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Public Employees Retirement System PERS Benefits Section III Subsection A P
Learn more about Public Employees Retirement System PERS Benefits Section III Subsection A P.
3 Early Retirement by PERS MembersWhen the parties married, they each had substantial separate property interests and had children from prior marriages. The parties were able to settle the character and value of much of the property prior to the trial. The remaining property was divided by the district court. The district court determined that, since the value of the business resulted from a combination of the husband’s initial capital contribution of separate property and his efforts during the marriage, the separate and community property interests were determinable under the Pereira method. The husband also withdrew monies from a separate property capital account to purchase a ranch. The Court did not reduce the amount of the husband’s remaining separate property interest in the business by the amount withdrawn as separate The Supreme Court affirmed. The Supreme Court noted that NRS 125.210(3) gave a district court discretionary authority to change, modify or revoke provisions within decrees pertaining to child support. The Court held that such revisions are reviewable only for abuse of discretion. This has been substantially modified by NRS 125B.070 and NRS 125B.080. PAN style="FONT-FAMILY: Times New Roman; FONT-SIZE: 14pt"> Most states approving in-kind divisions have adopted the "time rule," under which the spousal share is defined as a formula. A fraction is set up, in which the numerator is the months or years of marriage during service, and the denominator is the months or years of total service. The fraction is multiplied by the retirement being divided, and half of that number is the spousal share.36 If the Court is reluctant to adopt a specific percentage of time as the threshold to consideration of joint physical custody as a possible custody award, it is requested that the Court give clear guidance that if joint physical custody is to be considered an option in a less than equal time share, the time share must be close to equal. Without this clarification, the definition becomes meaningless, leaving the parties to argue over and the trial court to figure out what constitutes"significant periods of time." 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 who has taken the time and made the effort to be well versed. Therefore, absent evidence that joint physical custody is not in the best interest of the child, if each parent has physical custody of the child at least 40 percent of the time, then the arrangement is one of joint physical custody. As used in this section, shared responsibility means a parenting plan whereby each parent provides a suitable home for the child of the parties, the court order allows the child to spend at least one hundred twenty days in a calendar year in each home, and the parents have agreed in writing to share the duties, responsibilities, and expenses of parenting, including expenses for the child's education, recreation, and entertainment activities. In a shared responsibility situation, unless the parties otherwise agree and the agreement is approved by the court, the court may, if deemed appropriate under the circumstances, order a shared responsibility cross credit. The cross credit shall be calculated by multiplying the combined child support obligation using both parents' monthly net incomes by 1.5 to arrive at a shared custody child support obligation. The shared custody child support obligation shall be apportioned to each parent according to his or her net income. A child support obligation is computed for each parent by multiplying that parent's portion of the shared custody child support obligation by the percentage of time the child spends with the other parent. The respective child support obligations are offset, with the parent owing more child support paying the difference between the two amounts. It shall be presumed that the shared responsibility parenting plan is exercised. If the parenting plan exercised substantially deviates from the parenting plan ordered, either party may file a petition for modification without showing any other change in circumstances. as alimony upon request. Where the court cannot or will not do so, the attorney for the spouse has something of a dilemma, which is sometimes resolved by negotiations involving trade of a few percentage points of value for a stipulated award of irrevocable alimony. bsp; c. Any such award should establish the period by which recipient is to have commenced re-training. Similar results have been seen in the line of authority dealing with disability benefits, which are dealt with in greater detail in a separate article. The Supreme Court affirmed. The Court cited to Day v. Day, 82 Nev. 317, 320-21, 417 P.2d 914, 916 (1966) for the rule that "payments once accrued for either alimony or support of children become vested rights and cannot thereafter be modified or