 
|
The Concept of Divisible Divorce
Learn more about The Concept of Divisible Divorce.
Subject matter and personal jurisdiction A court must personal jurisdiction over either of the parties to the marriageB> Because of the nod in ICARA to "the applicable law governing notice in interstate child custody proceedings,"1 the better procedure is to file a "Declaration Establishing the Habitual Residence of the Child(ren)" in every Hague Convention case, using the format of the local version of the Uniform Child Custody Jurisdiction Act or Uniform Child Custody Jurisdiction and Enforcement Act in the state where the Petition is filed. P> In other words, where simultaneous child support proceedings are ongoing both here and elsewhere, the first question is which action was filed first. If it was the Nevada case, the action proceeds here unless the out-of-State party filed the other action within the time to answer or otherwise plead here, the objection to jurisdiction is timely filed here, and the other State is the child’s Home State. The following paragraph is an anti-fraud clause designed to allow the court to treat the spousal share AS the spousal share, even if the entire retirement is merged into another form of benefit. And judges should consciously consider their jurisdiction to proceed before wading into the merits of cases, with sufficient knowledge of the jurisdictional rules both to understand what they should not do, and to ignore legally fatuous arguments based on indefensible attacks on their legitimate jurisdiction. If the agreed facts resolve a jurisdictional question, one way or another, the merits can be addressed; if not, the court should focus on convening such proceedings as are necessary to make the factual determinations that permit the jurisdictional call to be made promptly, economically, and correctly. vs. Case No. 48944 It can hardly be adequately stressed that the Convention does not give rise to custody proceedings; as explained in greater detail below, it is concerned with return of children to their countries of habitual residence, which is where any custody proceedings should be held. To the degree that the order rendered by a court deciding a Hague Convention case provides physical "custody" of a child, it does so only long enough to allow a petitioner to reach and enter another State, and perhaps long enough to initiate appropriate custody proceedings there.10 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. b) If there is not a court order awarding parenting time, the court shall determine the child support award without consideration of the parenting expense adjustment. If a parenting tirne order is subsequently issued or is issued in the same proceeding, then the child support order shall include application of the parenting expense adjustment. Subd. 2. Calculation of parenting expense adjustment. The obligor is entitled to a parenting expense adjustment calculated as provided in this subdivision. The court shall: (1) find the adjustment percentage corresponding to the percentage of parenting time allowed to the obligor below: Effective April 1, 1995, revised regulations2 allowed use of formulas under certain circumstances, most commonly so a pre-retirement divorce decree could specify that the denominator in a time-rule calculation was to be the total service time. Traditionally, most retirement plans have been "defined benefit" plans, but this is changing rapidly in the post-Enron world, as many companies are terminating such plans, in or out of bankruptcy, and converting to "cash plans" or defined contribution plans, at least for all new workers. This is setting up a situation in which the controlling decisional law in many States was developed to distribute an entirely different kind of benefits (defined benefit plans) than will actually be presented in many divorce cases (defined contribution plans). In a Wright/Wesley situation (50/50 custody), there would be cross-calculations, and the flow of support, in exactly the same amount, would be reversed (the party making $10,000 per month would pay the party making $5,000 per month the presumptive maximum sum of $664). Well over $100,000 of principal arrearages in child support accrued from 2000 to 2008, and the custodial parent sought to reduce to judgment the principal, interest, and penalties accrued during that time.2 Mr. Vaile’s counsel contacted the Attorney General’s office and solicited a "Friend of the Court" brief to buttress his contest of the massive arrears accrued during that time. For reasons commented upon below, the Attorney General’s Office agreed. P> The court has continuing jurisdiction to modify child custody awards after entry of a decree, irrespective of any express statement of continuing jurisdiction, under the above statute and NRS 125.510 (permitting a determination of custody during the pendency of an action, at the final hearing, or any time thereafter during the child’s minority, and permitting modification or the vacating of any such order, "even if the divorce was obtained by default with an appearance in the action by one of the parties," but providing that the person seeking such an order "shall submit to the jurisdiction of the court.") 