 
|
Rivero v Rivero Opinion
Learn more about Rivero v Rivero Opinion.
Facts and Procedural Historybsp; Partys percentage of post-SBP-cost MRB = The monthly dollar amount a party will receive after adjustment for desired SBP premium cost (from the above calculation) MRB - (.065 x base amount). Regardless of the order of events, those litigating cases involving a CBS/REDUX payment will probably find that the law of "early out" cases, and disability cases, provides valuable analogies. It notes that the formula assumes a parent contributes to the financial support of the child by merely spending time with the child and shifts the focus of custody disputes to child support rather than the best interest of the child. Consistent with these points, we withdraw the Rivero formula and reaffirm the statutory formulas and the formulas under Barbagallo and Wright. Because joint physical custody requires a near-equal timeshare, we conclude it is unnecessary to utilize a third formula for cases of joint physical custody with an unequal timeshare. B> The Nevada Supreme Court issued a decision in 2002 entitled Vaile v. District Court, which provided for the recovery of the kidnapped children, who had been spirited out of Norway to the United States.1 Mr. Vaile stopped paying child support when he kidnapped the children in 2000, and never started paying again, even after they were recovered, despite his continued receipt (except for a three-year period when he elected to attend law school in Virginia), of a six-figure income and relatively lavish lifestyle. The parties entered into a premarital agreement, and were both represented by counsel. Under the premarital agreement, the parties agreed that the income of the other party would be that partys separate property, except as otherwise provided in the agreement. The Supreme Court noted under NRS 123A.080, the burden of proving the invalidity of an agreement is placed upon the party challenging the agreement and held where the wifes amended petition admitted the validity of the prenuptial agreement, the district court was under no obligation to independently determine the validity and substantive fairness This appeal presents the opportunity to address that common difficulty. This issue should be considered at the same time as the issue discussed above about whether and by whom payments of the spousal lifetime share should be made in the event the non-employee spouse pre-deceases the Repeating its prior holdings on termination of parental rights, the Court reiterated both that it would "carefully scrutinize" such cases and that it would "not substitute its own judgment for that of the district court." Here, the Court focused on the lower courts reliance on the fathers conduct prior to the birth of the child, and its finding that "the conduct of the [father] throughout the pregnancy, and immediately after the birth, is evidence of his intent and may be used to determine whether he has a settled purpose to relinquish all claims to the child." Specifically, the lower court had focused on the fathers failure to assert any interest in the child until after the termination petition was filed. The "dual receipt" prohibition in federal law was long a source of troubling inequities in military retirement benefits cases, and led to a large number of "dual comp" cases involving waiver of military retirement benefits. Those inequities were (apparently) solved when Congress repealed the "dual compensation" law, effective October I, 1999.280 Most ofthis section is therefore ofprimarily historical interest, or for purpose of analogies drawn to other areas still litigated (such as disability offsets). Since attending that seminar, I have accompanied my seniors to many appearances and have recently been allowed to fly solo. What I have seen in the courtroom and in dealings with fellow attorneys is nothing short of appalling: Anecdotal accounts, however, indicate that some trial courts continue to be misled into ruling to the contrary, based upon an overly-expansive reading of Mansell and misplaced concerns about violating the Supremacy Clause, or simply by seeing the word "disability" and reacting without any sort of adequate inquiry into what the law is, or why. The Supreme Court issued the writ of prohibition. The Supreme Court found that NRS 125.150 was plain and unambiguous, held that at the time a judgE ment or decree of divorce is entered, the district court must Contemporaneously dispose of the community property of the parties. The Court distinguished from Ellett v. Ellett, 94 Nev. 34, 573 P.2d 1179 (1978) because the parties had stipulated to separate trials on the issues, but no final judgment was entered until the close of all proceedings. For a divorce occurring while a member is still on active duty, there are even more variables. First is the uncertainty that the member will retire at all. The precise length of service cannot be known - economic conditions, the defense budget, and world crises all could change the date of separation of a member by several years. Likewise, it is usually impossible to know the rank that such an active duty member will achieve. Each of these factors affects the "present value" assigned to the spousal share. A) Presuming that as parents spend more time with their children they will directly contribute a greater share of the children's expenses, a base support obligation needs to offset some of the costs and savings associated with time spent with each parent. 