 
|
Military Retired Pay and the Dangers of REDUX
Learn more about Military Retired Pay and the Dangers of REDUX.
bdIt is worth pausing for a moment to clarify that any former spouse who will be the recipient of retirement benefit payments if her former spouse lives, but will not get such money if he dies, definitionally has an "insurable interest" in the life of the member (this is true for military or non-military cases). The matter is one of fact, not a matter of discretion, award, or debate.2 Anecdotal accounts indicate that some insurers are reluctant to issue private policies of insurance without some court order indicating that the intended beneficiary (the former spouse) is entitled to insure the life of the other party. Attorneys for former spouses should therefore make a point of reciting the fact of such an interest on the face of the decree. The report and recommendations from the mediator or panel should be created and transmitted hours or days ¨C not weeks, and sure as heck not months or years ¨C after a matter comes to hearing. The only way that the facts of the hearing can possibly be remembered, nevertheless reported and adjudged accurately and fairly, are when the information is fresh in the mind of the person or persons writing the report. If a judge started drafting a decision on a case three months after hearing the evidence, litigants would (justifiably) be screaming about it. The same standard applies here.¡¡ A place eligible to be the "home state" is a state within the United States, the District of Columbia, or extensions of our country.5 The UCCJEA also has an international application, as it includes foreign countries as if they were states within the United States, unless the child custody laws of that country violate fundamental principles of human rights.6 Japan is not recognized as such a place, and Japan therefore can, and should be, included within the scope of Nevada¡¯s UCCJEA. Both Nevada and Japan are therefore eligible to be the "home state." The Court has several options. First, the Court could allow the matter to proceed by motion in the existing Family Law case, allowing the aggrieved party to simply amend pleadings under NRCP 15 as necessary, and calling for supplemental briefings as required to "fill out" the record. bsp; 2. The courts are empowered, but not required, to trace back to a separate property source contributions to property held in joint tenancy that came from a separate property source, and order reimbursement to the contributing spouse. At the time of the marriage in 1979, the residence was owned by the husband. In 1984, the husband quitclaimed his interest in favor of himself and his wife as joint tenants in 1984, and the deed was recorded. The district court awarded the residence to the husband as his sole and separate property. The Court noted a transfer of title from husband to wife created a presumption of gift citing to Todkill v. Todkill, 88 Nev. 231, 237, 495 P.2d 629, 632 (1972). The Court held that this presumption could be rebutted only by clear and convincing evidence. The Court noted that it was well established that the existence of a valid deed in the form of joint tenancy raises a presumption that the parties intend to own the property as joint tenants, which may be rebutted only by clear and convincing evidence citing to Neumann v. McMillan, 97 Nev. 340, 629 P.2d 1214 (1981) and Peters v. Peters, 92 Nev. 687, 557 P.2d 713 (1976). The opinion of either spouse is of no weight. The Court held the husband had the burden of proving that the deed did not create a joint tenancy at the time it was prepared, signed and recorded. The only evidence is his testimony that he did not intend the deed to have any effect until the time of his death. The husband’s testimony was nothing more than his opinion, which was insufficient to rebut the presumption of joint tenancy created by the deed. The Court held that district court erred in finding that the presumption had thus been rebutted by clear and convincing evidence. Scenario eight shifts the reduced premium the other way, to the member, for the same reasons, and to the same effect, as set out in scenario four, but with smaller totals, since the spousal survivorship interest has been reduced.3 As we have previously stated, the fixed child-care expenses incurred by each parent are usually not appreciably diminished as a result of shared custody. "The sad reality that must be faced is that the desirable sharing of custody responsibilities by [another] custodian in joint custody situations has the inevitable result of increasing total child-related expenses." Nonetheless, we must still attempt to maintain the comparable lifestyle of the child between the parents' households. It is worth pausing for a moment to clarify that any former spouse who will be the recipient of retirement benefit payments if her former spouse lives, but will not get such money if he dies, definitionally has an "insurable interest" in the life of the member (this is true for military or non-military cases). The matter is one of fact, not a matter of discretion, award, or debate.2 Anecdotal accounts indicate that some insurers are reluctant to issue private policies of insurance without some court order indicating that the intended beneficiary (the former spouse) is entitled to insure the life of the other party. Attorneys for former spouses should therefore make a point of reciting the fact of such an interest