voided." The Court also cited to Norris v. Norris, 93 Nev. 65, 560 P.2d 149 (1977) for the same rule. In 1965, the father and mother had two children together in New Jersey. The children were left with the father and his wife. Eventually, the mother met and married a man in Nevada. Then, the mother felt able to care for her children. She and her husband went to New Jersey, recovered the children and returned with them to Nevada. The father and his wife filed a complaint in a New Jersey court seeking custody. Based upon ex parte affidavits and without any hearing or notice an "Order to Show Cause" required the mother and her husband to deliver the children to the father in New Jersey. Copies of the "Order to Show Cause" were delivered to the mother and her husband, together with copies of the complaint. Then a "Petition for Writ of Habeas Corpus" was filed in Nevada alleging that the father was entitled to custody because of the "Order to Show Cause." Human nature being what it is, most people who are being honest will acknowledge the existence of some people toward whom they have feelings - positive or negative - making it impossible for them to be truly impartial. And this certainly includes judges. Courts have gone to considerable lengths to protect former spouses from the effects of members’ post-divorce waivers of retired pay for disability pay, when such waivers partially or completely divested the spouses of sums that had already been awarded to them. The theory applied was phrased differently from one court to another, but was essentially that of constructive trust. Once a divorce was decreed dividing the "gross" or "total" or "all" military retirement benefits, the money awarded to the former spouse was no longer considered the member’s property to convert. If the member subsequently applied for and received disability benefits, or took any other action to redirect money already ordered paid to the former spouse back to himself, he violated the divorce decree. Of course, the new statute also inserted a caveat in the opening line of NRS 125.150, purporting to exempt divisions of retirement benefits under NRS 125.155 from the entirety of the property division law governing all other marital assets. So it is possible to read this Court¡¯s two post-statute holdings harmoniously with the statute, and the analysis changes to one of equal protection, which is discussed below. 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.8 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.9 After the husband filed for bankruptcy, wiping out the property award to the wife, the district court ordered increased alimony on a new schedule; she moved to modify the award before the last day of the new schedule, although the husband had prepaid and already satisfied the judgment. The district court granted her request. If this hypothetical member had a standard longevity military retirement (or any other standard defined benefit plan2) the above wage history would make his average monthly salary during his last three years¡¯ service $4,014.21, and the military retirement formula3 would make his retired pay $2,007.11. The answer to that question is beyond the scope of these materials. It is hoped, however, that these materials will be of assistance in identifying a number of both dangers and opportunities, and thus make dealing with retirement benefits in future divorce cases easier for the practitioner, and more valuable for the client. I ask the legal community, how low do we allow the bar to be set just so a very few rude, unprofessional, and unethical attorneys can continue to practice? The answer should be clear that the minimum standards to which we should adhere should be the Rules of Professional Conduct. That is low as the bar should ever be set, Those who can't or won't comport themselves to these minimum standards should not be allowed to practice law. Period. Where the spouse did not consent to non-coverage, and no "special circumstances" are present, the spouse can petition for "instatement" of the benefits later, even after the member’s death.8 The spouse can be named SBP beneficiary even where he or she has little or no time-rule percentage of the retired pay itself.9 If the marriage overlapped service by less than ten years, the right still exists, but the spouse has to obtain the monthly payments from the retired member rather than directly from the military pay center. When the parties married, they each had substantial separate property interests and had children from prior marriages. The parties were able to settle the character and value of much of the property prior to the trial. The remaining property was divided by the district court. The district court determined that, since the value of the business resulted from a combination of the husband’s initial capital contribution of separate property and his efforts during the marriage, the separate and community property interests were determinable under the Pereira method. The husband also withdrew monies from a separate property capital account