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Notable Domestic Relations Cases
Learn more about Notable Domestic Relations Cases.
Adpotion equitable Frye v Frye Hermanson v Hermanson and Russo v GardnerWhether States follow a "payment upon eligibility" or "payment upon divorce" rule is another one of those doctrines which is not at all obvious from the label applied by the individual States, but again is usually hidden in their decisional law. Which way the State goes on this question can have a huge impact on the value of the retirement benefits to each spouse. The question is sometimes asked whether these rules are really as clear, and "harsh," as they seem. For example, what if parents had been separated for more than six months, with the custodial parent and children living elsewhere, and the non-custodial parent living in Nevada, but they agreed that they wanted to go through a single, simple joint petition divorce here in Nevada disposing of all issues? 65279;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. 4. a. The percentage of time a child spends with each parent shall be calculated by determining the number of overnights for each parent and dividing that number by three hundred sixty-five (365). The Court further held that the district court manifestly abused its discretion when it incorrectly concluded it need not make such a determination. The Court concluded the habitual residence of the children was Norway and that the children were wrongfully removed from that country and held the Hague convention required the district court to make a determination under the terms of the convention. As noted above, the home state of a child is given priority in making an initial custody proceeding, but it is still possible for a state that is not the home state to make such an order. The remaining bases are in declining order of priority. Unfortunately, the information posted by DFAS, while technically accurate, is somewhat misleading to a practitioner trying to find a simple route to collect a child support order. For example, the DFAS web site4 giving instructions for collecting "child and/or spousal support" from "active, reserve, and retired members of the military" (and civilian employees of the Federal government) does not mention the simple process above for collecting child support from military retired pay. Scenario six therefore is the same "default" as set out in scenario two, the only difference being that the base amount is lowered, from the entire retirement benefit, to only that portion of which 55% would equal the former spouse’s lifetime interest, in this hypothetical case, $454.55.8 Since the 6.5% premium is reduced to only $29.55, the member’s 75% of the $970.45 of remaining "disposable retired pay" yields $727.84, and the spouse’s 25% yields $242.61. The member effectively pays $22.16 toward the premium cost, and the spouse pays $7.39. Technically, the case involved appeal of a default judgment entered by the family court judge (Del Vecchio), which that court had refused to set aside. But on appeal, the case turned on the question of jurisdiction. Accordingly, the USFSPA included special jurisdictional rules that must be satisfied in military cases to get an enforceable order for division of the benefits as property. In other public and private plans, any state court judgment valid under the laws of the state where it was entered is generally enforceable to divide retirement benefits; this is not true for orders dividing military retirement benefits as property. The rules do not restrict alimony or child support orders, which will be honored if the state court had personal and subject matter jurisdiction under its own law. The special jurisdictional rules discussed above are applicable in partition cases. According to most courts that have ruled on the question, the jurisdictional test is to be applied in the present (i.e., when the current action is commenced) as opposed to considering what jurisdiction was established during the original divorce. Oddly, the federal courts have been willing to permit state-court long-arm jurisdiction where the states themselves find they cannot exercise it. For many years, members of Congress introduced "concurrent receipt" bills of various sorts seeking to repeal, to a greater or lesser extent, the requirement of waiver of longevity retired pay in order to receive disability pay. Of course, any such program would cost the government the entirety of the additional VA payment, which is why it was resisted so strenuously for so long. Hay and Michoff were tried before the family courts existed; that distinction is the only one necessary to explain why the earlier were filed where they were filed. B> As noted by the FLS in its February 28, 2008, Amicus Curiae Brief ("First Brief"), Missouri defines a time share as "joint physical custody" based on the vague and subjective basis of whether the time share is "significant but not necessarily equal." 7 The FLS suggests that the meaning of "joint physical custody" may be improved by the following clarifications. If the worker has not yet retired, than all options should remain available - whether to divide the retirement interest itself, or just the payment stream, whether a Qualified Joint and Survivor Annuity ("QJSA") is called for, or should be waived, etc. If the retirement is in pay status, however, then many options are probably foreclosed, since it is not possible to change those options under most ERISA-governed plans (the plan having committed to a payment stream calculated to reflect the actuarial projections of the options selected). The Supreme Court affirmed. The Court noted and concluded that there was nothing in the statutes to prevent the district court from awarding an additional amount of child support based on some factor other than increased need. The Court noted the factors cited by the district