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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 custodyThe property settlement agreement provided that the husband was to pay alimony to the wife until her death or remarriage. The agreement did not merge into the decree. The husband sought to terminate payments based upon wife's cohabiting with another man, which he asserted was a common law marriage. The district court declined to do so although it found that the alleged cohabitation has gone on for several years, the relationship was not a defense to the action. The parties had two children. The parties entered into a settlement agreement concerning the children’s custody and care. The mother then moved to modify requesting an increase and that the support amount constitute 25 percent of the father’s gross monthly income and should include all overtime pay. The district court found that the mother’s loss of a roommate constituted a substantial change of circumstances warranting modification. The district court also took into consideration the father remarried and had two other children from the marriage to support. The district court reduced the father’s obligation to $600 per month until the eldest aged out, and then ordered the support would be reduced to $300 per month for the other child. The district court found the father’s overtime to be unpredictable and did not take into consideration overtime wages. The mother appealed claiming the district court failed to comply with statutory and case law requirements because it deviated from the statutory formula. The final version of the bill, enacted as NRS 125.155, applies solely to PERS. Section 1(a) requires any divorce order to be based on the "time rule" and Section 1(b) prohibits basing a division "upon any estimated increase" based on post-marital service. Section two states that the divorce court may require that benefits for a spouse not be paid until the participant actually retires, and may safeguard the spousal share, if it does so order, by way of a bond, life insurance, or other security, or (by agreement of the parties only) by increase in the spousal share to compensate for the delay in payments. Section three provides that a spousal share ordered under that statute terminates upon death of either party unless a retirement option providing for survivorship benefits is agreed or ordered, although the phrasing is confusing and appears garbled. In sum, in the absence of anything indicating otherwise, property is to be divided equally. And that "anything," in Nevada, is required to rise to the level of a "compelling reason" for an unequal division. Still, it would appear that judges have significant latitude for finding such reasons, and need only make their findings in writing, and avoid obvious abuse of their discretion, to justify an unequal distribution of property. At the time of the marriage, the wife was working as a receptionist for a doctor’s office and the husband was managing his automobile agency. The wife quit working shortly after the marriage. The husband received $3,000 per month, plus a bonus at the end of each year. The automobile agency was sold in 1966 for $5 dollars, plus the assumption by the purchaser of nearly a million dollars in liabilities. The husband also in herited $750,000 in stock from his father’s estate. In June 1962, the husband purchased a lot for $10,000. He testified that this money came from the sale of stock which he inherited and he took title solely in his name. A loan of $42,400 was obtained for the purpose of constructing a house on the property, which was secured by a deed of trust on the property signed by both husband and wife. The house and lot were transferred by deed from the husband to the wife in October 1965. The district court found that the property had been transferred to the wife to avoid its seizure by creditors, and that the wife had orally agreed to hold it in trust for husband and to reconvey it at his request. The district court then went on to find this property to be the sole and separate property of the husband. Nevada is in the clear mainstream of all States, and the overwhelming majority of community property States, in its application of the time rule. Distributions of the spousal share at eligibility for retirement is the norm. The exemption of PERS participants from the law otherwise applicable raises a host of equal protection concerns, as between PERS participants and employees in other, similar retirement systems, and as between PERS participants and their spouses in divorce litigation The parties purchased the house in 1977, and held title as joint tenants. The wife claimed that she should be reimbursed for one-half of the $69,000 down payment she made. The district court divided the house 60/40 in favor of the wife. The district court rebuffed the wife’s claim for reimbursement. Other courts hearing these cases have indicated a desire to reach the economic merits, and have not seemed any more impressed with semantics than were the Tennessee courts. For example, in Janovic v. Janovic,25 the member waived a portion of retirement benefits in favor of VA disability benefits less than a year after divorce. The trial court ordered him to pay reimbursement. On appeal, the member claimed that the former spouse was only entitled to a share of "disposable retired pay," and his application for disability had eliminated the disposable pay and created "disability pay," which he alone was entitled to receive. We will consider rehearing when we have overlooked or misapprehended material facts or questions of law or when we have overlooked, misapplied, or failed to consider legal authority directly controlling a dispositive issue in the appeal. NRAP 40( c )(2). Having considered the petition and answers thereto in light ofthis standard, we conclude that rehearing is not warranted. 