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Rivero State Bar Amicus Brief Part One
Learn more about Rivero State Bar Amicus Brief Part One.
Matters of Definition and Construction Neither Truax and Mosley define the term joint physical custodyFor example, in the legislative history of NRS 125.155 discussed below, most of those commenting seemed to understand the difference between defined benefit (pension) plans, and defined contribution (cash) plans. But the history indicates that the Legislature was repeatedly told that the PERS plan was "unique" in refusing to actually make payments to a former spouse until the retiree actually retires. In fact, that is true of every plan that has only a "divided payment stream" form of benefit, rather than a "divided interest" form - including the military and Civil Service retirement plans governing millions of retirees. The Supreme Court affirmed. In this case an award of "rehabilitative alimony" was "fair and equitable" under the "wide discretion" of district courts which is not to be disturbed absent an abuse of discretion, given both parties’ current capabilities and that the husband had the ability to generate income, while the wife needed alimony because, at the husband’s request, she had been unemployed during most of the marriage. The Court concluded that the husband failed to present sufficient evidence to demonstrate that the district court’s judgment was anything other than "equitable and just" or that it failed to consider the requirements of NRS 125.150. The fourth scenario imposes the SBP premium payment entirely on the member, by increasing the spousal share to 26.7380%.2 The former spouse remains over-secured, as above. The entire premium falls to the member, who still has the free survivorship on the spouse’s life. Shifting the premium in this way is analogous to making a spousal support award. PAN style="FONT-SIZE: 12pt"> The district court must "[c]alculate the appropriate percentage of gross income for each parent; subtract the difference between the two and require the parent with the higher income to pay the parent with the lower income that difference." In Wright, we did not specifically address the question of when application of the statutory presumptive maximum should occur. In the instant case, the district court first found that the [residence] was community property and then improperly apportioned that property between separate property and community property interests without first finding that the property had either been transmuted back into separate property or had been substantially enhanced in value by separate property contributions. . . . SUP> The next year, in Putterman v. Putterman,9 the Nevada Supreme Court held that both the husband’s financial misconduct in the form of refusing to account to the court concerning earnings and other financial matters, and his lying to the court about his income, provided compelling reasons for an unequal disposition of community property.10 The Court also noted, in dicta, that other possible "compelling reasons" for an unequal division of community property could include negligent loss or destruction of community property, unauthorized gifts of community property, and even, possibly, compensation for losses occasioned by marriage and its breakup.11 One thing that comes to mind as a reasonable explanation is that those who are preparing the bench memos, analyses, and proposed opinions for the Court are just unaware of the real world impacts of their suggested resolutions. Since there are no Justices now on the Court with a recent substantive familiarity with our area of the law, the Court is presumably leaning heavily on its "family law" Central Staff for direction. As noted by Edmund Burke, "All that is necessary for the triumph of evil is for good men to do nothing." It seems to me essential to have a neutral advisory presence in the legislature to prevent the kind of selfish stupidity exemplified by A.B. 292 from becoming the law of this state. We owe it to the system we serve, and to our collective clients, strong and weak, rich and poor, to prevent the statutory law from being twisted to serve the purposes of a few political insiders rather than the public generally. The standard "time rule" formula seems simple enough ¨C the spousal share is determined by taking the number of months of service during marriage as a numerator, and the total number of months of service as a denominator, and multiplying the resulting fraction by first one-half (the spousal share) and then by the retirement benefits received. The parents were subject to a joint physical custody order. The referee found that the best interests of the children would be served by vesting the mother with primary custody. The referee agreed with the testimony and recommendations of the CASA; the joint custody order was working to the detriment of the children, and there was evidence that the son was being mistreated while at the father’s home. The district court adopted the referee’s findings. The father appealed, claiming the referee applied the wrong legal standard when considering a modification of joint custody. We now address the modification of custody agreements. We conclude that the terms of the parties' custody agreement will control except when the parties move the court to modify the custody arrangement. In custody modification cases, the court must use the terms and definitions provided under Nevada law. When considering whether to modify a physical custody agreement, the district court must first determine what type of physical custody arrangement exists because different tests apply depending on the district court's determination. A modification to a joint physical custody arrangement is appropriate if it is in the child's best interest. NRS 125.510(2). In