court fell within those listed in NRS 12SB.080(8) as factors that the district court should consider when adjusting the amount of child support. The Court further noted the extensive evidence of wealth of the father which included income tax returns and property holdings. The Court concluded that the district court did not abuse its discretion in making the child support award in excess of the statutory amount based on these factors. Whether States follow a "payment upon eligibility" or "payment upon divorce" rule is another one of those doctrines which is not at all obvious from the label applied by the individual States, but again is usually hidden in their decisional law. Which way the State goes on this question can have a huge impact on the value of the retirement benefits to each spouse. Colorado X Practitioners therefore must be careful in all reservist cases; they should be wary in a case involving reserve component service of any calculations that presuppose the typical "years of marriage divided by years of service" formula. Since point accumulation might have been intermittent, significantly different spousal percentages could be obtained by the two methods of figuring. Note that the amended (prior) regulations in 32 C.F.R. § 63.6 specifically directed dividing reservist’s retirements by points accrued during marriage, rather than duty time during marriage; that directive appears to remain in all military guidelines, and will presumably be permanently added to the regulations when they are finalized. So the father tried again, this time in federal court, and expressly under the Convention and ICARA. The federal judge, however, found that the father’s visitation and ne exeat rights were those of "access," not "custody," and therefore found that return was not authorized under the Convention. The Fifth Circuit affirmed, using a dictionary definition of "custody" and finding that a ne exeat right could not be "actually exercised" within the meaning of the Convention. Noting a split in the federal Circuits, the United States Supreme Court granted certiorari. Accordingly, the USFSPA included special jurisdictional rules that must be satisfied in military cases to get an enforceable order for division of the benefits as property. In other public and private plans, any State court judgment valid under the laws of the State where it was entered is generally enforceable to divide retirement benefits; this is not true for orders dividing military retirement benefits as property. The rules do not restrict alimony or child support orders, which will be honored if the State court had personal and subject matter jurisdiction under its own law. Like many other retirement systems, PERS includes provisions for cost of living adjustments over time. Unlike most other systems, however, the COLA provisions can be (and usually is) fixed, unrelated to inflation, actual cost of living, or any other economic information. PERS provides for post-retirement cost of living adjustments, based upon the lesser of the CPI average or at 2% per year after three full years, 3% per year after six years, 3.5% per year after nine years, 4% per year after 12 years, and 5% per year after 14 years.7 65279;There are lump-sum distribution options from the plan (if $3,500 or less, the full fund balance is automatically distributed at the time of separation from service). More importantly, hardship loans up to $50,000 are available against the plan balance, and a specific category of hardship for loan purposes is "unpaid legal costs associated with a separation or divorce." Presumably, a developing disability would likewise qualify as a "hardship." The rules for modifying child custody orders, on the one hand, and child support orders, on the other, are radically different. As set out above, when all parties leave the State establishing a custody order, the Home State of the child becomes the central inquiry. Not so for a child support case. When all parties have left the State with CEJ over child support, they are both entitled to enforce the support anywhere they choose to register it. In order to modify it, however, each has precisely the same burden - to register in and move to amend where the other party (custodian or non-custodian) happens to be living.1 Most of the States employing a standard qualitative time-rule division of retirement benefits hold that the interest of a former spouse in retired pay is realized at eligibility for retirement, entitling the spouse to collect a portion of what the member could get at that time irrespective of whether the member actually retires.1 Most such holdings have employed some variation of the phrasing used 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 District courts should be advised to begin with a presumption of application of guideline support, and entertain requests for possible deviations as custody shares cross the fringes of "normal." Given the infinite permutations possible, we do not think an outright prohibition on requesting deviations based on NRS 125B.080(9)(j) should be laid down for any particular time-share. However, courts should normally not grant a deviation based on that factor when the time spent by the minority time-share parent is within the zone of "normal," because the child support All other jurisdictions have lined up with the national consensus. In 2000, New Mexico verified its 1990 holding in Toupal, supra, in Scheidel,20 rejecting a "federal law prohibits enforcement" argument and noting that there is no analytical difference between a member making a new disability application post-divorce, on the one hand, and increasing an award that existed upon divorce, on the other. That court, like many others, reinvented the core concept of Gillmore: "one spouse should not be permitted to benefit economically in the division of property from a factor or contingency that could