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The Marren and Page Case List Alba v Alba
Learn more about The Marren and Page Case List Alba v Alba.
Community Property valuationThe law regarding the member’s filing of a bankruptcy petition during the divorce (before the former spouse’s interest is ruled upon by the divorce court) is not well developed, and the results are uncertain. More is known about the effect of a member’s filing a bankruptcy petition after a divorce court has ruled that a former spouse is entitled to a portion of the retired pay. Military-related divorce cases involving a court of some other country, as well as the federal and State law applicable to these cases, illustrate the principle of "the danger of unintended consequences."1 Given the enormous number of American service personnel stationed abroad in the past 50 years,2 it seems almost certain that the number of actual persons affected is far higher than the relatively few published cases would indicate. Examining the facts of such a case can be highly instructive. bsp; 2. Under NRCP 60(b), the distribution of disclosed property can be changed due to fraud, mistake, etc. The dissent - in 26 pages - viewed the allocation to the mother of "daily care and control" to be an award of "sole custody," and reasoned that if one parent had sole custody, the other parent definitionally had none. Five years later, the Eighth Circuit in Bush v. Taylor, 912 F.2d 989, vacating 893 F.2d 962 (8th Cir. 1990), concurred as to the non-dischargeability of the former spouse’s future interest in payments to the former spouse, but held that any sums paid to the member and kept rather than being paid to the former spouse were retained by the member wrongfully, and he remained liable despite the bankruptcy for the full amount of payments that should have, but were not, made to the former spouse. The bankruptcy thus had no impact on the former spouse’s rights. After the fall of Rome, marital practices in the West devolved to the level of tribal or local custom. The practice of community ownership had existed among the Germanic tribes after the fall of Rome, and was brought by them in their migrations to and through the Iberian Peninsula to what is now Spain and France.2 5) This parenting time credit reflects the presumption that while exercising parenting time, a parent is responsible for and incurs the costs of caring for the child, including but not limited to, food, clothing, transportation, recreation and household expenses. Both Birnbaum and Enrique M. recognize that disputes over the details of residential timeshare arrangements in cases involving joint physical custody are best settled by the parents, not the courts. Enrique M., 18 Cal. Rptr. 3d at 314 (noting that such adjustments are "not on a par with a request to change physical custody from sole to joint custody, or vice versa"). Thus, they refuse to fuel these disputes by expanding them into full blown custody proceedings, or reviewing them on appeal as if that is what they involve. If the parents cannot agree on the child's schedule, the family court should be held to "possess[] the broadest possible discretion in adjusting co-parenting residential arrangements involved in joint physical custody." Birnbaum, 260 Cal. Rptr. at 216. This rule fosters the policy presuming joint custody to be in a child's best interests and may even "obviate the need for costly and time-consuming litigation to change custody, which may itself be detrimental to the welfare of minor children because of the uncertainty, stress, and even ill will that such litigation tends to generate." Enrique M., 18 Cal. Rptr. 3d at 313 (internal quotation omitted). One of the most important variables in determining the proper amount of child support is the form of custody ordered by the court. Embedded in the child support guidelines of all the states is the presumption that the court will order "standard visitation" of 20% overnight visitation with the non-custodial parent. This 20% figure is based on 73 days: every other weekend (52 days), plus two weeks in summer (14 days), plus Mother's Day or Father's Day (1 day), plus Thanksgiving or Christmas (2 days), plus birthdays (2 days), plus a miscellaneous day (1 day). See Karen Czapanskiy, "Child Support, Visitation, Shared Custody and Split Custody," in Child Support Guidelines: The Next Generation 43, 44 (U.S. Dep't Health & Human Services, Office of Child Support Enforcement, 1994); Karen Czapanskiy, Child Support and Visitation: Rethinking the Connection, 20 Rut.-Cam. L.J. 619 (1989). When the parents have some form of shared physical custody that is over this 20%, the presurnption embedded in the guidelines no longer applies, and an adjustment to the support order should be made. SUP> In general, if the increase in the value of the separate property during the marriage is the result of the normal, or expected, appreciation in the asset (such as interest earned in a savings account), the increased value belongs to the owner-spouse as his separate property.10 On the other hand, if the asset has increased in value during the marriage as the result of the spouse’s labor and skills, the increase in value belongs to the community.11 However, in the latter situation, an allowance is made for the natural increase in the value of the asset which would be expected from a reasonable return on the separate property investment.12 Furthermore, because of the statutory presumption that rents, issues and profits from separate property are also separate property, the burden is on the spouse claiming that an increase is due to the labor and skills of the other spouse to rebut this presumption.13 While there are some variations around the country in both the discretion of courts and the role of fault in dividing property, the great majority of States today perform a division of assets in accordance with the property accrued during the marriage, whether described as community property or equitable division. Most member-defendants, faced with the near-certainty of an identical result (at much greater expense, through two divorce actions) will relent and permit litigation of all claims in the court hearing the other property/debt/custody/support issues - almost always, the jurisdiction where he is living. 