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Federal courts have historically been reluctant to get involved with domestic cases and are less likely to treat a Hague Petition like a traditional custody case - a mistake often made by state courts accustomed to hearing divorce cases. The petitioner, or petitioner’s counsel, might also have a belief that a potential forum has a bias - against petitioner, counsel, or even against giving Hague Convention cases proper and prompt consideration. From there, it is not much of a stretch to say that the judicially-created cause of action belongs in the court assigned the tasks to which the analogy applies. Community property is dealt with in NRS Chapter 125, for which the family courts have exclusive jurisdiction. Cases involving disposition of property "by analogy" to that chapter likewise belong in family court. 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). Notwithstanding the protections for members, courts have been less than indulgent of attempts to use the SCRA as a tactical weapon. In Lenser v. Lenser,3 the parties had separated, but did not yet have a custody order; the child was primarily living with the non-military spouse, but visiting briefly with the member. The Arkansas Supreme Court was unimpressed by the attempt of the member to transfer custody to the child’s grandmother by dropping her off there and seeking a stay. 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. bsp; a. While case law is somewhat contradictory, the clear trend of modern opinions is to consider the parties tenants in common of any asset not distributed in the decree, allowing a later suit for partition at any time. 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 UP> It is possible for a former spouse to contest the discharge in bankruptcy of an obligation to remit to the former spouse a portion of retired pay, by attacking it as a "fraud while acting in a fiduciary capacity" or a tortious "debt for willful and malicious injury."1 Litigation in bankruptcy court may cause that court to carry into effect the divorce court’s orders.2 At least one court has held a designation of the former spouse as the Survivor’s Benefit Plan beneficiary was a non-dischargeable transfer and not a "debt" subject to discharge in bankruptcy.3 It could be concluded that these cases stand for the proposition that it makes no difference how or why the member reduces a divorce court’s award to a former spouse - the fact that he does so mandates that compensation be provided. The cautious practitioner, however, cannot presume that a reviewing court will reach the same result, and so 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 standard form clauses are intended to provide a statement of such intent. B> As a general proposition, spouses should try to begin receiving payments as soon as possible once the right to do so accrues. Military retired pay is not like a defined contribution plan with a specific balance;22 it is a like a defined benefit plan in that it provides a stream of payments that can be tapped for a present spousal share, but which has no mechanism for collecting property payments once they are missed. In other words, any arrears in military retirement benefits payments must be collected from the member directly; the military will not garnish for such arrearages. The wife argued that the commingling of the community and separate property was so extensive that the husband failed to sustain his burden that the separate property was not transmuted into community property. The district court declined to accept the wife’s contention. Federal courts have historically been reluctant to get involved with domestic cases and are less likely to treat a Hague Petition like a traditional custody case - a mistake often made by state courts accustomed to hearing divorce cases. The petitioner, or petitioner’s counsel, might also have a belief that a potential forum has a bias - against petitioner, counsel, or even against giving Hague Convention cases proper and prompt consideration. 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 B> Presuming the petitioning parent establishes that another country was the habitual residence of the child at the time of the childfs removal or retention, the next question is whether the left-behind parent had "rights of custody" regarding that child. The Hague Convention provides three potential sources of custody rights: (1) operation of law, (2) judicial or administrative decision, or (3) an agreement having legal effect under the law of that State.1@ The wife died intestate in February 1934. The wife was survived by her husband and daughter. The husband was made the administrator of the estate. The husband, as the administrator, requested distribution of the estate which was primarily two fractional city lots which he claimed were community and should be distributed to him as the surviving husband. The daughter objected claiming that the property was the separate property of her mother. The district court decided that the property was community property. No QDRO is required for a TSP distribution; the TSP will honor any order that expressly relates to the TSP account of the participant, has a clearly determinable entitlement to be paid, and provides for payment to some person other than the TSP participant. This includes payments directly to the attorney for the former spouse. Attorneys drafting TSP orders should note that plan balances are always calculated on the last day of the month. 