on the face of the decree. Several State courts have held that the interest of a former spouse in retired pay is realized at vesting,6 theoretically entitling the spouse to collect a portion of what the member could get at that time irrespective of whether the member actually retires.7 As phrased by the 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 The Arizona Court of Appeals was more direct in In re Gaddis,4 when it held that divorce courts were only required to find reductions in military pay benefitting the member to bar compensation to the spouse if those reductions in retired pay existed when the award to the former spouse was made. The court saw the proscription of Mansell - that the USFSPA "does not grant state courts the power to treat as property divisible upon divorce military retired pay that has been waived to receive veterans’ disability payments" - as a call to essentially take a snapshot when the award to the spouse is made. If sums of disposable retired pay had been waived up to that point, they were not divisible. Where a member sought a post-divorce reduction in retired pay, however, his efforts at re-characterization were seen as attempting a "de facto modification" of a final property award, which state law did not permit.5 North Carolina went further than any other State in 2007 when it passed fairly sweeping legislation designed to "protect servicemembers."8 The new law allows expedited hearings upon the request of a servicemember, lets a court use electronic testimony when the servicemember is unavailable, allows a court to delegate the visitation rights of the servicemember to another family member, and requires that any temporary custody order entered upon a member’s deployment end within ten days of the member’s return, and that his or her absence due to deployment may not be used against the servicemember in a change of custody hearing. The USFSPA is both jurisdictional and procedural; it both permits the State courts to distribute military retirement to former spouses, and provides a method for enforcement of these orders through the military pay center. The USFSPA itself does not give former spouses an automatic entitlement to any portion of members’ pay. Only State laws can After 25 year marriage in which wife was traditional homemaker for 20 years and had a high school education, parties divorced. The husband and his counsel represented that proposed property division was "essentially equal" distribution of assets; the wife was unable to verify value of the pension during divorce pendency, and relied on husband’s attorney’s representation. After divorce (within 6 months), the wife learned she had received about 29 percent of total asset value and moved to set aside property distribution under NRCP 60(b). The referee recommended setting aside; husband objected. The district court sustained objection and vacated the referee’s findings and recommendations. From anecdotal evidence, and the reported cases, it happens all the time. The lure for the retired member is huge; not only does he change every affected dollar from taxable retired pay to a dollar of tax-free VA disability pay, but the former spouse effectively contributes a portion of each such dollar, exactly equal to whatever percentage she received of the retirement benefits divided upon divorce, and paid to the retiree out of the money she would otherwise receive every month. The husband’s separate property was improved by the construction of a swimming pool. The swimming pool was paid for by the separate funds of the wife. The district court did not reimburse the wife for its cost reasoning that the law presumed a gift from the wife to the husband of the swimming pool cost, which was not rebutted. B> While the facts are as varied as the number of cases, it has been our experience that many international abductors are truly miserable people, who rationalize their misbehavior by recourse to arrogant belief in personal, or even divinely-inspired, authority to defy rules, courts, orders, and borders because they "just know" that they are right and everyone else is wrong. In that respect, the filing of a tort suit against the kidnaper might be the first time in the parties’ relationship that the aggressor is on the defensive, and a traditional victim in a relationship is empowered. In determining custody of a minor child ... the sole consideration of the court is the best interest of the child." NRS 125.480 (1). The Legislature created a presumption that joint legal and joint physical custody are in the best interest of the child if the parents so agree. NRS 125.490(1). The policy of Nevada is to advance the child's best interest by ensuring that after divorce "minor children have frequent associations and a continuing relationship with both parents ... and [t]o encourage such parents to share the rights and responsibilities of child rearing." NRS 125.460. To further this policy, the Legislature adopted the statutes that now comprise NRS Chapter 125 to educate and encourage parents regarding joint custody arrangements, encourage parents to cooperate and work out a custody arrangement before going to court to finalize the divorce, ensure the healthiest psychological arrangement for children, and minimize the adversarial, winner-take-all approach to custody disputes. Mosley, 113 Nev. at 63-64,930 P.2d at 1118; Hearing on S.B. 188 Before the Senate Judiciary Comm., 61st Leg. (Nev., Feb. 12, 1981) (Senator Wagner's comments) (discussing parents reaching an agreement before coming to court); Hearing on S.B. 188 Before the Assembly Judiciary Comm., 61st Leg. (Nev., Apr. 2, 1981) (summary of supporting information) (enumerating flaws in the old statute). Using the following paragraph will protect the former spouse interest in military retired pay in the event that the employee waives the military retired pay to allow crediting the military service under CSRS or FERS. The paragraph should only be used if the former spouse is awarded a portion of the military retired pay. "If [Employee] waives military retired pay to credit military service under the Civil Service Retirement System, [insert language for computing the former spouse’s share from 200 series of this appendix.]