65279;In other words, the client should be advised to not remarry prior to the relevant age, unless willing to forego continuing payment of the SBP benefits. Extraordinary visitation as a deviation factor arises in two different scenarios under the guidelines. First, the guidelines may provide that shared custodY, the particular custodial arrangements, or extraordinary visitation are all deviation factors. E.g., Gray v. Gray, 885 s.w .2d 353 (Tenn. Ct. APP. 1994) (guidelines do not apply in cases of shared custody, split custodY, and extended visitation; determination of proper support in those cases should be made on case by case basis). Second, the guidelines might provide that "shared custodY" comes into play when the non-custodial parent reaches a particular threshold amount of visitation, usually somewhere above 30%. In this latter scenario, visitation above the presumed 20% amount under the guidelines, but beloW the threshold amount for shared custody, is extraordinary visitation, and such extraordinary visitation may necessitate deviation. In both these cases, the court must decide whether to deviate from the presumed guideline amount because of the amount of time the children spend with the non-custodial parent. E.g., Laliberte v. Laliberte, 105 Ohio APP· 3d 207, 663 N.E.2d 974 (1995). SPAN> In the Matter of Parental Rights as to T.M.C., 118 Nev. 563, 52 P.3d 934 (2002)The Court concluded termination would only serve the father’s personal financial interest, and held a parent could not voluntarily terminate his parental rights and obligations unless such termination is deemed to be in the child’s best interest, and even if the parent engages in conduct that satisfies NRS 128.105, the child’s best interests must be served by termination of parental rights for such termination to be appropriate. SPAN> The rules required parties to provide information at the outset of a custody proceeding to assist the court in resolving jurisdictional issues. Specifically, each party in his or her first pleading, or in an affidavit attached to that pleading, was required to provide the court with (1) the child’s present address; (2) the place where the child had lived for the last five years; and (3) the names and addresses of persons with whom the child lived during that period. It is possible for a military retiree to simply continue receiving military retired pay, and then go to work for, qualify for, and begin receiving retirement benefits through the Civil Service system. It is also possible for a military retiree to "roll over" the accrued years of military service into a civil service retirement. Which is the better choice depends on the rank and grade achieved by the member in each system. If the member had a relatively low military rank, but achieved a high "GS" rating in the Civil Service, then the years of military credit might well be most valuable if treated as additional service credits in the Civil Service calculation. Obviously, the calculations will vary case by case. The Supreme Court affirmed. The Court concluded that the tender years doctrine of Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969) and the holding of Cooley v. Cooley, 86 Nev. 220, 467 P.2d 103 (1970) permitting of an award of the custody of children to an adulterous parent if other factors outweigh that marital misconduct were not applicable to the case. The Court concluded that the issue was controlled by Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968), and Harris v. Harris, 84 Nev. 294, 439 P.2d 673 (1968). The Court restated the Murphy standard, that a change of custody is warranted when the circumstances of the parents have materially altered, and the child’s welfare would be substantially enhanced by the change. The Court held that the lower court concluding that the mother may have not been mature to undertake all of the duties of the mother and take care of the child and the father acted appropriately in caring for the child was not an abuse of discretion citing to McGlone v. McGlone, 86 Nev. 14, 464 P.2d 27 (1970) and Adams v. Adams, 86 Nev. 62, 464 P.2d 458 (1970). The trust filed writ of prohibition in Supreme Court under NRS 34.320. The petition was granted. The Court found that the trust was not a constructive party just because its attorney was the same lawyer that represented the former husband; it was not obligated to intervene under NRCP 24(a)(2) just because it knew of the action. The Court held that all "persons materially interested in the subject matter of the suit be made parties so that there is a complete decree to bind them all. If the interest of absent parties may be affected or bound by the decree, they must be brought before the court or it will not proceed to decree." Id. at 553. Under NRCP 19(a), a party must be joined if he if he claims an interest in the subject matter of the action. The Court concluded that the order of the district court was void. The district court was precluded from enforcing its void order and from issuing any orders affecting the rights of the Trust until it was properly joined as a party. The universe has changed. We certainly do some amazing things for our beloved pets these days, from Burberry raincoats and Louis Vuitton collars, to aromatherapy massages and holistic biscuits. Some buy cutesy little dresses, outfits, and jewelry for their pets. There are numerous stores in the Las Vegas area alone devoted solely to the business of pampering your pet. Some of us have even hired psychotherapists to assist "Fluffy" with his or her "issues." After a 37-year marriage, the parties entered into a property settlement agreement which required the parties, inter alia, to equalize their Social Security payments upon retirement. The husband refused to apply for benefits upon reaching age 65 and wife asked the district court to enforce the agreement of the parties. The district court agreed with the wife and granted her requested relief and attorney’s fees. The Supreme Court affirmed. The Court noted that the full faith and credit clause of the United States Constitution did not foreclose another custody order based upon a subsequent change of circumstances citing to Lyerla v. Ramsay, 82 Nev. 250, 415 P.2d 623 (1966). The Court found that the record could be read to show that a change of circumstances found by the district court, and to support its conclusion that the child’s welfare was best served by awarding custody to the mother, noting that the mother remarried and established a home suitable for the child’s care and there was no suggestion that the mother was unfit to enjoy custody. The Court noted that the policy of the State was that custody should not be given