on the issue. The Court again cited to Lewis v. Hicks, 108 Nev. 1107, 1112, 843P.2d 828, 831 (1992) and noted that the limits of a district court’s discretion in deviating C) the court order or other documents served with the court order identify the member concerned and include, if possible, the social security number of such member; and If the court declines to allow a stay of proceedings, it is required to appoint counsel to represent the member,4 but the SCRA is silent as to the duties of the appointed attorney, or how such a lawyer should get paid, if at all. The U.S. Supreme Court has made the lives of plan administrators easier, made the lives of divorce lawyers harder, and resolved a couple of questions while leaving others enormously unsettled and uncertain. Quoting at length from a law review article analyzing the mathematics of the situation, the court found that acceptance of the husband¡¯s argument would have allowed him to collect the entirety of the accumulating "earnings" on the marital property accumulated by both parties. Three judges dissented.5 Where a court does decide to deviate because of extraordinary visitation, the court may deviate only for those expenses above and beyond the expenses that the guidelines presume the noncustodial parent will pay. In other words, since the guidelines assume 20% custody in the basic figures, where parents share custody 50% 50%, the adjustment should be only the extra 30%, not 50%. Prosser v. Cook, 185 Wis. 2d 745,519 N.W.2d 649 (Ct. App. 1994). See also Matula v. Bower, 634 N.E.2d 537 (Ind. Ct. App. 1994) (court would not deviate additionally for father's claimed clothing, medical, and education expenses, where court already reduced presumptive award by 10% to account for expenses associated with extended visitation). Especially when they were new, there was some question as to whether VSI and SSB benefits were, or should be, divisible as marital or community property because (as with the CSB/REDUX) there is no explicit mechanism for division of the payments with a spouse. P> The parties married while attending college. They moved to California where the wife commenced teaching and the husband continued with his schooling and was not gainfully employed. The husband obtained both a private pilot’s license and a flight instructor’s license at the expense of the community. The parties moved several more times, with the husband serving as a Navy pilot on active duty and then with the Reserves, becoming a charter pilot and obtaining two degrees on the G.I. Bill. The wife taught school, and obtained a Master’s degree. The parties divorced in 1992 after a 27 year marriage, at which time the husband was a 48 year old commercial airline pilot and the life was a 47 year old reading specialist with the Clark County School District. The wife received a two year rehabilitative alimony award, and both parties appealed. B> The first important work in Nevada seeking to address the subject of child support was the 1985 report of the Nevada Commission on Child Support Enforcement, which was given to Governor Richard H. Bryan in October, 1985. It included the topic of "establishment of child support guidelines" as one of eight issues requiring further study 1 This was part of the nation-wide dialogue, spurred by federal studies and statutes, designed to improve the adequacy, consistency, and predictability of child support awards throughout the country." Second, some states provide that once a threshold amount of visitation in excess of the "ordinary" 20% visitation is met, the support will be adjusted on a sliding scale to reflect the amount of time the children spend with each parent. Again, these states are making an assumption that when substantial amounts of time are spent with the child, then the costs to the noncustodial parent go up. The thresholds vary from state to state. For example, in Alaska, the threshold is 30% visitation; in Colorado, the threshold is 92 overnights; the District of Columbia requires 40% visitation; in Maryland, the proportionate calculation does not come into play until the child spends 35% of the time with the noncustodial parent; in Michigan, the threshold is 128 days; in North Carolina, the threshold is 123 days; in Oregon, the threshold is 35% custody; in Utah, the threshold is overnight visitation for more than 25% of the year; in Vermont, the threshold is 30% custody. We are increasingly troubled by the trend of parties to leave divorce court with an agreement that settles property and alimony matters, only to immediately walk down the street to the federal courthouse and attempt to relitigate those issues. Such actions call into question the good faith of the parties and their counsel and raise thorny issues of comity and finality of judgments, to say nothing of attempting to make the bankruptcy court into some type of appellate divorce court. We do not think Congress intended this result when it enacted § 523(a)(5). While we recognize that certain marital debts and obligations are and should be dischargeable, we do not believe that § 523(a)(5) gives one spouse carte blanche to retain marital property at the other spouse’s expense.1 Primary physical custody arrangements may encompass a wide array of -circumstances, As discussed above, if a parent has physical custody less than 40 percent of the time, then that parent has visitation rights and the other parent has primary physical custody. Likewise, a primary physical custody arrangement could also encompass a situation where one party has primary physical custody and the other party has limited or no visitation. See Metz, 120 Nev. at 788-89, 101 P.3d at 781 (describing a primary physical custody situation where the nonprimary physical custodian had visitation every other weekend). The essential lesson of this jurisdictional point (for the spouse) is to never take a default divorce against an out-of-state military member if seeking to divide the retirement benefits. The resulting judgment will not be enforceable; if valid jurisdiction under both State and federal law cannot be achieved, then the action may have to be dismissed and re-filed in the State in which the military member resides. The short answer is "yes." The only fair reading of NRS 125.155(2) is permissive,1 and obviously, if a court "may" do something, it can just as easily not do it. A secondary issue is raised by the issuance of the Sertic and Wolff opinions after the effective date of the statute, however. The lesson for individuals who obtained retirement benefit division orders from someone who might not be entire informed in the field is to have those orders checked - preferably before retirement, and certainly before anyone dies, at a consultation with this office or someone else the time and effort to be well versed in the field. Whether everyone is living happily together or not, if the member dies before a divorce is final,1 the spouse is the recipient of certain benefits made