65279;The exceptions and anomalies to this line of cases are few and far between. In 1997, the Kansas Court of Appeals heard and decided In re Marriage of Pierce, a "double-divorce" case in which both parties were apparently fully aware of the retiree's disability at the time of divorce. The court found that the law was so well developed by the time of the divorce that if the spouse had sought to protect against the conversion of retirement to disability benefits, she could easily have done so, explaining that it felt its result was required under Kansas state law statute of limitations. The dissent noted that the result reached was patently unfair to former spouses. The Supreme Court disagreed with the district court’s conclusion as to constitutionality. The Court noted that the right to travel encompasses three components protecting the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State. The Court also affirmed that it has long recognized that a supportable classification between individuals was not unconstitutional so long as "all persons similarly situated are treated alike." The Supreme Court reversed. The Court found the support and property provision were incapable of being separated, therefore the entire agreement was invalid. The Court discussed the Pereira and Van Camp methods of apportionment. Under the Pereira method of apportionment, the court was to allocate a fair return on investment to separate property and to allocate any excess to community property as arising from the husband’s efforts; in the absence of a fair return, the court would adopt the rate of legal interest. Under the Van Camp method of apportionment, the court allocated to the community an annual sum equal to salary which would have to be paid to an employee rendering sevices proportionate to the husband’s and treated the balance as separate property attributable to the normal earnings of the separate estate. The Court stated that the preferred method of apportionment of separate and community property is the Pereira method, whereby a fair return on investment was allocated to separate property and excess to community unless the owner of the separate property could establish a different method of allocation was more likely to accomplish justice. The Court found nothing which would not indicate the Pereira method was not appropriate. The Court remanded for an allocation of the community and separate property interests. The Court specifically affirmed the lower court’s order that the wife’s share would not revert to the husband if she predeceased him, but would instead continue being paid to her estate, explaining that the community interest was divided upon divorce to two sole and separate interests, citing 15A Am. Jur. 2d Community Property § 101 (1976), so that even if her estate was not listed as an alternate payee as defined in NRS 286.6703(4), the estate was entitled to the payments that she would have received if alive.23 The Supreme Court affirmed. The Court noted that the Schwartz factors were applicable even for a temporary relocation. In considering such a request, a district court should first determine whether the custodial parent wishing to leave Nevada demonstrated good faith reasons for relocating citing to Hayes v. Gallacher, 115 Nev. 1, 972 P.2d 1138 (1999). The Court further noted that once the custodial parent makes the threshold good faith showing, the district court should then apply the factors outlined in Schwartz to determine whether the custodial parent has demonstrated that an actual advantage will be realized by both the parent and the child by moving to the new location. Once the custodial parent has met that burden, the district court must go through the Schwartz factors. The Court rejected the suggestion that the mere demonstration of reasonable alternative visitation ends the inquiry under Schwartz. The Court noted that the child’s and the mother’s quality of life would remain essentially the same. The child’s lifestyle would not be enhanced by the move. The Court held that the district court did not err in applying the Schwartz factors to the case and did not abuse its discretion in denying the mother’s relocation motion. The Court found that the district court conducted a three day evidentiary hearing, analyzed the facts throughly, correctly applied the Schwartz factors and determined that relocation would not be in the child’s best interest. During a hearing concerning visitation, the father advised the Court that he had received a job offer in Georgia and might be moving there. The district court ordered if the father moved to Georgia, he could have visitation one weekend a month, plus a portion of the holidays and summer. The district court reduced the father’s support by $100 in any month that he traveled to see his son or that his son traveled to Georgia, and completely abated support during summer weeks that the child spent there. Practitioners must resist the urge to phrase an award as a sum of dollars plus a future percentage of increases. The military pay center will refuse to enforce the COLA provisions of awards phrased in that way, requiring the former spouse to return to court upon the granting of each subsequent COLA in order to get the dollar sum adjusted to reflect the new amount payable (or adjust the award to a percentage). The court nevertheless found no difficulty in turning aside the military member’s attack on the Arizona rule of finality of property distributions, finding the spouse’s rights to the Some courts new to Hague Convention cases will also require counsel to brief just why the court can, or should, grant the Petition, along with the Petition itself. The materials in Section II of this paper were designed to provide an easy organization of information and citations for insertion into such a brief. There have been a number of early retirement programs offered at times by the military, through which members could terminate service before completing 20 years, receiving lump-sum or time payments instead of a regular military pension. These programs have included the Variable Separation Incentive (VSI), the Special Separation Benefit (SSB), and an early (15-19 year)retirement program known