contrast, a modification to a primary physical custody arrangement is appropriate when there is a substantial change in the circumstances affecting the child and the modification serves the child's best interest. Ellis, 123 Nev. at 150, 161 P.3d at 242. For example, in the legislative history of NRS 125.155 discussed below, most of those commenting seemed to understand the difference between defined benefit (pension) plans, and defined contribution (cash) plans. But the history indicates that the Legislature was repeatedly told that the PERS plan was "unique" in refusing to actually make payments to a former spouse until the retiree actually retires. In fact, that is true of every plan that has only a "divided payment stream" form of benefit, rather than a "divided interest" form - including the military and Civil Service retirement plans governing millions of retirees. The spouse might be able to extend the period within which he or she can request a deemed election by returning to court after the divorce and obtaining an order stating that the spouse is to be deemed the SBP beneficiary. This is because the member is obliged to make the election "within one year after the date of the decree of divorce, dissolution, or annulment,"9 whereas the former spouse must make the request "within one year of the date of the court order or filing involved."10 P> Several state courts have held that the interest of a former spouse in retired pay is realized at vesting,1 theoretically entitling the spouse to collect a portion of what the employee could get at that time irrespective of whether the employee actually retires.2 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."3 And judges should consciously consider their jurisdiction to proceed before wading into the merits of cases, with sufficient knowledge of the jurisdictional rules both to understand what they should not do, and to ignore legally fatuous arguments based on indefensible attacks on their legitimate jurisdiction. If the agreed facts resolve a jurisdictional question, one way or another, the merits can be addressed; if not, the court should focus on convening such proceedings as are necessary to make the factual determinations that permit the jurisdictional call to be made promptly, economically, and correctly. The parties had a child out of wedlock. The father was paying support of $150 per month. In April 1991, the mother requested an increase. The father conceded custody, but contested the increase in support. The domestic relations referee recommended increasing the child support obligation to $242 per month. In support of this recommendation, the referee made only one finding of fact, that the surplus of the father’s total net income over his expenses was $92. The district court affirmed without making any additional findings of fact. 65279;If and when concurrent receipt under CRDP has been fully implemented in a given case, totally eliminating the required waiver, a retiree's application for and receipt of regular VA disability benefits would have no effect on a pre-existing division of military retired pay between the retiree and his former spouse; he would just get additional benefits. default, the military pay center ("DFAS") will always take the premium "off the top," and then split what remains according to the percentages set out in the order. In other words, the parties bear the premium cost in proportion to whatever share of the military retirement benefits they are receiving. 5) A court order which itself or because of previously served court orders provides for the payment of an amount which exceeds the amount of disposable retired pay available for payment because of the limit set forth in paragraph (1 ),or which, because of previously served court orders or legal process previously served under section 459 of the Social Security Act (42 U.S.C. 659), provides for payment of an amount that exceeds the maximum am aunt permitted under paragraph (1) or subparagraph (B) of paragraph (4), shall not be considered to be irregular on its face solely for that reason. However, such order shall be considered to be fully satisfied for purposes of this section by the payment to the spouse or former spouse of the maximum amount of disposable retired pay permitted under paragraph (1) and subparagraph (B) of paragraph (4). Neither Truax1 nor Mosley2 define, either expressly or implicitly, the term "joint physical custody."Truax addresses only the legal standard a court must follow when considering a modification of joint custody, without ever giving definition to the term, "joint physical custody." Although Truax noted that "the parents were subject to a ´shared’ or joint physical custody order,"3 the Opinion does not define the term "joint physical custody," nor does it specify the terms of the parents’ custodial arrangement. Because of its limited factual recitation and lack of definition, Truax is of no assistance in discerning the meaning of "joint physical custody." 