available for the survivors of active duty military personnel, under 38 U.S.C. § 1311(a), which created a program called Dependency and Indemnity Compensation ("DIC"). DIC payments have been payable to the survivors of any veteran who died after December 31, 1956, from a service-connected or compensable disability.2 DIC payments are not made to persons divorced from members.3 B> While the presence or absence of a significant separate property estate by one of two married persons might be of interest to a Nevada divorce court considering an award of alimony, it is technically irrelevant to Nevada community property law. Day v. Day, 80 Nev. 386, 395 P.2d 321 (1964) The decree approved, adopted, and confirmed a written agreement which provided for the wife’s future support. The agreement itself provided that it was not to be merged into any decree entered later. The decree did not itself state that the agreement was not merged, nor did it expressly provide that the agreement survive the decree. The Court held that the adoption of an agreement effectuates a merger of the agreement into the decree entered. A merger destroys the independent existence of the agreement and the rights of the parties thereafter rest solely upon the decree. The Court also held that a survival provision of agreement is ineffective unless the court decree specifically recognizes its survival. The Supreme Court held the principles of res judicata barred the mother from reasserting an action to determine paternity or compel support, but that the child was not so barred. In addition, the child or the State may seek to modify the provisions of a compromise agreement intended to provide the child with support to the extent that the judgment or order is being enforced in this state, and the state of Nevada may provide that all such orders are modifiable. The Court also held that nothing in Nevada’s Parentage Act barred the child or an appropriate public agency in another state from seeking to compel additional support in a later action instituted in another state. The Court further held that the provisions of 125B mandating periodic review of orders for the support of a child apply to the provisions of a compromise agreement entered into pursuant to NRS 126.141(1) (b). There is a question whether the "broad discretion" accorded to trial courts in making property distributions under the pre-1993 law has been changed in any meaningful way by the change from "equitable" to "presumptively equal" division. The matter could probably be argued either way. There is plenty of authority for the proposition that the legislative change reduced the scope of judicial discretion to make unequal distributions, since legislative enactments are to be construed so that "no part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly be avoided."6 On the other hand, the new statutory construction still appears to be leave plenty of wiggle room. 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. Parties are free to contract, and the courts will enforce their contracts if they are not unconscionable, illegal, or in violation of public policy. See D.R. Horton, Inc. v. Green, 120 Nev. 549,558,96 P.3d 1159, 1165 (2004) (citing unconscionablility as a limitation on enforceability of a contract); NAD, Inc. v. Dist. Ct., 115 Nev. 71,77, 976 P.2d 994, 997 (1999) (stating "parties are free to contract in any lawful matter"); Millerv. A & R Joint Venture, 97 Nev. 580, 582, 636 P.2d 277,278 (1981) (discussing public policy as a limitation on enforceability of a contract). Therefore, parties are free to agree to child custody arrangements and those agreements are enforceable if they are not unconscionable, illegal, or in violation of public policy. However, when modifying child custody, the district courts must apply Nevada child custody law, including NRS Chapter 125C and caselaw. NRS 125.510(2) (discussing modification of a joint physical custody order); Ellis, 123 Nev. at 150, 161 P.3d at 242 (discussing modification of a primary physical custody order). Therefore, once parties move the court to modify an existing child custody agreement, the court must use the terms and definitions provided under Nevada law, and the parties' definitions no longer control. In this case, Ms. Rivero moved the district court to modify the decree. Therefore, the district court properly disregarded the parties' definition of joint physical custody. However, if the military member had a combat-related disability award, and so took CRSC rather than CRDP (which in come circumstances could lead to higher monthly payments), all the waiver-for-disability case law remains applicable. The reason is that, to receive the CRSC, a member must waive military retired pay, and that category of pay, like VA benefits, are not divisible. So while SUP> It is for this reason that State divorce courts can, for example, order that a spouse of a military member is entitled to 100% of the retirement benefits, although disposable retired pay is defined by federal law as not more than 50% of such benefits.8 It is why a court can order a retiree who has waived military retirement benefits for disability, as allowed under the federal retirement scheme, to nevertheless personally pay to the former spouse the amount that is not directly payable by the federal pay center.9 B> Fern v. United States was an unusual case in that 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 contracts with the United States (by which the members contended that they alone were to receive the entirety of their retirement benefits), and that spousal awards under the USFSP A were due process violations. B> Mansell v. Mansell, 490 U.S. 581, 109 S. Ct. 2023 (1989), discussed at length above, held that the Act did not constitute a total repudiation of the pre-emption found by the Court to exist in McCarty. Congress did nothing to alter this finding when it next amended the Act in 1990. Thus, Mansell is often read to stand for the proposition that the subject matter jurisdiction of the state divorce courts is limited to division of the disposable retired pay of members. This may be less important than was thought at the time, however, since courts have widely expressed a willingness to consider the impact of disability or other retired pay not considered disposable retired pay, when dividing assets between spouses. The parties separated and entered into a property settlement agreement which provided for the payment of child support and spousal support. After the husband filed for divorce, he stopped making payments. The district court ordered support pendente lite and at a level lower than required in the agreement. The wife sought to reduce the arrears to judgment. The Court held the district court was without discretion to modify those arrears for support that had accrued to the time the court made its own support order when the decree of divorce was entered.

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