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." 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. 5. Where either an increase (under NRS 125B.080(4) ) or reduction in the formula amount is ordered, the deviation from the formula should be supported by written findings of fact and a statement of reasons. Id. at 552. 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 Connecticut¡¯s mandatory filing fee for obtaining a divorce on both due process and equal protection grounds: 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. Finally, we address Ms. Rivero's motions for recusal and disqualification, and the district court's award of attorney fees to Mr. Rivero arising from those motions. Most courts were unaware that the payments ordered were being skewed by the phrasing of the USFSPA and the tax code, and simply had no idea that their orders were not being followed, or that further court attention would be required to correct any resulting inequity. Former spouses did not receive a Form 1099 or W-2P, and many did not realize that it was their responsibility to account for, and pay taxes on, all sums they received.1Many members did not realize that they had a yearly tax credit coming, or how to calculate it. D) If a prima facie case is made for deviation in either direction. determine whether the benefit that would be enjoyed by the deviation-seeking party and the child is greater, lesser, or the same as the detriment that would be suffered by the other pm1y and the child. Only where the benefit is greater than the detriment - usually measured by comparison of household income would the deviation be granted. Find out where the member last voted; registering to vote usually requires an affirmation of either domicile or residency in the jurisdiction in which the vote is to be cast. Again, when the registration to vote was made could be important, as well as how recently it had last been relied upon. For 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. 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. 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. Does it contain language which authorizes the system to provide specific information to the alternate payee from the retirement file of the member? (In lieu of this provision, the member may file a waiver which allows the ex-spouse to review the memberfs file. The waiver must be submitted with the QDRO.) 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 child’s expenses. B> Fern v. United States, 15 Cl. Ct. 580 (1988), aff’d, 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. 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 B> Again, the vagaries of the facts presented (and the realities concerning local courts) will drive the determination, but international child abduction cases are likely, by their nature, to give rise to both diversity of jurisdiction and to satisfy amount-in-controversy limitations. Counsel should give serious consideration to filing in federal court. 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. The Court overturned the presumption that, a parent who commits adultery is unfit as a matter of law. The facts were that mother was awarded primary custody even though lived with a man she later married. The Court overruled Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961). B> One final difference of perspective merits explicit mention. The A.G.’s "Friend of the Court" brief in Vaile raised the question of an "equal protection" issue raised by the fact that in cases such as that of Mr. Vaile, Welfare would assert a much lower penalty sum than the private Bar tabulates. On that basis, Welfare asserted that the Family Law Bench and Bar should adopt the NOMADS methodology so that the low income persons typically involved in Welfare cases are not treated any differently than they would be in Family Court.

You can find Nevada TSP lawyer Divorcing the Military and Serving the Civil Service Section II Subsection Rivero v Rivero IV C Ogawa extending time to file under UCCJEA The Marren and Page Case List Robinson v Robinson Wilford v Wilford and For Rivero v Rivero Opinion CONCLUSION Valuation of Military Retirement Benefits Divison of Military Retirement Benefits In Divorce Section VI Subsection B Rivero v Rivero Opinion Section II A The Marren and Page Case List Bemis v Estate of Bemis Siragusa v Brown Divison of Military Retirement Benefits In Divorce Section V Subsection C Protecting the Interest of and Getting Money from People in th Military Wha Rivero v Rivero IV B Subsection One 10 USC 1408 Uniformed Services Former Spouses Protection Act The Marren and Page Case List Trubenbach v Amstadter Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar The Marren and Page Case List Engebretson v Engebretson Hybarger v Hybarger Introduction to Nevada child support law The Marren and Page Case List Lombardi v Lombardi Giorgi v Giorgi Hopper v Division 5050 or Other The Rivero Formula Exhibit Three Rivero v Rivero Opinion Subsection Three Nevada TSP lawyer available at lvfamilylawyer.com by clicking above.

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Nevada divorce and family law Legal Authority For Use in Requesting Fees in a Pro Bono Case Time to distinguish enterprise and personal goodwill The Marren and Page Case List Mack Ashlock The Special Problem of Divorce Decrees Entered in Foreign Countries as to D The Marren and Page Case List Lemkuil v Lemkuil Divison of Military Retirement Benefits In Divorce Section X Subsection C