as the "Temporary Early Retirement Authority" (TERA). The wife, at the time of the marriage, quit the job she had been working for 17 years. After one year of marriage the wife returned to work because the husband was so "penurious" that she needed additional income for living expenses as well as to care for her aged mother. The work she found paid much less than before. The district court awarded the wife $4,000 in lieu of a division of property interests plus $100 per month alimony to the wife with a reservation of jurisdiction over the alimony by the district court. And if the response is that volunteers just can¡¯t be made to perform this task timely, then the adjudicatory function should be assigned to Bar counsel. Alternatively, the structure of the program could be altered to charge a filing fee (say, $25 to $50), and use that to pay lawyers to act as fee dispute mediators and arbitrators. In this economic climate, given the number of unemployed and underemployed lawyers now around, it should not be hard to come up with someone qualified to deal with these matters for $50 apiece. Could the Bar call on senior judges to perform this task, for a modest stipend? 65279;The fonner spouse is taxed on Survivor's Benefit Plan payments as he or she would be for other payments from an annuity?" The payments to the former spouse are taxable income. The husband quit a well paying job, moved to Nevada, took a lesser paying job, and filed for divorce. The wife appeared and contested the grounds. The district court refused to admit or consider evidence concerning the husband’s previous income and income earning ability or what other jobs might be available viewing such testimony as speculative and irrelevant. The law regarding the member’s filing of a bankruptcy petition during the divorce (before the former spouse’s interest is ruled upon by the divorce court) is not well developed, and the results are uncertain. More is known about the effect of a member’s filing a bankruptcy petition after a divorce court has ruled that a former spouse is entitled to a portion of the retired pay. There is a significant level of consistency in the foreign decisions with the basic reasoning of Feder. In Cohen v. Cohen,11 for example, the parties came from Israel to New Jersey. The mother took the child back to Israel in April, 1992, against the wishes of the father. He applied under the Convention for the return of the child to the United States from Israel, and his request was granted. Even though the mother argued that her job and move to the United States of America was temporary, and that she did not have immigrant status here, the court found that the United States of America was the habitual residence of the child and that was the determining factor of the Convention. The husband inherited securities from his father. The title was later changed to the husband’s direction both parties as joint tenants with right of survivorship. The husband admitted to the presumption of a gift but claimed that it was rebutted because there was no donative intent, there was no delivery, and it did not become immediately effective. As to donative intent, the husband claimed that he only wanted to avoid the costs of probate. The wife testified that the husband expressed no such intention to her and he did not deny her testimony. Because of the martial difficulties the parties, were having at the time, the husband further contended that it would have been unreasonable to credit him with donative intent. The district court held that the securities were the husband’s separate property. After Congress enacted the USFSPA, the member returned to court seeking to modify the judgment to exclude the disability portion of the retired pay from division with his exspouse. The state court denied his request, holding the division of the disability portion of the military retired pay was proper. The member appealed. 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. We further conclude that the district court judge properly refused to recuse herself, and the chief judge properly denied Ms. Rivero's motion for disqualification. We therefore affirm the district court's orders regarding the recusal and disqualification. Further, the Court clarified in Fondi that the burden is on the employee spouse to prove that post-divorce extraordinary efforts were made in order to change the mathematical analysis, instead of the burden being on the non-employee spouse to show that no such efforts were made. The Court distinguished the legal division of the benefits, which occurs at divorce, from actual collection of benefits by the spouse, which is to take place at the employee’s eligibility for retirement. The premiums for Option A work like normal SBP premiums, in that they come "off the top" of benefits payable. Premiums for Options B and C are paid by way of that reduction, plus an actuarial reduction in the benefits paid. This is how the system accounts for coverage being in existence years before eligibility for retirement benefits is reached. You can find The Marren and Page Case List Alba v Alba A Trip Down Memory Lane Child Custody Rivero State Bar Amicus Brief Approaches Relating to Unequal Joint Custody A Brief Aside Regarding Disability and the TSP Peremptory challenges and rule changes a half step Divison of Military Retirement Benefits In Divorce Section IV Welfares Flawed Analogy Rivero State Bar Amicus Brief Discussion The Marren and Page Case List Lake v Bender Milisich v Hillhouse Jones v Ed Domestic Partnerships in Nevada Las Vegas spousal law expert Divorcing the Military and Serving the Civil Service Section II Subsection The Marren and Page Case List Guardia v Guardia Hamlett v Reynolds Protecting the Interest of and Getting Money from Peole in the Military Wha The Marren and Page Case List Ellet v Ellet Introduction to Nevada Divorce Law Public Employees Retirement System PERS Benefits Section III Subsection B Rivero v Rivero Opinion IV A Subsection Two The Marren and Page Case List Smith v County of San Diego and Vix v State o The Marren and Page Case List Petition of Fuller The Marren and Page Case List Alba v Alba available at lvfamilylawyer.com by clicking above. 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