to a nonparent unless the parent is found to be unfit citing to McGlone v. McGlone, 86 Nev. 14, 464 P.2d 27 (1970). As to notice to the father, he had not been awarded custody by the Texas court and was not a party to the action. The Court held that notice to the father was not required. In other words, the effects of the "compounding" that the AOC apparently wanted to avoid, but the LCB directed, are actually pretty small- nine dollars from 2001 to 2007. And that entire difference could be explained by rounding (or rounding errors) in prior years. Doing the calculations for the rest of the brackets shows the same pattern - the final chart is higher than the number that would be yielded by the DOL method in an amount increasing by about an extra dollar each bracket, so in the "no limit" bracket, the DOL method yields $913.64 (rounding to $914), while "compounding" from last year's number yields $929.68 (rounding to $930, the number published in the final chart). That difference, the highest on the chart, is $16. One portion of the case law is apparently unanimous. A comprehensive review of the cases throughout the United States reveals that there is no legitimate authority for the proposition that where the divorce decree preceded Mansell, there can ever be a waiver of retired pay by the retiree in favor of VA disability benefits without compensation being required to be paid to the former spouse, dollar for dollar, as to all sums the retiree’s actions caused to be diverted from her back to him. The UCCJA was adopted as law in all 50 States, the District of Columbia, and the Virgin Islands. A number of adoptions, however, significantly departed from the original text. In addition, almost thirty years of litigation since the promulgation of the UCCJA produced substantial inconsistency in interpretation by state courts. As a result, the goals of the UCCJA were rendered unobtainable in many cases. 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. Even on economic issues, it is virtually a given that the full range of damages to a left-behind parent, and to the child, is not known at the time of the child’s recovery and return. Especially as to health effects, post-traumatic stress, and other fall-out from the experience, the left-behind parent and the child might not even have suffered the worst of their damages at the moment the child is returned. The spouse might be able to extend the period within which he or she can request a deemed election by returning to court after the divorce and obtaining an order stating that the spouse is to be deemed the SBP beneficiary. This is because the member is obliged to make the election "within one year after the date of the decree of divorce, dissolution, or annulment,"1 whereas the former spouse must make the request "within one year of the date of the court order or filing involved."2 As income increases, any pretense of adjustment according to the parent's "means" disappears. A $50,000 per year wage-earner should pay 18% of that income - $750 per month - in child support, but the "presumptive maximum" lowers that to $580 next year less than 140/0. At $75,000 per year, an obligor pays a presumptive maximum of $638 per month - about 10% of gross income. At $100,000? Eight percent. And so on through the brackets, to where a non-custodial parent making $250,000 per year pays about four percent of monthly income - $930 on a child. Most folks in that income bracket have far larger monthly car payments (unless they pay cash for such toys, as they can). P> In Johnson, the Nevada Supreme Court held that where an increase in the value of separate property occurs during marriage as a result, either in part or in whole, of the owner-spouse’s labor and skills, the increased value should be apportioned between the separate property of the owner and the community property of the spouses.15 In so allocating the increased value, the court may choose between two approaches, the first commonly referred to as the "Pereira" approach, which is based upon Pereira v. Pereira,16 and the second commonly referred to as the "Van Camp" approach, which is based upon Van Camp v. Van Camp.17 B> Because of the nod in ICARA to "the applicable law governing notice in interstate child custody proceedings,"1 the better procedure is to file a "Declaration Establishing the Habitual Residence of the Child(ren)" in every Hague Convention case, using the format of the local version of the Uniform Child Custody Jurisdiction Act or Uniform Child Custody Jurisdiction and Enforcement Act in the state where the Petition is filed. A complaint sought declaration of interest in property a couple had acquired over 23 year co-habitation stated cause of action for breach of an implied-in-fact contract to acquire and hold property as if married or general partners. The district court granted summary judgment under Rule 12(b). The Supreme Court reversed. The Court held that unmarried individuals who are You can find The Concept of Divisible Divorce Termination of Parental Rights Nevada UCCJEA expert Introduction to Nevada Divorce Law The Marren and Page Case List Magiera v Luera and Russo v Gardner Rivero v Rivero Opinion Subsection One Divorcing the Military and Serving the Civil Service Section II Subsection An Introduction to Pension in Nevada Divorce Law Section III Subsection C Exhibits on Rivero Exhibit Three Section I The Marren and Page Case List URESA jurisdiction The Concept of Divisible Divorce available at lvfamilylawyer.com by clicking above. Site Map The Marren and Page Case List Sogg v Nevada State Bank Fick v Fick Dimick v Divison of Military Retirement Benefits In Divorce Section V Subsection G D The Marren and Page Case List McKissick v Mckissick Substantive Issues The Childs Habitual Residence at the Time of Removal or An Introduction to Pensions in Nevada Divorce Law Conclusion Las Vegas annulment Divorcing the Military and Serving the Civil Service Section II Subsection |