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Rivero v Rivero Opinion Subsection One
Learn more about Rivero v Rivero Opinion Subsection One.
Defining joint physical custodyB> As a matter of law, it is possible to value the spousal share in at least two ways. The majority of States applying the time rule formula seem to view the "community" years of effort qualitatively rather than quantitatively, reasoning that the early and later years of total service are equally necessary to the retirement benefits ultimately received.3 The wife first filed for divorce in California. The husband answered and in March 1961, an interlocutory divorce was granted and the wife was awarded alimony of $200 per month for 24 months. Within two months, the wife filed for divorce again, but this time she filed in Nevada and again requested alimony. The husband appeared and pled the California decree as res judicata. The district awarded the wife the lump sum of $10,000 as alimony. Actual litigation of these cases requires satisfaction of assorted jurisdictional grounds, and then the resolution of a small number of substantive issues, which may look like, but are not to be confused with, questions relating to custody of the child. Having been compelled to comply with the child support laws, the bureaucracy has attempted to subvert both those laws and even public policy to serve its internal limitations and interests. Frustrated in that effort, the bureaucracy has become increasingly strident in its defense of its own errors, to the point of attacking those attempting to serve the public good, and voluntarily assisting those whom it should be prosecuting. It seemed appropriate to bring to the attention of the Bench and Bar what brought us to this point, with the hope that someone in a position of sufficient authority might actually see fit to do something about it. Practitioners therefore must be careful in all reservist cases; they should be wary in a case involving reserve component service of any calculations that presuppose the typical "years of marriage divided by years of service" formula. Since point accumulation might have been intermittent, significantly different spousal percentages could be obtained by the two methods of figuring. Note that the amended (prior) regulations in 32 C.F.R. § 63.6 specifically directed dividing reservist’s retirements by points accrued during marriage, rather than duty time during marriage; that directive appears to remain in all military guidelines, and will presumably be permanently added to the regulations when they are finalized. While some courts have expressed the opinion that an outright award of spousal support in the sum of military retirement benefits lost by reason of a disability election constitutes a violation of Mansell,14 other courts have had no problem with the direct substitution of alimony for the would have been divisible retirement benefits but for the member’s election. Where VA disabili intended property award. In Austin (Scott) v. Austin,15 the court instituted an award of alimony, that had been previously reserved until remarriage, in lieu of the pension share lost because of the member’s transfer to VA disability status. The court gave its approval to alimony continuing after the spouse’s remarriage, where the alimony award is intended to compensate for distribution of a pension earned during marriage, citing Arnholt v. Arnholt.16 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that if the amount paid by the military pay center to SPOUSE is less than the amount specified above, MEMBER shall initiate an allotment to SPOUSE in the amount of any such difference, to be paid from any federal entitlements due MEMBER, with said allotment to be initiated by MEMBER immediately upon notice of such difference, and making up any arrearages in installments not less in amount or longer in term than the arrearages accrued. The Supreme Court affirmed. The Court held that under NRS 125.150(7), the district court's jurisdiction is "co-existent with the alimony order itself," so an alimony award can be modified until the time for making the final payment passes, whether or not the husband prepays. The fact that the original alimony award had expired was "unpersuasive," since the period of extension was caused by the husband's failure to make payments and wife's obtaining an arrearage order. Where the supporting spouse is in arrears at the expiration of the original alimony term, modification of the alimony award is proper after the expiration of the original alimony term. Wolff v. Wolff20 was another PERS case involving a Highway Patrol officer. The community had a 54% interest in the retirement, and the husband became eligible to retire three months after divorce, but elected to keep working. The district court had calculated that the community share of the retirement was worth $1,155.12 per month, and ordered the husband to pay that sum to the wife from his salary until he actually retired. The lower court also apparently held that an "equivalency" must "reflect [the husband’s] obligation to transfer his vested community property interest in [the wife’s] social security benefits" and must "reflect" that the husband was paying taxes on his current salary. The district court concluded that the amount of the wife’s community share of the husband’s retirement, when he was entitled to receive it, would never be less than $578.00, and so awarded $450.00 per month in "Limited Temporary Spousal Support" until the husband retired, as a "reasonable equivalency," further ordered that the payments would not terminate upon her remarriage or her death, and ordered that the support was taxable to her and deductible to him. In 1940, the United States enacted the "Soldiers’ and Sailors’ Civil Relief Act" to provide that those serving in World War II would have protections against default judgments, exorbitant interest rates, and the ability to stay ongoing civil court cases while they were on duty. The law was substantially revised in 1991 after the Gulf