reduce the other spouse’s share, if that factor or contingency is within the first party’s complete control."21 extent that it is so restricted by law. The Defense Finance and Accounting Service (or successor military pay center) is directed to pay the funds as set out in this order directly to SPOUSE. A much more dangerous situation - for the parties and for counsel - exists where the retirement system at issue has a survivorship and cost-allocation scheme that provides for only a single beneficiary, or does not allow straightforward division of the premium cost. Such plans are common in State and municipal retirement plans, and the same situation exists for the military system, which has a particularly inflexible and one-sided approach that makes the illustration clear. In the decree, the father was required to pay $300 per child or a total of $900 per month in child support. The mother requested increased support and the father requested increased visitation. When a proposed order was submitted, the district court, among other things, abated the father’s support obligation during his one month summer visitation and made the parties equally responsible for costs of transportation of the minor children. The mother contended these orders were outside of the court’s jurisdiction. 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. Initially, to address the definition of joint physical custody, we define legal custody, including sole legal custody and joint legal custody. We then define physical custody, including joint physical custody and primary physical custody. In defining joint physical custody, we adopt a definition that focuses on minor children having frequent associations and a continuing relationship with both parents and parents sharing the rights and responsibilities of child rearing. Consistent with the recommendation of the Family Law Section, this joint physical custody definition requires that each party have physical custody of the child at least 40 percent of the time. We then address the district court's rulings. The 20/10/10 rule is not a limitation upon the subject matter jurisdiction of the State courts.2 Its practical effect is sometimes the same as a legal bar, however, which is one reason that the ABA position (for over a decade) has been that the provision should be repealed.3 A former spouse in possession of an order that does not satisfy the rule must rely on whatever State law enforcement mechanisms are available, which may or may not be of any use. The reality is that the "rule" often produces inequity, while serving no valid public policy purpose of any kind. In most such cases, one party asserts facts such as "holding out," and the other denies it, so the determination can¡¯t be proven until trial. This creates a horror in the real world of litigation ¨C one could find out only after trial that the court hearing the case never had jurisdiction to do so in the first place. Social Security has been addressed in some detail by the Nevada Supreme Court, and those discussions are detailed elsewhere. At this juncture, it is enough to note that if a marriage lasts at least ten years, the former spouse is eligible for certain benefits under Social Security upon attaining retirement age, (if not remarried), based upon the spouse’s own earnings, or those of the wage-earner spouse, whichever are greater. Such Social Security payments are statutory entitlements that do not reduce benefits paid to retirees. Family court has too often been treated by the rest of the bench and Bar as a red-headed step-child of lesser standing. It is probably time for any conceivable rationalization for such treatment to be purged from the statutes. When the divorce is ongoing at the fifteen-year mark of the military career, there is a new danger for spouses of military members who started service after July 31, 1986. There is no provision for spousal consent, or even notification, before a member can take the $30,000.00 CSB/REDUX payment, which irrevocably reduces the lifetime "regular" retirement benefits payout. Especially where the parties have already separated, it is possible that the member could simply pocket the cash payment and the spouse would never even know of the devaluation of the retirement benefits being divided in the divorce. SUP> Further, NRS 123.140 provides a method by which a spouse may record a written "full and complete inventory of the separate property of a married person, exclusive of money." Recording the inventory serves as notice of that spouse’s separate property title to the property.7 Practitioners must thus have a clear understanding of the definitions applicable in the forum State (and, if two possible jurisdictions are in contest, the definitions in the other State, as well). Then it is a matter of discovery, looking at all the usual indicia, which are briefly discussed here. Pensions have been recognized as community property by community property States for many decades,1 and that recognition was extended to unvested2 and unmatured3 pension benefits long ago.4 Statutory and case law throughout the country now recognizes pension benefits as marital property with near-uniformity. You can find Notable Domestic Relations Cases New Uniform Child Abduction Prevention Act UCAPA Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar The Marren and Page Case List Rooney v Rooney FERS expert lawyer Exhibits on Rivero Exhibit Three Section Three Partition Actions Conclusion Public Employees Retirement System PERS Benefits Section III Subsection C Pre-Mansell and Post-Mansell Decrees Introduction to Nevada Divorce Law The Marren and Page Case List In the Matter of Parental Rights as to Carron The Marren and Page Case List Sprenger v Sprenger Coping with COLAs Notable Domestic Relations Cases available at lvfamilylawyer.com by clicking above. 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