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Rivero v Rivero IV B Subsection One
Learn more about Rivero v Rivero IV B Subsection One.
Calculating child support in cases of primary physical custodyThe availability of military Family Care Plans, which are required by military regulations to designate guardians for a child, also may not generally be used offensively, to cut off the right of a natural parent to seek or obtain temporary custody, at least until the member returns from deployment.2 B)are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38; 6) Notwithstanding any other provision of law, a member or former member of the armed forces referred to in paragraph (2)(A) shall have no ownership interest in, or claim against, any amount payable under this section to a spouse or form er spouse of the m ember or form er mem ber. 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. The availability of military Family Care Plans, which are required by military regulations to designate guardians for a child, also may not generally be used offensively, to cut off the right of a natural parent to seek or obtain temporary custody, at least until the member returns from deployment.2 The USFSPA is both jurisdictional and procedural; it both permits the State courts to distribute military retirement to former spouses, and provides a method for enforcement of these orders through the military pay center. The USFSPA itself does not give former spouses an automatic entitlement to any portion of members’ pay. Only State laws can provide for division of military retirement pay in a divorce, or provide that alimony or child support are to be paid from military retired pay.1 Rights granted by State law are limited by federal law, even if State law does not so provide, and even if the courts of the States do not see any such limitations.2 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 bv the other party and the child. Only where the benefit is greater than the detriment - usually measured by comparison of household income would the deviation be Qranted. The Supreme Court reversed. The Court noted that in McGlone v. McGlone, 86 Nev. 14, 464 P.2d 27 (1970), that a fit parent is to be preferred over nonparents in child custody cases and that custody may not be given to a nonparent unless the parent is found to be unfit. The Court concluded that the presumption of parental preference as a matter of law had been overcome. The Court found that the father’s attitude and conduct was one of callous indifference and abandonment. The Court found that the record presented conclusive evidence of husband’s unfitness. The Court noted that the best interests of the children were paramount citing to NRS 125.140; Cooley v. Cooley, 86 Nev. 220, 467 P.2d 103 (1970); Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969); Timney v. Timney, 76 Nev. 230, 351P.2d 611 (1960) and that those interests would best be served by placing the care and custody of the two children with their grandparents. SPAN> It was thought on passage of the 1991 amendments that the "no partition" bar was pretty complete. Some courts, however, have elected to disregard it, holding that the underlying state law of their state constituted a built-in "reservation of jurisdiction" to divide any omitted asset, including military retirement benefits, but the linedrawing can be pretty fine. Court noted the statutory provision found in NRS 125.500 is known as the "parental preference" presumption. The Court held that it must be overcome either by a showing that the parent is unfit or other extraordinary circumstances. B> There is no question that when a PERS member takes early retirement, it causes a permanent reduction in the sum of retirement benefits that will be received, because of the statutory reduction of 4% for each year (plus 0.33% for each additional month) that the retirement precedes the required age for retirement as detailed above.29 If a former spouse is to receive a portion of the retirement benefits ultimately paid, then the payments to the spouse will be likewise affected. 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. Sometimes, this focus is revealed in contempt cases, as in the 1995 Texas Court of Appeals rejection of a retiree’s claim that federal law made him "exempt" from contempt sanction after he waived retired pay in favor of disability benefits.2 This is one of the cases that have labeled a post-divorce recharacterization of benefits as an improper "collateral attack on a final unappealed divorce decree."3 The lesson for lawyers is that it is much easier (and cheaper, and less stress-inducing) to address such orders before they become a problem - even if that involves opening old case files, and making sure the pension division orders are checked by someone with expertise. The committee was also concerned with the "distortion" created by the fact that presumptive maximums in Nevada applied to obligors with different numbers of children at different income levels. It therefore suggested that the Nevada Legislature take a tack similar to that of Wisconsin, applying the percentage guidelines to all income within broad limits, for the equal protection and philosophical consistency reasons stated above. Specifically, the Committee recommended applying the percentage guidelines to all gross monthly income up to $10,000 per month, and permitting courts the discretion to apply them to income above that amount. Since that report was written, inflation has made $10,000 equal to about $13,000 per month today. Framed as a word problem, the question presented is how to fairly adjust guideline child support based on "the amount of time the child spends with