65279;The same result was reached in three cases from Tennessee decided in early 2001, two from that state's Court of Appeals, and a third from the Tennessee Supreme Court: Hillyer v. Hillyer, Smith v. Smith, and Johnson v. Johnson. All three decision discussed the Mansell holding at length. They started with the legal principles that military retired pay is marital property subject to distribution, and that periodic payments to a spouse are distributions of property rather than alimony. As such, a divorce decree's division of retired pay is final, and when not appealed, is not subject to later modification. The Supreme Court reversed. The Court noted that there was no mention in the decree that the husband was required to maintain the life insurance policies. The Court held because of that the husband was entitled to cancel the life insurance policies and there should have been no consequences to him. Here, however, Judy wanted to and did negotiate for a lump sum, which necessarily terminated the payment stream she had been receiving labeled "alimony." The court found that a contingency fee agreement to pay counsel was therefore simply prohibited, under various cases and ethics opinions. Without questioning - or even reciting - the public policies implicated, the court casually noted that the rule "does raise some concerns with respect to certain individuals' ability to retain an attorney in domestic relations cases." The court also noted, without comment, that the Restatement (Third) of the Law Governing Lawyers § 35 (2000) provides that contingency fees are prohibited only when they are contingent on a specific result in a divorce proceeding or concerning custody of a child. 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. The husband and wife entered into a settlement agreement. The settlement agreement was later ratified, approved, and incorporated as part of the decree of divorce. The agreement provided that the husband would pay alimony until 1982. The alimony payment included funds for child support. The agreement also provided that in the event of the wife’s death or remarriage, the husband would remain obligated to pay support of $475 per month per child. The agreement required the husband to pay child support for each who attended college until the age of 22 and maintain a C average. The agreement also required the husband to pay costs of tuition for college for the child as the parties may reasonably agree until the age of 22 and maintain a C average. The wife died about two years later. The daughter brought suit. The district court found that the father was responsible for tuition, but not responsible for child support arrears. Of greater concern is Mother¡¯s second argument ¨C that she was lulled into not filing by false assurances by Father that he was going to send the children back to Nevada.1 Indeed, as Mother points out, there is authority indicating that such deception is "reprehensible conduct" such that a court could rule itself to be an "inconvenient forum" despite the presence of the children in the state for the requisite time.2 i) pay to that spouse from the member's disposable retired pay the least amount directed to be paid during that month by any such conflicting court order, but not more than the amount of disposable retired pay which remains availab1e for payment of such courts orders bas ed on when such court orders were effectively served and the limitations of paragraph (1) and subparagraph (8) of paragraph (4); The mother received primary custody and support of $450 per month. The mother consulted a lawyer, and upon discovering NRS 125B.070 and the 18 percent formula moved for an increase, alleging nonconformity with statute, and based on the father's $6,000 per month income. The district court increased support to $1,000. Military retirement benefits can be treated as property to be divided between the parties, or as a source of payment of child or spousal support, or both. All that is necessary to use military retirement benefits as a source for child support or spousal support payments is Several members of the Executive Council were instrumental in deflecting what would have been incredibly bad legislation, in the form of A.B. 292. That bill would have significantly damaged the whole scheme of community property by disallowing division of unvested retirement benefits, among other things. It was detected the day before its final vote in the Senate, having passed entirely through the Assembly, and Senate Judiciary, without any notice to the Council whatsoever. Finally, we address Ms. Rivero's motions for recusal and disqualification, and the district court's award of attorney fees to Mr. Rivero arising from those motions. The property settlement agreement provided that the husband was to pay alimony to the wife until her death or remarriage. The agreement did not merge into the decree. The husband sought to terminate payments based upon wife's cohabiting with another man, which he asserted was a common law marriage. The district court declined to do so although it found that the alleged cohabitation has gone on for several years, the relationship was not a defense to the action. Such a deal provides an award to the former spouse of irrevocable, unmodifiable alimony in an amount measured by the military retirement benefits, in exchange for a waiver by the former spouse of any property interest in the retirement benefits themselves. Payments can then be made by the pay center. There is no reason (under the terms of the statute, at least) that cost of living adjustments, etc., cannot be included in such an award, and there should be no difference to the tax impact. You can find Rivero State Bar Amicus Brief Part One Welfares Appearance in the Vaile Matter Marren and Page Case List Public Employess Retirement System PERS Benefits Section II Subsection A Bankruptcy The Marren and Page Case List Bemis v Estate of Bemis Siragusa v Brown Carson City qualified domestic relations orders Mathematical Mechanics of the SBP Who Gets How Much If the Other Party Dies The Marren and Page Case List Trubenbach v Amstadter Las Vegas family law divorce specialist Divison of Military Retirement Benefits In Divorce Section VII Documents to Be Filed along with the Initial Petition for Return Schwartz and alimony The Marren and Page Case List Peardon v Peardon Rush v Rush Applebaum v App Divison of Military Retirement Benefits In Divorce SectionV Subsection G Division 5050 or Other Military Retired Pay and the Dangers of REDUX Divison of Military Retirement Benefits In Divorce Section VI Subsection B Rivero State Bar Amicus Brief Part One available at lvfamilylawyer.com by clicking above. Site Map Child Support exceeding the statutory presumed maximum The Marren and Page Case List Awad v Wright Lamb v Lamb and Dept of Child a Rivero v Rivero Opinion Section VI Divorcing the Military and Serving the Civil Service Section II Subsection Ogawa Amicus Brief Governing Law and Analysis Carson City civil service retirement lawyer Death Benefits in the Military Retirement System |