War, and then scrapped entirely in December, 2003, in favor of the replacement SCRA. 65279;The Fifth Circuit has simply held that an award to a former spouse of a portion ofthe retired pay as property made it her separate property from that day forward, leaving no "debt" to be discharged or otherwise addressed by the bankruptcy court.l'" The Ninth and Eighth Circuits have generally agreed with this principle, although their opinions diverge on the question of arrearages. One member of the panel presenting this seminar takes the quoted language as notice that if the plan terms had not conformed to ERISA in some respect, suit against the plan by an intended beneficiary apparently would have been permitted. Another panelist does not think that any conclusion can be drawn in an area in which the court "expressed no view." A member declaring bankruptcy does not lose the right to receive future retired pay based upon prior or future military service. In cases decided prior to enactment of the USFSPA, an order to pay a portion of retired pay to a former spouse (or a sum of money in lieu of such a portion) was often considered a "debt" dischargeable in bankruptcy rather than a property interest. Since enactment of the USFSPA, courts have generally held awards to former spouses of a portion of military retired pay to be non-dischargeable. There are mechanisms for dealing with members who legitimately have custody of dependent children outside the United States, but fail or refuse to return the children to the U.S. pursuant to a court order.3 The various services have their own implementations of the directive, but the purpose and effect is to obtain compliance with court orders requiring the return to the United States of minor children who are the subject of court orders regarding custody or visitation.4 PAN style="FONT-SIZE: 12pt"> SERVICE ON U.S. MILITARY PERSONNEL ABROAD: We understand that the general position of the military departments is that the service of civil process on military personnel stationed abroad (or at sea) is not a proper military function. Thus, governing military regulations expressly prohibit commanders from serving civil process upon their personnel unless the individual agrees to accept the process voluntarily. Generally, commanders or other officials in charge when contacted about service of process on an employee will bring the matter to the attention of the individual and will determine whether he or she wishes to accept service voluntarily. If the individual does not desire to accept service, the party requesting such service will be notified and will be advised to follow the procedures prescribed The Supreme Court affirmed. The Court noted that a review of the record showed there was no evidence presented by either party which was the same evidence relied upon by the previous court. The Court further noted for there to be identity of "causes of action," as that term is used, is the identity of the facts essential to their maintenance, and that the identity of the causes of action may appear from evidence in the two cases as well as from the pleadings, citing to Silverman v. Silverman, 52 Nev. 152, 283 P. 593 (1930). The record indicated that there was no evidence to indicate identity of causes of action. The district court and the husband’s attorney limited testimony to events occurring after date of the Missouri decree. B> As a matter of law, it is possible to value the spousal share in at least two ways. The majority of States applying the time rule formula seem to view the "community" years of effort qualitatively rather than quantitatively, reasoning that the early and later years of total service are equally necessary to the retirement benefits ultimately received.3 While courts have been uncertain how to characterize the nature of the SBP,3 those squarely addressing the question have concluded that a spouse is "to be awarded a proper share of both the former husband’s military retirement plan and the survivor benefit plan," because of the "´potential unfairness’ to the wife should her former husband predecease her, thereby extinguishing pension rights."4 The Court here noted that the district court based its order to increase child support upon the vast difference in the parties' financial resources and the increased expenses of a teenager. The Court stated that "[C]hild support is not calculated as a supplement to the presumably inadequate means of the custodial parent. NRS 125B.070 specifies a parent's duty of child support according to the parent's means rather than according to the child's needs. Although the ultimate policy objective may be the welfare of the child, the legislative scheme implements this policy by focusing the court's attention upon a parent's statutory duty to provide a fixed percentage of his income as support" citing to Lewis v. Hicks, 108 Nev. 1107, 1113,843 P.2d 828, 832 (1992) ld. at 580. The Court held that the district court properly considered the father's financial circumstances in departing from the statutory child support formula. It is suggested that the trial court should view the facts and circumstances of the case from a child-centered9 perspective and look to facts establishing the quality of the parent’s interactions with the child, including the relationship with the child, where the child resides and when, the care and supervision provided to the child, and how and where each parent provides that care and supervision. The foregoing are not intended to be the sole factors considered. The list should be inexhaustive 10 and focus the analysis on the unique facts of each child’s life. Presumably, the burdenof making the showing should be placed on the minority time-share parent asking that the timeshare be recognized as one of joint-but-unequal custody. This is of course the logical result, and what most judges thought had been happening all along. There appears to be a political reason it took ten years for the statute to be altered to produce that result. If "provisional remedies" are being requested, that fact should be requested in the Petition. Such a request is discussed in more detail in the following sub-section of this article. 