each parent," given the Nevada statutory guidelines, including its presumptive maximum provisions, across a wide variety of time-shares and parental incomes, while safeguarding the interest of the child to receipt of an adequate level of support in both households. There are attorneys, and some trial level judges, who have tried to hold the language used in pre-Mansell divorce decrees to that "higher standard of clarity," arguing that the language of the USFSPA itself provided adequate "notice" of the issue to the former spouse as of 1982. Since virtually every published decision before Mansell had rejected the construction of the language embraced by the majority in Mansell, however, that argument has been almost universally rejected by appellate courts as sophistry, or at best a misdirected retroactive application of the Mansell holding.1 For most retirement systems, that is not difficult - in the military system, for example, there is an annual COLA that is indexed to inflation. But as detailed above, PERS has a complex, multi-year COLA system that is highly "back-weighted"; i.e., the later adjustments are much greater than the first adjustments. Who pays for the benefit can also be adjusted between the member and the spouse, but only indirectly, by varying the percentages of the lifetime benefit paid to each party 2. If the court finds that the obligor has failed to exercise a significant number of the overnights provided in the court order necessary to receive the parenting time adjustment, in a proceeding to modify the child support order, the court may establish the amount that the obligor has underpaid due to the application of the parenting time adjustment as a child support judgment that may be enforced in the same manner as any other child support judgment. If it is determined that the child is not in danger, the Petition for Return (and all the necessary accompanying documents) can be personally served by a process server. If counsel determines that there is a danger, or the decision has been made to seek a warrant in lieu of writ of habeas corpus (see next subsection), the assistance of the local law enforcement agency can usually be obtained to serve the documents on the respondent. 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. ii) Custody share. "Custody share" means the number of days that a parent has physical custody, whether by sole custody, joint legal or joint residential custody, or visitation, of a shared child per year divided by the number of days in the year. The actual or anticipated "custody share" of the parent who has or will have fewer days of physical custody shall be calculated for a one-year period. The "custody share" of the other parent shall be presumed to be the number of days in the year less the number of days calculated as the first parent's "custody share." For purposes of this calculation, the year may begin on such date as is determined in the discretion of the court, and the day may begin at such time as is determined in the discretion of the court. For purposes of this calculation, a day shall be as defined in subdivision G 3 (c). 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. provide for division of military retirement pay in a divorce, or provide that alimony or child support are to be paid from military retired pay.1 Rights granted by State law are limited by federal law, even if State law does not so provide, and even if the courts of the States do not see any such limitations.2 The parties were divorced and the father filed a motion to modify custody. After the mother was awarded custody, she attempted suicide and had taken barbiturates over an extensive period of time. On one occasion, the child took some of the mother’s barbiturates and as a result had to be rushed to the hospital to have her stomach pumped. The district court entered a temporary custody order placing the child in the father’s custody pending the hearing of the motion. After the hearing, the father was granted custody. The district court found that the father was a fit and proper person to have custody, that the physical and mental condition of the mother had changed since the entry of the prior order. 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. You can find Rivero v Rivero IV B Subsection One The Marren and Page Case List Johnson v Johnson Pereira v Pereira Van Camp The Marren and Page Case List Mizner v Mizner Simpson v ODonnell Barelli v Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar The Marren and Page Williams v Williams Las Vegas child visitation expert Special Problems and Considerations in International Military-related Cases The Marren and Page Case List Fick v Fick and Kantor v Kantor An Introduction to Pensions in Nevada Divorce Law Section I Subsection B The Marren and Page Case List Langevin v York The Marren and Page Case List Whise v Whise Fleming v Fleming Presson v Pre The Marren and Page Case List City of Las Vegas v Las Vegas Municipal Court What to Argue If Seeking to Prevent a Court with Jurisdiction from Exercisi Rivero v Rivero IV B Subsection One available at lvfamilylawyer.com by clicking above. Site Map family law jurisdiction Child Support exceeding the statutory presumed maximum The Marren and Page Case List Nixon v Brown and Schmanski v Schmanski Divison of Military Retirement Benefits In Divorce Section V Value Altering In Search of a Coherent Theoretical Model for Alimony The Marren and Page Case List Truax v Truax The Marren and Page Case List Guardia v Guardia Hamlett v Reynolds Reciprocal Links: Rivero v Rivero IV B Subsection One Rivero v Rivero IV B Subsection One Rivero v Rivero IV B Subsection One Rivero v Rivero IV B Subsection One |