to purchase a ranch. The Court did not reduce the amount of the husband’s remaining separate property interest in the business by the amount withdrawn as separate B> In our opinion, the weakest "forms" in current circulation are those intended to provide a framework for an initial Petition, so we have included one of our own as Appendix 1.1 Other printed form sets provide perfectly workable models for most other documents that will be needed.2 In May 1968, the parties purchased the lot adjoining their residence. The husband testified that he told the wife she would have to get the $750 for the down payment. The wife did so and put the property in her name. The husband claimed the wife used his money to make the purchase, but the wife claimed that she made all of the payments and paid the taxes with money the husband had given her for security. The district court found this lot to be the sole and separate property of the husband. The Court distinguished the doctrine of equitable adoption as used in Frye for child support from its use in establishing legal custody, the Court reversed and held that "for purposes of determining legal parentage in a custody dispute between biological and nonbiological parents, Hermanson holds that NRS 126.051 is the applicable statute." The Court found that the criminal conviction "by definition" met the "clear and convincing evidence" standard, the Court noted the statutory presumption that it would not be in the child’s best interest to be placed in the man’s custody, and found an abuse of discretion. At the outset, the military chose to call its plan "UNISERV" accounts, but it is increasingly referred to simply as "TSP" like its Civil Service equivalent. If the same person has simultaneous or consecutive military and Civil Service employment, the interplay between the two plans can be complex. It is usually possible to combine the accounts, but it takes a specific application to do so,4 and tax-exempt military contributions (i.e., those made as a result of a combat zone tax exclusion) in a military TSP account may not be transferred to a civilian TSP account. Five years later, in Bush v. Taylor,3 the Eighth Circuit concurred as to the non-dischargeability of the former spouse’s future interest in payments to the former spouse, but held that any sums paid to the member and kept rather than being paid to the former spouse were retained by the member wrongfully, and he remained liable despite the bankruptcy for the full amount of payments that should have, but were not, made to the former spouse. The bankruptcy thus had no impact on the former spouse’s rights. The wife originally filed a divorce complaint as plaintiff in which she alleged Nevada residence. Dissatisfied with her Nevada attorney, she started the same proceeding in California claiming that state as her residence. The husband answered and counterclaimed in Nevada. A hearing date was set for the Nevada divorce, but the wife denied knowing of it. The Nevada counsel appeared, informed the court the circumstances of his relationship with his client, that he had been advised by her California counsel that they were not going to personally appear and make any effort to contest the counterclaim, that therefore he was not in a position to cross-examine or present any evidence. The divorce action proceeded with the court hearing evidence in support of the husband’s counterclaim and a decree was entered. B> This introduction deals with some of the terminology and definitions necessary to explore the world of retirement benefits. It discusses the kinds of plans and benefits that will be addressed in the seminar, and how those plans are valued and distributed. The time rule is explored in some detail. Finally, Nevada’s case law dealing with the subject is summarized, and the remaining open issues and notable points of those cases are discussed.1 Another practical consideration in the petitioner’s choice of venue is the expertise and experience of the petitioner’s attorney in the various courts. If an attorney is not admitted to practice in federal court, taking the time to get admitted would probably not be beneficial. is is the scenario focused upon by those who insist the former spouse should pay the entire SBP premium. But the math reveals that it is not really disproportionate to the benefits received, even if left to the "default" premium-payment. c. Equal Parenting Time Adjustment: In situations where the court has not approved the use of the shared expense formula (1II.B.7) but has determined that equal parenting time is in the best interest of the minor child, the parent who is designated by the court to pay the child(ren)'s direct expenses shall receive child support from the other parent. The parent paying the monthly support shall receive a 20% parenting time adjestment. The percentage adjustment should be applied to Line 0.9 and then entered on line E. The substance of the above was sent to the Bar in the form of a private letter ¨C a month and a half ago. There has been no response of any kind, beyond a