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Rivero v Rivero Opinion Subsection Two
Learn more about Rivero v Rivero Opinion Subsection Two.
Timeshare required for joint physical custodyA former spouse’s right to a portion of retired pay as property terminates upon the death of the member or the former spouse; the court order can also provide for an earlier termination.5 Any right to receive payments under the USFSPA is non-transferable; the former spouse may not sell, assign, or transfer his or her rights, or dispose of them by inheritance.6 To obtain benefits extending beyond a member’s death, the former spouse must obtain designation as the beneficiary of the Survivor’s Benefit Plan (discussed below), which has its own technical requirements. As a matter of law, it is possible to value the spousal share in at least two ways. The standard "time rule" formula1 views 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. Nevada is clearly in the group of states with this view of the law.2 Nevada adopted the putative spouse doctrine. When there is a void marriage, community property principles will apply. The Court held the doctrine has two elements: (1) a proper marriage ceremony was performed, and (2) one or both of the parties had a good-faith belief that there was no impediment to the marriage and the marriage was valid and proper. Opinion at 4. The party asserting lack of good faith has the burden of proving bad faith. Whether the party acted in good faith is a question of fact. Once a spouse learns of the impediment, the putative marriage ends. Opinion at 5. However, because the annulment statute did not authorize it, and the cases which awarded spousal support nationally in putative spouse cases did so under circumstances of bad faith, no spousal support could be awarded because there was no bad faith. Most reviewing courts, however, have either found or simply assumed that Mansell is applicable in litigation concerning post-divorce recharacterizations by retirees, and attempted to apply it. Nevertheless, those appellate courts have almost uniformly reached the same conclusions as the court in Krempin, by other means. 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 The Convention, by its own terms, "ceases to apply" when the child attains the age of 16 years.7 In keeping with normal rules of statutory construction, this time limit presumably goes to the initiation of proceedings, not the final order, so as not to provide any incentive for delay. The article written by Ms. Decaria includes hypothetical scenarios demonstrating an intractable flaw in the original "Rivero Formula."23 Consideration of statutory deviation factors prior to application of the statutory cap has the effect of negating upward deviations when child support is reduced by the presumptive maximum. Although Ms. Decaria’s article was not intended to address all of the perceived detriments of the "Rivero Formula" as set out in the original Opinion, the authors of this Brief agree with her analysis. We concur that this Court should unequivocallywithdraw the original "Rivero Formula," because it could, and would, cause more problems than it would resolve. Rationales for that recognition usually include that the benefits accrued during marriage, that income during marriage was effectively 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. Finally, the question of whether child support can ever flow from a majority time-share parent to a minority time-share parent should be resolved, by either allowing it, prohibiting it, or permitting it solely in circumstances where the trial court has found that a joint physical custody situation actually exists, whether equal or unequal in timeshare. In every case, if local rules permit, recite full name and Social Security numbers of both parties to assist military pay center in enforcing order (format below is only an example). Complaining once a year at Ely about what was done during the last year - and waiting another year or longer for some attempt to address the problem - is not a particularly efficient means of managing concerns (although it beats the heck out of having no means at all for providing feedback to the Court). I just think we can and should do better than that. There may well be superior alternatives to this proposal, and if so I sure hope someone suggests them. The organized family law Bar must become more proactive in the legislative process. Too much, we have allowed private lobbying groups to speak for the family law bar. Experience has shown clearly that those organizations, and their representatives, have political and personal agendas considerably beyond looking out for equity, impartiality, and logic in family law. The Court noted that the only evidence which supported the daughter’s contention that the property was her mother’s separate property was the recitation in the deed that it was conveyed to her as "her sole and separate property." The Court cited to the usual cases that properties acquired is presumed community property and the presumption can only be overcome by clear and certain proof and cited to Todkill v. Todkill, 88 Nev. 231, 495 P.2d 629 (1972); Carlson v. McCall, 70 Nev. 437, 271 P.2d 1002 (1954) and Lake v. Bender, 18 Nev. 361, 7 P. 74 (1884). The Court found that the daughter presented no authority and the Court found none which supported her contention that the words "her sole and separate property" written in the deed were sufficient to overcome the presumption that the parcel was community property. The Court held that the phrase "her sole and separate property" by itself, without supporting evidence, was not clear and certain proof required to overcome the presumption. 