3. The presumption that more parenting time by the ARP results in greater expenditures which should result in a reduction to the ARP's support obligation may be rebutted by evidence. The spousal rights provisions only apply only if the TSP account contains more than $3,500. If the participant is married and wants to make a partial withdrawal of funds, the spouse's notarized written consent to the withdrawal is required. 3. The court may rule that the obligor will not receive the parenting time adjustment for the next twelve-month period. After a twelve-month period during which the obligor did not receive the parenting time adjustment, the obligor may petition the court to modify the child support order. The obligor may be granted a prospective parenting time adjustment upon a showing that the obligor has actually exercised the threshold number of overnights in the preceding twelve months. No retroactive modification or credit from the child support guidelines amount shall be granted based on this section. Requiring counsel to choose between having malpractice coverage and getting paid for work done is no choice at all. The real "choice" resulting was between refusing to work for clients who do not have money on retainer at all times, or continuing to do work knowing that there was no practical way to get paid after the end of the case if the client did not wish to voluntarily pay the bill. Scenario eight shifts the reduced premium the other way, to the member, for the same reasons, and to the same effect, as set out in scenario four, but with smaller totals, since the spousal survivorship interest has been reduced.10 bsp; (e) whether, if the move is allowed, there will be a realistic opportunity for the non-custodial parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship. bsp; a. Difficult standard, however; parental preference in both state law and even of constitutional dimension per United States Supreme Court in Troxel PAN style="FONT-SIZE: 14pt"> The scant federal authority has led to the same result as the state cases, but by way of different rationales, primarily involving deferral to state courts in domestic relations cases,1 or squarely addressing and refuting a wide assortment of federal offenses allegedly committed by spouses in state divorce courts.2 There is little case law guidance as to what would be an appropriate weighing of risks and burdens, or why. Several courts have ruled that the SBP be kept in effect for protection of the former spouse’s interest, using one theory or another, but their reasoning has often been sketchy, or faulty. Shortly before the parties’ wedding, they signed a prenuptial agreement. After the marriage, the parties purchased a home in Las Vegas and purchased an undeveloped lot in Cold Creek, Nevada. The wife filed for divorce in 1989. The lot was held in joint tenancy with the husband’s infant grandson. The husband did not object to the lot being characterized as community during trial and himself labeled the lot as a community asset. After a trial, the district court found that the lot was community property. The district court ordered the lot sold and that the proceeds be divided equally between the parties. The following paragraph is a safeguard paragraph intended to allow relatively painless discovery from the military pay center in the event further information is necessary to come up with an enforceable order. It is probably only necessary in cases in which the Member is still in service on the date of divorce, so that some information is not known at that time. The father sought to move with the children to Pennsylvania. The father indicated that his mother owned a four bedroom house there which would provide a bedroom for each child. The grandmother also had an established relationship with the children. The father testified that his mother was one of eleven children and that there would be an extended family of aunts and uncles within driving or walking distance. The father indicated that he expected to inherit the home when his mother died. The district court allowed the move. The rules for modifying child custody orders, on the one hand, and child support orders, on the other, are radically different. As set out above, when all parties leave the State establishing a custody order, the Home State of the child becomes the central inquiry. Not so for a child support case. When all parties have left the State with CEJ over child support, they are both entitled to enforce the support anywhere they choose to register it. In order to modify it, however, each has precisely the same burden - to register in and move to amend where the other party (custodian or non-custodian) happens to be living.1 You can find Rivero v Rivero Opinion Subsection One Divorcing the Military and Serving the Civil Service Section II Subsection Public Employees Retirement System PERS Benefits Section III Subsection C P Reno divorce family law expert Introduction to Nevada law of community property and debt division Rivero v Rivero Opinion IV A Subsection One Rivero State Bar Amicus Brief Approches Relating to Unequal Joint Custody Is There a Pocket Where to File and Litigation Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Civil Service The Marren and Page Case List Oren v Deptartment of Human Resources Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Coping with COLAs Divorcing the Military and Serving the Civil Service Section II Subsection The Marren and Page Case List Ormachea v Ormachea Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Uniform Child Custody Enforcement Act Rivero State Bar Amicus Brief Discussion The Marren and Page Case List Barrett v Franke In re Wilsons Estate Peters Why the Nevada Welfare Division is Calculating Interest and Penalties Incor Rivero v Rivero Opinion Subsection One available at lvfamilylawyer.com by clicking above. 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