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Rivero State Bar Amicus Brief Part One A
Learn more about Rivero State Bar Amicus Brief Part One A.
The Court is asked to clarify what constitutes joint physical custodyB> Because of the nod in ICARA to "the applicable law governing notice in interstate child custody proceedings,"1 the better procedure is to file a "Declaration Establishing the Habitual Residence of the Child(ren)" in every Hague Convention case, using the format of the local version of the Uniform Child Custody Jurisdiction Act or Uniform Child Custody Jurisdiction and Enforcement Act in the state where the Petition is filed. Some courts are loathe to engage in any of the speculation set out above, and so tend to just enter "wait and see" orders, reserving jurisdiction to enter an order regarding the retirement benefits until the member is eligible for retirement (or actually retires). Such a nonresolution avoids all of these difficulties, but has its own down-side, in terms of making it certain that there will be later legal expenses, jurisdictional complications if one or both parties relocate, and the emotional cost of not achieving closure on an issue of primary importance. The Court stated that "[w]e believe that no other safe rule can be laid down than that property or money once a part of the community will be presumed, as against creditors, to remain such until shown by clear, certain, and convincing proof to have been transmuted into separate property. Id. at 415-16. The Court also noted that in Lake v. Bender, 18 Nev. 361,4 P. 711, 7 P. 74 (1884), it held that, to establish a gift from one spouse to another of any interest in a community estate, convincing proof was required. The Court further concluded that the district court having found that the property in question was community property, no judgment should have been entered against the wife, but the judgment against the husband should not be set aside for that reason. The Court affirmed the judgment as to the husband and modified it as to the wife. This third matter was directly reported to the State Bar by me, to avoid any possibility that this office could be implicated in the ongoing sleaze. That was about six months ago; near as I can tell, there was not even an investigation; certainly, we were never contacted for any information on the matter. 5. It must not "require payment of an allowance or benefit to an alternate payee before the retirement of a member or the distribution to or withdrawal of contributions by a member." b) Shall, to the extent practicable, make an equal disposition of the community property of the parties, except that the court may make an unequal disposition of the community property in such proportions as it deems just if the court finds a compelling reason to do so and sets forth in writing the reasons for making the unequal disposition. In cases involving shared custody, the parents' combined basic support obligation is increased by 50% (multiplied by 1.5) and is allocated between the parents based on their respective incomes and the amount of time the children live with the other parent. The adjustment based on the amount of time the children live with the other parent is calculated for all of the children regardless of whether a parent has primary, shared, or split custody of a child. After child support obligations are calculated for both parents, the parent with the higher child support obligation is ordered to pay the difference between his or her presumptive child support obligation and the other parent's presumptive child support obligation. The parties had been married for almost eleven years when the complaint for divorce was filed. The parties had one child. After almost two years of motion practice, the parties agreed on a parenting plan. The district court entered an order adopting the parenting plan and dividing the property. The district court ordered that the parties were to alternate the exemption. SPAN> In re Trujillo, 215 B.R. 200 (B.A.P. 9th Cir. Nev. 1997) aff’d as amended 166 F.3d 1218 (9th Cir. 1998) For bankruptcy purposes, interests in property are determined by state law. The Krempin court approvingly quoted the conclusion reached in a law review article: "´A majority of state courts,’ on one theory or another, ´take equitable action to compensate the former spouse’ when that spouse’s share of retirement pay is reduced by the other’s post-judgment waiver."16 It then added its own conclusion, that: "A review of the out-of-state precedents confirms that this result is nearly universal."17 One portion of the case law is apparently unanimous. A comprehensive review of the cases throughout the United States reveals that there is no legitimate authority for the proposition that where the divorce decree preceded Mansell, there can ever be a waiver of retired pay by the retiree in favor of VA disability benefits without compensation being required to be paid to the former spouse, dollar for dollar, as to all sums the retiree’s actions caused to be diverted from her back to him. Statutory and case law throughout the country now recognizes pension benefits as marital property with near uniformity. Stated rationales for that recognition include that the benefits accrued during marriage, that income during marriage was reduced in exchange for the deferred pension benefits, and that the choice was made to forego possible alternative employment which would have paid more in current wages, in order to have the pension. a) Determine whether the minority time-share parent is exercising less time than 20% or more time than 40% with the child. If so proceed to the next step. 