65279;Presumably, all the normal rules regarding arrearages still exist (including the illogical, and apparently accidental rule that arrearages in retired pay cannot be collected from retired pay). Those with arrearages in child support or alimony, however, could initiate a withholding order that includes a payment toward the arrearage. UP> This view of the time rule essentially provides to the former spouse an ever "smaller slice of a larger pie" by getting a shrinking percentage of a retirement that is increasing in size based upon post-divorce increases in the wage-earners salary and years in service. The reason it is so dangerous for practitioners who have done just a few of these, often long ago, is how long they can come back to bite you. As detailed in my various CLE materials, the "discovery rule" basically extends until retirement or death the start date of the statute of limitations for pursuing counsel for any errors in retirement orders - and many courts have held that the attorney is 100% responsible for getting it right, and that the measure of damages is 100% of any benefits lost. Damages frequently exceed $100,000 - because the pensions were so valuable to begin with. The Supreme Court reversed. The Court noted that the only statute which would have permitted an award of fees was NRS 18.010(2)(b) which permitted an attorneys fees award only when the district court found the movants claim was brought without reasonable ground or to harass the prevailing party. The Court approved the rationale of a Florida case which determined the fact a claim becomes frivolous after filing will not support an award of attorneys fees if it was initially filed in good faith. The Court additionally noted that the mother provided no itemized breakdown of services rendered and simply claimed $23,325 in fees. bsp; Partys percentage of post-SBP-cost MRB = The monthly dollar amount a party will receive after adjustment for desired SBP premium cost (from the above calculation) MRB - (.065 x base amount). All of this extra work is a burden, but it is still a lot faster, easier, and cheaper than filing a separate action for recovery against a client, and therefore actually in the interest of both attorney and client so that any disputes as to fees owed can be expeditiously, efficiently, and economically resolved. Does it create or recognize the existence of the eligible alternate payeefs right and assign to the alternate payee the right to receive all or part of the memberfs benefits under a plan when the member's retirement benefits commence? 65279;Where a post-military Civil Service career seems likely, allocation of the retirement benefits from that service should probably be explicitly set out in the original divorce decree. Where (as in most cases) it is only one possibility among many, the standard form clauses (allowing for issuance of a further order tracing the military retired pay and entry of a further order) are probably adequate. SUP> In the U.S., common law marriage remained the norm in most of the country throughout its early history, presumably due to the size of the frontier and vast distances to government centers. The Spanish system of property ownership was, essentially, in place through much of the country prior in time to organized government. In the decree, the father was required to pay support of $300 per child or a total of $900 per month. The mother requested increased support and the father requested increased visitation. The district court, among other things, abated the fathers support obligation during his one month summer visitation. The mother contended this order was outside of the courts jurisdiction. We represented Petitioner as a pro bono client, and performed all work on her behalf since we were first contacted by the National Center for Missing and Exploited Children with no compensation of any kind. In fact, we are out of pocket for the incidental expenses related to this case. B> As a general proposition, spouses should try to begin receiving payments as soon as possible once the right to do so accrues. Military retired pay is not like a defined contribution plan with a specific balance;22 it is a like a defined benefit plan in that it provides a stream of payments that can be tapped for a present spousal share, but which has no mechanism for collecting property payments once they are missed. In other words, any arrears in military retirement benefits payments must be collected from the member directly; the military will not garnish for such arrearages. Whether or not another action has been filed elsewhere makes a difference. In a strictly default divorce situation when no other action is pending elsewhere, a Nevada court with jurisdiction over only one party can dissolve the marriage, but not adjudicate any rights as to alimony, child support, or child custody without obtaining personal jurisdiction over both parties.13 Technically, since the trial court lacks jurisdiction to adjudicate any issues other than status, those issues are thus "bifurcated," but no known case has denied a plaintiff a divorce on that basis. B> The purpose of child support is to ensure that children benefit from the same proportion of parental income in a divided household as they have in an intact family, according to the 1985 Nevada Commission on Child Support Enforcement. 16 The Commission sought guidelines that result in adequacy, consistency, and predictability of child support awards, a goal shared nationwide. 17 Over the years, Nevadas laws on child support have evolved in attempts to balance these competing goals, while maintaining a formula that is simple and easy to calculate. A summary of the development of pertinent Nevada child support guidelines is attached hereto as Exhibit 2. The purpose of the uniform acts is to provide certainty as to jurisdictional decisions - once facts are known (by admission or judicial decision), only one jurisdictional result should ever be possible under the rules they establish. By extending the objective 6-month look-back period set out in the UCCJEA by a totally subjective period in which the left-behind parent claimed she "thought" the children were "temporarily" absent, however, the Court has made determination of child custody jurisdiction in Nevada far more uncertain and subjective than the uniform act tries to make it. You can find Rivero v Rivero Opinion The Marren and Page Case List Arnold v Arnold The Marren and Page Case List Fick v Fick and Kantor v Kantor What Almost Happened to Child Support in Nevada and Why We Still Have to Fi Las Vegas child custody expert The Ubiquitous Time Rule C More Flavors than You Might Expect Division of Military Retirement Benefits in Divorce Section II Subsection A Documents to Be Filed along with the Initial Petition for Return The Marren and Page Case List Magiera v Luera and Russo v Gardner Divorcing the Military and Serving the Civil Service Section I Subsection B Family Court Partition Actions The Marren and Page Case List Braddock v Braddock Rivero v Rivero Opinion available at lvfamilylawyer.com by clicking above. Site Map If As When a Monthly Annuity Las Vegas Nevada family law appeal lawyer Las Vegas QDRO expert Nevada prenuptial agreement attorney Reno child support expert The Marren and Page Case List Robinson v Robinson Wilford v Wilford and For The Marren and Page Case List Lewis v Second Judicial Dist Court |