. The United States Office of Personnel Management is directed to pay [former spouse]’s share directly to [former spouse]. According to the plain language of Nevada Constitution Article 6, Section 20(2), the expiration of the term of any judge appointed pursuant to Section 20(1) should be calculated as of the date of the appointment. On the date of the appointment here at issue, however, the deadline to make changes to the ballot for the next general election had already expired, three days earlier (on August 19, 2008), making it impossible for the voters to fill the vacancy in Department D via the November 4, 2008, general election. It’s a job I know pretty well; I had the job of a Central Staff Attorney as my first out of law school. But the game has changed, somewhat, since the early 1980s - the Central Staff is much larger than it used to be, and part of the Court’s adaptation to its increased size, huge case load, and lack of an intermediate appellate court has been to rely ever more heavily on Central Staff for substantive expertise in discrete practice areas. a) The petition or comparable pleading in this state is filed before the expiration of the time allowed in the other state for filing a responsive pleading challenging the exercise of jurisdiction by the other state; If a prima facie case is made for deviation in either direction, a further step is required, to see if the benefit that would be enjoyed by the deviation-seeking parent and the child is greater than the detriment that would be suffered by the other parent and the child, or the benefit would be less than the detriment, or if the benefit and detriment were equal. As to both loans and withdrawals, the Federal Retirement Thrift Investment Board will honor "most" court orders restricting distribution (such as preliminary injunctions prohibiting withdrawals) or safeguarding funds for other purposes (such as child support or alimony awards). Thus, in divorce cases or successive spouse cases, there could be some element of a "race to the courthouse," with the non-employee spouse trying to get a restraining order on file and served on the TSP before the employee can withdraw the funds.4 Wallace v. Wallace, 112 Nev. 1015, 1019,922 P.2d 541,543 (1996). District courts have broad discretion in child custody matters, but substantial evidence must support the court's findings. Ellis, 123 Nev. at 149, 161 P.3d at 241-42. Substantial evidence "is evidence that a reasonable person may accept as adequate to sustain a judgment." Id. at 149, 161 P.3d at 242. B> For most of the history of modern humans, we have been concerned with regulation of relationships between bonded pairs. Some anthropologists even consider pair bonding one of the defining characteristics marking the evolution of our species in differentiation from our hominid ancestors and cousins.1 Shared physical care", for the purposes of the child support guidelines and schedule of basic child support obligations specified in this section, and as further specified in paragraph (b) of subsection (8) of this section, means that each parent keeps the children overnight for more than ninety-two overnights each year and that both parents contribute to the expenses of the children in addition to the payment of child support. Because shared physical care presumes that certain basic expenses for the children will be duplicated, an adjustment for shared physical care is made by multiplying the basic child support obligation by one and fifty hundredths (1.50). In cases of shared physical care, each parent's adjusted basic child support obligation obtained by application of paragraph (b) of subsection (7) of this section shall first be divided You can find Military Retired Pay and the Dangers of REDUX Divorcing the Military and Serving the Civil Service Section II Subsection The Marren and Page Case List Slack v Schwartz Adams v Adams and Swan v Swa Hedlund Amicus Brief Discussion of Issues Requested The Marren and Page Case List Marine Midland Bank v Monroe York v York and The Marren and Page Case List Smith v County of San Diego and Vix v State o Child Custody Initial Jurisdiction Ogawa Amicus Brief Statement of Facts Rivero v Rivero Opinion Section II A FERS expert lawyer The Rivero Formula Exhibit Three Military Retired Pay and the Dangers of REDUX available at lvfamilylawyer.com by clicking above. Site Map Feral Paralegals The Marren and Page Case List Johnson v Steel Inc The Marren and Page Case List Petition of Fuller Rivero v Rivero Opinion IV B Subsection Two The Marren and Page Case List In the Matter of Parental Rights as to J L N New Uniform Child Abduction Prevention Act UCAPA Major Military Divorce Cases |