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. It makes little sense for the law to protect the putative rights of those who do not even try to secure rights upon divorce, while denying any protection to those who believe they have already litigated and received a valid court order protecting those same rights, but that is the bottom line of the law as it now stands.1 Even the Department of Defense has recognized the unnecessarily harsh results that are produced by the current law,2 but Congress has not yet taken any action to correct the situation. Congress may will decide, as it has in the Civil Service and Foreign Service contexts, that more protection should be afforded a former spouse of a retired service member. This decision, however, is for Congress alone. . .¡¡. in no area has the Court accorded Congress greater deference than in the conduct and control of military affairs. 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." 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. B) A dependent child of a member or former member referred to in paragraph (2)(A)who was a member of the household of the member or former member at the time of the misconduct described in paragraph (2)(A) shall be entitled to receive medical and dental care, to use commissary and exchange stores, and to have other benefits provided to dependents of retired members of the armed forces n the same manner as if the member or form er member referred to in paragraph (2)(A) was entitled to re tired pay. The wife filed for divorce in April 1967. Service of process was made by publication and personal service outside the state. The husband failed to answer and default was entered. The decree was granted in May 1967, which awarded custody of the children to the mother, but in the absence of personal jurisdiction over the husband and since no property was located within the state, no provisions for child support or division of property were made. The husband moved to modify the decree February 1969. The husband requested certain visitation rights of the children and volunteered certain child support payments. In March, the wife moved to modify the decree asking for a division of property. After hearing both motions, the district court ordered the husband to deposit funds from a Canadian bank account into a trust account from which child support would be payable and that the remainder of the monies on deposit in the Canadian bank to be equally divided. The husband appealed contending that district court lacked jurisdiction to modify the final divorce decree concerning the property. A former spouse’s right to a portion of retired pay as property terminates upon the death of the member or the former spouse; the court order can also provide for an earlier termination.5 Any right to receive payments under the USFSPA is non-transferable; the former spouse may not sell, assign, or transfer his or her rights, or dispose of them by inheritance.6 To obtain benefits extending beyond a member’s death, the former spouse must obtain designation as the beneficiary of the Survivor’s Benefit Plan (discussed below), which has its own technical requirements. 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. The Perez-Vera] explanatory report is recognized by the Conference as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the convention available to all States becoming parties to it. B> The standard "time rule" formula seems simple enough - the spousal share is determined by taking the number of months of service during marriage as a numerator, and the total number of months of service as a denominator, and multiplying the resulting fraction by first one-half (the spousal share) and then by the retirement benefits received. Other courts have, similarly, found that a court can issue a spousal support award, post-divorce, sufficient to ameliorate the impact on an innocent former spouse whose "economic circumstances have deteriorated through no fault of her own" by reason of the former husband’s post-divorce application for disability benefits in lieu of retirement benefits.3 Where the member accepted the CBS/REDUX choice before the divorce, additional questions must be asked. Was the spouse aware of the election? Either way, did the spouse already obtain benefits from the cash pay-out? Who actually received what benefit from the cash payout would probably determine the equities of what compensation (if any) is due to the former spouse. 