note from Bar staff indicating the letter was received and copied to those in charge. PAN style="FONT-FAMILY: Times New Roman; FONT-SIZE: 14pt"> In post-Mansell divorces, the same result has sometimes resulted from different logic. "Safeguard" clauses and "indemnification for reduction" clauses are permissible, and have the result of protecting spouses from the members’ unilateral recharacterization of benefits. The theory is essentially that of constructive trust; once the divorce goes through, the retirement money is considered no longer the member’s property to convert. See Johnson v. Johnson, 37 S.W.3d 892 (Tenn. 2001); In Re Marriage of Harris, 991 P.2d 262 (Ariz. 1999); In re Strassner, 895 S.W.2d 614 (Mo. Ct. App.1995); see also Owen v. Owen, 419 S.E.2d 267 (Va. Ct. App. 1992); Dexter v. Dexter, 661 A.2d 171 (Md. App. 1995); McHugh v. McHugh, 861 P.2d 113 (Idaho Ct. App. 1993). In another example, however, the court in Ewing v. Ewing, 21 Va. App. 34, 461 S.E.2d 417 (1995), was called upon to interpret the Virginia guidelines, which provide that a parent has "shared custody" where a parent has custody of the child for at least 110 "days" of the year. In that case, the court determined that "day" should be defined not as overnight visitation, but as any continuous 24-hour period. Accord In re Marriage of Hansen, 81 Wash. App. 494, 914 P.2d 799 (1996) (any period totaling twenty-four continuous hours is "custody", not common-law definition of day, which is midnight to midnight). Ewing and Hansen decisions are flawed, because under the definition of "day" adopted by these courts, it is possible that a non-custodial parent, exercising extensive visitation up to 180 overnights a year, and thus incurring equal cost in child-rearing to the custodial parent, would never have even one full "day" of visitation, leaving the parties with the anomalous and ridiculous result that there are no days in a year. Because the Virginia Child Support Guidelines make an adjustment for shared custody when a parent has 110 "days" of visitation, the Virginia Child Support Guidelines were rendered meaningless as the result of the Ewing decision. Indeed, anecdotal evidence from attorneys in Culpepper County, Virginia, have shown that one judge consistently orders visitation in a way in which neither parent ever has "custody" under the Ewing definition. See Brown v. Brown, VLW 096-8-172 (Va. Cir. Cl. 1996) (by using Ewing definition of day, father was able to eliminate his child support obligation). 65279;Another thing to watch closely in military cases is the time restrictions for former spouse qualification for ancillary benefits (medical, commissary, theater, etc.) For full benefits, the member must have served twenty years, the marriage must have lasted twenty years, and the service and marriage must have overlapped by twenty years (the "20/20/20" rule "20/20/15" former spouses divorced before April 1, 1985, are also eligible for lifetime medical benefits. Lesser benefits are available for "20/20/15" spouses divorced after that date. The possibility of continued service by the member beyond the first eligibility date for retirement should be expressly contemplated on the face of every divorce decree dealing with a member who is still on active duty at the time of divorce. Courts have gone to considerable lengths to protect former spouses from the effects of members’ post-divorce waivers of retired pay for disability pay, when such waivers partially or completely divested the spouses of sums that had already been awarded to them. The theory applied was phrased differently from one court to another, but was essentially that of constructive trust. Once a divorce was decreed dividing the "gross" or "total" or "all" military retirement benefits, the money awarded to the former spouse was no longer considered the member’s property to convert. If the member subsequently applied for and received disability benefits, or took any other action to redirect money already ordered paid to the former spouse back to himself, he violated the divorce decree. You can find Public Employees Retirement System PERS Benefits Section III Subsection A P The Marren and Page Case List Weeks v Weeks and Graham v Graham The Marren and Page Case List Occhiuto v Occhiuto How Low Does the Bar Go The Marren and Page Case List Lombardi v Lombardi Giorgi v Giorgi Hopper v expert pay child support The Marren and Page Case List McGuinnes McGuinnes Blaich v Blaich and Potte Division 50 50 or other The Marren and Page Case List City of Las Vegas v Las Vegas Municipal Court Is There a Pocket Where to File and Litigation Judicial or Administrative Decision Agreement of Having Legal Effect Present Value A Bird in the Hand Interactions Between Military and Civil Service Retirements Military Retired Pay and the Dangers of REDUX New Uniform Child Abduction Prevention Act UCAPA Bankruptcy Public Employees Retirement System PERS Benefits Section III Subsection A P available at lvfamilylawyer.com by clicking above. 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