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). P> 11 Of course, Nevada principles of family law will govern all cases, regardless of the origins of any concept or definition borrowed from the statutory or case law of a sister jurisdiction. It might save some litigation, and perhaps prevent another appeal, for this Court to specify that Nevada statutory and case law is controlling, and the law of States from which terms are borrowed are persuasive authority only. Note: Lacking this information, PERS will assume that the member has sole discretion in the choice of a retirement plan and/or whether to retire or take a refund. Monies payable to an Alternate Payee will be paid in accordance with the benefit plan elected by the member. On appeal, the Nevada Supreme Court noted that the child support statutes do not distinguish between upward and downward modifications. Finding that the parties’ stipulation had been incorporated into a court order and was thus a "judicially-imposed obligation," the Court ducked by footnote squarely addressing the old case law holding that non-merged support agreements are independently enforceable as a matter of contract law (see Renshaw v. Renshaw, 96 Nev. 541, 543, 611 P.2d 1070, 1071 (1980); Day v. Day, 80 Nev. 386, 395 P.2d 321 (1964) (modifiable because merged); Ballin v. Ballin, 78 Nev. 224, 371 P.2d 32 (1962)). But the Court noted that the question of whether the "merger" distinction remains valid under modern child support statutes has been asked, and remains for a later day. Having the member bear the entire premium would only appear to be a correct result if the court determined, based on the entirety of the parties' economic positions, that the result was mandated as a matter of disparity of income. Similarly, it would be improper to have the former spouse bear the entirety of the SBP premiums, at least in those states in which the courts are required to equally distribute marital property and debts, because the benefit being accorded to the member in the event of the spouse's death is greater, and there is no cost to that survivorship interest. The brackets were not directly addressed in the earlier opinions, because Wright and Wesley were both decided before the sliding scale income brackets were put in place. The above quote, however, indicates that the presumptive maximum that would be applied in the hypothetical is that corresponding to the income bracket of the $10,000 parent, making the flow of support $785, not $664. But when all relevant persons have left, and the non-custodial parent returns here, there is no such effect. Or, as NCCUSL put it: "Exclusive, continuing jurisdiction is not reestablished if, after the child, the parents, and all persons acting as parents leave the State, the non-custodial parent returns." So if all parties leave, and the non-custodial parent later returns, the child’s new Home State (or if there is none, a significant-connection State) assumes jurisdiction to make custody orders. Probably the most widely cited case is In re Teichman,2 in which the Ninth Circuit confirmed the non-dischargeability of the former spouse’s future interest in payments to her of military retired pay to be paid after the date of the bankruptcy petition. By split decision, however, the court termed amounts previously paid to the member (despite the divorce court order awarding those sums to the former spouse) as a "debt" to her that could be discharged. Thus, the member was able to retain all sums that he should have previously paid to the former spouse under the State court order (i.e., the arrearages). We are increasingly troubled by the trend of parties to leave divorce court with an agreement that settles property and alimony matters, only to immediately walk down the street to the federal courthouse and attempt to relitigate those issues. Such actions call into question the good faith of the parties and their counsel and raise thorny issues of comity and finality of judgments, to say nothing of attempting to make the bankruptcy court into some type of appellate divorce court. We do not think Congress intended this result when it enacted § 523(a)(5). While we recognize that certain marital debts and obligations are and should be dischargeable, we do not believe that § 523(a)(5) gives one spouse carte blanche to retain marital property at the other spouse’s expense. B> Because of the nod in ICARA to "the applicable law governing notice in interstate child custody proceedings,"1 the better procedure is to file a "Declaration Establishing the Habitual Residence of the Child(ren)" in every Hague Convention case, using the format of the local version of the Uniform Child Custody Jurisdiction Act or Uniform Child Custody Jurisdiction and Enforcement Act in the state where the Petition is filed. If, during any proceeding brought under this chapter, either before or after the entry of a final order concerning the custody of a minor child, it appears to the court that any child of either party has been, or is likely to be, taken or removed out of this state or concealed within this state, the court shall forthwith order such child to be produced before it and make such disposition of the child’s custody as appears most advantageous to and in the best interest of the child and most likely to secure to him the benefit of the final order or the modification or termination of the final order to be made in his behalf. You can find Rivero State Bar Amicus Brief Part One A Rivero v Rivero Opinion Pickerings Opinion Death of Member After Retirement and After Divorce The Marren and Page Case List Hermanson v Hermanson Divison of Military Retirement Benefits In Divorce Section VIII Checklist for Military Retirement Benefits Cases The Marren and Page Case List Finley v Finley Ballin v Ballin and Day v Day The Marren and Page Case List Kelly v Kelly Todkill v Todkill Peters v Pete Rivero v Rivero Opinion III B Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Legal Authority For Use in Requesting an Emergency Pick up Th Marren and Page Case Lisst Garner fraud on the court client need not sign order Divorcing the Military and Serving the Civil Service Section III Subsection Feral paralegals part 2 Nevada QDRO lawyer Partition Actions Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar The Marren and Page Case List Los Angeles and Salt Lake RR Co v Umbaugh Rivero State Bar Amicus Brief Part One A available at lvfamilylawyer.com by clicking above. Site Map Divorcing the Military and Serving the Civil Service Section II Subsection The Marren and Page Case List Hedlund v Hedlund What is Considered Community Property The Marren and Page Williams v Williams The Marren and Page Case List Ford v Ford Feral paralegals part 2 Las Vegas domestic relations law |