65279;The Arizona Court of Appeals was more direct in In re Gaddis when it held that divorce courts were only required to find reductions in military pay benefitting the member to bar compensation to the spouse if those reductions in retired pay existed when the award to the former spouse was made. The court saw the proscription of Mansell - that the USFSP A "does not grant state courts the power to treat as property divisible upon divorce military retired pay that has been waived to receive veterans' disability payments" - as a call to essentially take a snapshot when the award to the spouse is made. If sums of disposable retired pay had been waived up to that point, they were not divisible. Where a member sought a post-divorce reduction in retired pay, however, his efforts at re-characterization were seen as attempting a "de facto modification" of a final property award, which state law did not permit. The husband filed for divorce. In June 1911, the divorce was granted. The wife moved for a new trial under what is essentially the modern 60(b) rule. The Supreme Court indicated that it believed that courts should not be bound by technicalities prescribed by statute and should be vested with full authority to ignore excusable neglect or inadvertence where they may arise or exist without affecting the material rights of the parties. The new evidence was that immediately after obtaining the divorce, the husband returned to Chicago after having testified that he intended to make Reno his home for an indefinite period of time making his testimony false. The Court declined to consider that newly discovered evidence. The Court held that residence is a matter of intention. The Court noted that both parties had submitted the jurisdiction of the district court. The fact that the husband may have returned to Chicago after the case was over could, at best, only be considered impeachment of this trial testimony and then impeachment by inference only. In 2006, Congress altered the longevity rules.9 As of April 1, 2007, the military retired pay of retirees with more than 30 years of service is not limited to 75% of basic pay. Rather, new basic pay tables (to 40 years) are applicable for retirements on and after that date. Additionally, various enlisted and officer ranks had their basic pay increased for service longevity from a maximum of over 28 years to a maximum of over 36 years; in other words, monthly pay that used to "top out" at a certain point continued increasing with continued service. The Supreme Court affirmed. The Court noted that a failure to object in the district court barred the subsequent review of the objection citing to McCullough v. State, 99 Nev.72, 657 P.2d 1157 (1983). The Court noted that the husband failed to move for post-judgment relief or utilize any of the available procedures to preserve his objection on this issue. Because of that, the husband raised this issue for the first time on appeal. and the Court did not need to consider it citing to McKay v. City of Las Vegas, 106 Nev. 203, 789 P.2d 584 (1990). NCCUSL put significant energy into trying to harmonize the provisions of the UCCJEA with those of UIFSA. It is not always possible, given the very different jurisdictional foundations, but the intention is there, which is why so many of the definitional and other provisions read so similarly. Still, distinctions remain. Nevada adopted the new act as of October 1, 2003. The revised enactment was intended to eliminate inconsistent state interpretations in several ways, as explained in the preamble to the modified uniform act: B> Since, as detailed below, military members are now participants in the TSP program, there are multiple instances in which an attorney noting a disability in a military case should become concerned with the TSP account. The rules are rules of ethics, not of convenience. They are not to be followed only when it is "not so bad" to ignore them, or when it might cost a law firm a paying client, or cost a client a lawyer with whom he/she is comfortable or thinks he/she has an "extra edge." Compliance with those ethical rules is required for anyone wishing to remain a member of the Nevada Bar. See RPC 1.6; RPC 1.9; ABA Model Rule 1.9, comment 6 ("A lawyer may have general access to files of all clients of a law firm, and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer is privy to all information about all the firm’s clients"); EDCR 5.04, "Standards of Conduct," incorporating the Bounds of Advocacy; see also "The Lawyer’s Pledge of Professional Responsibility" (Clark County Bar Association, 1994). You can find Rivero v Rivero Opinion Subsection Two Las Vegas child visitation attorney Rivero State Bar Amicus Brief Part Two The Marren and Page Case List Choate v Ransom and Braddock v Braddock CSRS expert lawyer Las Vegas child visitation expert Divorcing the Military and Serving the Civil Service Section III Subsection The Marren and Page Case List McGuinnes McGuinnes Blaich v Blaich and Potte Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Divison of Military Retirement Benefits In Divorce Section V Subsection B Rivero v Rivero Opinion Section II A Division of Military Retirement Benefits in Divorce Section II Subsection A A A Brief History of Military Retirement Benefits in Divorce Litigation Legal Authority for Use in Requesting Fees in a Paid Case The Marren and Page Case List Rooney v Rooney The Marren and Page Case List Ellett v Ellett Gojack v Second Judicial Dist Rivero State Bar Amicus Brief Part Two Subsection III C The Marren and Page Case List Langevin v York Rivero State Bar Amicus Brief Part One Subsection II The Marren and Page Case List Milender v Marcum Cook v Cook and Guerin v Gu Divison of Military Retirement Benefits In Divorce Section IV Rivero v Rivero Opinion Subsection Two available at lvfamilylawyer.com by clicking above. Site Map Public Employees Retirement System PERS Benefits Section II Subsction B Divorcing the Military and Serving the Civil Service Section II Subsection Service Members Life Insurance What to Argue If Seeking to Prevent a Court with Jurisdiction from Exercisi The Marren and Page Case List Peterson v Peterson The Special Problem of Divorce Decrees Entered in Foreign Countries as to D Exhibits on Rivero Exhibit One |