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. The primary purpose of the USFSPA was to define state court jurisdiction to consider and use military retired pay in fixing the property and support rights of the parties to a divorce, dissolution, annulment, or legal separation." Byfits and starts, every State in the Union has permitted military retirement benefits to be divided as property, at least in certain circumstances. At a subsequent hearing, the district court granted Mr. Rivero's motion for attorney fees, noting that Ms. Rivero's disqualification motion was without merit. The word "acquired" embraces wages, salaries, earnings, or other property acquired through the toil or talent or other productive faculty of either spouse. At the time of the marriage, the husband had been working for approximately 40 years in the retail and wholesale business as a market manager, meat market owner, and processor of meats was the sole owner and proprietor of Schulman Meats. After the marriage, the business was incorporated with the husband receiving all of the shares of the stock. The appointed master used the Pereira approach to value the business. The district court rejected that approach and used the Van Camp approach. The district court concluded the community interest was $55,770. e Willick Law Group has drafted QDROs, COAPS, and military retirement benefit division orders for our own clients for decades. Over the last 10 years, we have also reviewed hundreds of QDROs drafted by other attorneys, accountants, or actuaries. We’ve discovered that a large number of retirement division orders contain mistakes of math, law, or process, preventing the intended beneficiary from actually receiving some or all lifetime or survivorship benefits. Even a small math error making a lifetime stream of payments bigger or smaller than it should be can add up to a huge monetary loss for a client. The maximum amount of the standard SBP annuity for a beneficiary under age 62 or a dependent child is 55 percent of the elected amount of the member’s base retired pay3 as adjusted from time to time for cost of living increases.4 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.¡¡ 3) In cases without a past determination or other credible evidence, presume the approximate number of overnights granted in the terms of the current custody or parenting time order. B> Courts in other states are split in this issue. Some have reasoned that vacation and sick time were replacements for wages, not supplemental to them like pension or retirement benefits, since vacation and sick time replaced wages on days when the worker did not work, and would not necessarily be liquidated in exchange for cash, since the benefits are often dissipated when the employee takes holiday or vacation time.19 These decisions tend to focus on whether such benefits are adequately "tangible" and the difficulty in reaching a fair valuation, when ultimately finding them to be nonmarital assets. The legislative history of NRS 125.155, and the briefs, exhibit much confusion as to when, precisely, PERS participants are "eligible to retire." Most PERS participants are eligible for retirement at 65 with five years of service, or 60 with ten years of service, or any age with 30 years of service.1 Certain employees operate under separate rules, however. Police and fire-fighters also can retire at age 65 with five years of service, but they become eligible to retire at age 55 with ten years of service, or age 50 with 20 years of service, or at any age with 25 years of service.2 Similarly, in Walsh v. Woods,5 the South Carolina Court of Appeals held that the trial court erred in granting judgment for an ex-wife based on ERISA provisions governing "vesting" and "non-alienability," and should have examined the settlement agreement to determine if the ex-wife had relinquished "all of her interests" in the pension. As in this case, the husband had named his then-current wife as beneficiary upon retirement, and upon divorce she relinquished the benefits. The husband later remarried and wanted the benefits to go to his new spouse. 65279;The husband filed a motion requesting that the child be named his "defacto child"; the wife opposed and requested blood tests. A referee heard the motion and recommended an order that the case be found "similar to Frye v. Frye, 103 Nev. 301,738 P.2d 505 (1987) based on the conduct of the parties," and that the husband "should be declared the real father." The district court sustained the wife's objection and ordered blood tests, which conclusively proved the husband's non-paternity. On return to the court, however, the district court found that the wife had failed to rebut a conclusive presumption of California Evidence Code section 621, and further ruled that the wife was equitably estopped from denying the husband's paternity. Nevertheless, the Nevada child support guidelines were derived from the Wisconsin Guidelines: making Nevada one of half a dozen "percentage of income" guideline States." This l See 1985 Report at 36. 2 See family Support Act of 1988, Pub. Law No. 100-485, 102 Stat. 2343 (October 13. 1988). The law essentially required every State to adopt some SOli of child support guideline. J See Dodson, A Guide to the Guidelines, Family Advocate 4, 6 Spring 1988 (reprinted in 1989 legislative history of A.B. 85 at 1064). 4 See 1989 Legislative History of A.B. 85 at 222-246. You can find Rivero State Bar Amicus Brief Part One The Marren and Page Case List Jones v Edwards family law jurisdiction Public Employee Retirement System PERS Benefits Section II Subsection C Exhibits on Rivero Exhibit Three Section Four Legal Authority For Use in Requesting Fees in a Pro Bono Case Child Custody Modification Jurisdiction The Basics of Jurisdiction a Remedial Course The Marren and Page Case List Gepford v Gepford Some Practical Points to Actual Collection of Child Support Alimony and Pro Automatic Temporary Restraining Orders Temporary Domestic Orders What is Or Rivero v Rivero Subsection 1 The Marren and Page Case List Weeks v Weeks Rivero State Bar Amicus Brief Part One Subsection I Legal Authority for Use in Requesting Fees in a Paid Case Calculations by the Bar and Agencies Differed a Little Rivero State Bar Amicus Brief Part One available at lvfamilylawyer.com by clicking above. Site Map Nevada SBP lawyer The Marren and Page Case List Aldabe v Aldabe Exhibits on Rivero Exhibit Three Section Four Nevada prenuptial agreement attorney Divison of Military Retirement Benefits In Divorce Section II Subsection B The Marren and Page Case List Barbash v Barbash The Marren and Page Case List Wallace v Wallace |