The Marren and Page Case List Alba v Alba

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Community Property valuation

The Fifth Circuit has simply held that an award to a former spouse of a portion of the 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.1 The Ninth and Eighth Circuits have generally agreed with this principle, although their opinions diverge on the question of arrearages. The Fifth Circuit has simply held that an award to a former spouse of a portion of the 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.1 The Ninth and Eighth Circuits have generally agreed with this principle, although their opinions diverge on the question of arrearages. I do not believe Garner can fairly be read to create the new restriction. Garner involved a "rogue" attorney, Larry Davidson, who "without the knowledge or approval of his clients, . . . settled their case for $160,000, forged the necessary settlement papers, and disappeared with the money." The district court vacated the stipulated final judgment under NRCP 60(b) for fraud on the court. The hospital appealed, claiming that the Garners should be stuck with the "benefit" of the bargain struck by their criminal/fraudulent attorney. The Court noted that there was substantial, if conflicting, evidence to support the finding that the community made no measurable contribution to the enhancement of the husband’s separate property. The Court concluded if the community made no measurable contribution to the enhancement of the husband’s separate property, the community would not, be entitled to an apportionment of any increase in the separate property. The Court also noted that while property acquired after marriage is presumed to be community property, the presumption may be rebutted by clear and convincing evidence citing to Zahringer v. Zahringer, 76 Nev. 21, 348 P.2d 161 (1960); Carlson v. McCall, 70 Nev. 437, 271 P.2d 1002 (1954) and In re Fuller, 63 Nev. 26, 159 P.2d 579 (1945). The Court further noted that title to community property could be vested in either spouse without losing its character as community property, and that a court must look to the source of funds with which it was acquired. If the property was acquired by community funds or credit, it would be community property; if acquired by separate funds or credit, it would be separate property citing to In re Wilson's Estate, 56 Nev. 353, 53 P.2d 339 (1936). The Court held that the wife had not proven by clear and satisfactory proof the assets she was claiming were purchased with community funds or credit or were acquired by the husband’s community toil or talent. divorce is not among the inalienable rights of man or the ones granted by Magna Charta, the federal or state constitution, or the common law, and, except at the will and subject to any restrictions imposed by the legislature, has never been recognized as one of the guaranteed privileges of the citizen . . . . nbsp;funds. The Court noted the Pereira method provided that a court should determine the value of the separate property contribution, plus a "fair return" on the separate property investment, in order to ascertain the total separate property interest in the asset. The Court concluded the district court should have backed out a 20 percent contribution made by the husband’s son prior to determining the fair return. Footnote one stated that the Pereira method was, in most cases, the preferred method for apportionment of community and separate property interests in Nevada citing to Cord v. Neuhoff, 94 Nev. 21, 26, 573 P.2d 1170, 1173 (1978). The Court held the district court committed error by failing to failing to reduce the amount of the husband’s remaining separate property interest in the business by the amount withdrawn as separate funds. The Court further held that to determine the husband’s separate property interest in the business, the district court needed to subtract from the value of the separate property investment the amount of separate property withdrawn. The Supreme Court affirmed. The Court began by noting that the district court enjoyed broad discretionary powers in determining custody and the district court’s ruling would not be disturbed absent a clear abuse of discretion citing to Gilbert v. Warren, 95 Nev. 296, 594 P.2d 696 (1979) and Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991). The Court also noted that in custody matters, there was a presumption that the district court properly exercised its discretion citing to Culbertson v. Culbertson, 91 Nev.230, 533 P.2d 768 (1975). The Court found that the district court considered the stability of the father’s home, employment history and marital status in deciding the child’s best interest. The record also showed the district court relied on the recommendations contained within the outsourced evaluation. Members who first entered service between September 8, 1980, and July 31, 1986, must use the highest 3 years of basic pay rather than terminal basic pay. This has the effect of lowering retired pay for members whose pay increased at any time during their three most highly compensated years of service. The father appealed, among other issues, and contended that the district court erred in modifying the support $1,000 because the award was in excess of the statutory maximum of $500 and the district court did not give specific findings supporting a deviation from the statutory cap as required. The Supreme Court reversed as to this issue. The Court noted while the district court had discretion in setting support, it had to issue support awards within the parameters of NRS 125B.080, citing to Lewis v. Hicks, 108 Nev. 1107, 1111-12, 843 P.2d 828, 831 (1992). The Court remanded for either specific findings or redetermination of support owed. No explanation for the omission of community property from the separate maintenance statutes appears on their face, in the case law, or in any surviving legislative history. Still, each spouse owns an undivided one-half interest in all community property pursuant to NRS 123.225 (although that statute dates to only 1959), so interpreting the statute as including authority for the district court to make orders concerning community or joint tenancy property, as well as separate property, seems reasonable. The following paragraph provides that if a member dies before the Alternate Payee begins receiving benefits and a refund of the contribution account is payable, the Alternate Payee will be eligible to receive the specified share of the refund (NOTE: this only applies if the Member dies before retirement without a spouse or eligible survivors under NRS 286.671-286.6791). Spousal consent is also required for any loans borrowed against the TSP. Again, a specific category of "hardship" for loan purposes is "unpaid legal costs associated with a separation or divorce." Such a loan, if taken, accrues interest at the same rate paid on the "G" category of investments. B> Neither the Hague Convention, nor ICARA, has any particular requirement for a formal hearing prior to issuance of an Order Directing Return of Child. In practice, however, judges are loathe to issue any such orders without convening at least one hearing on the question of whether such an order should issue. In 1993, the Legislature resolved the potential conflict between the concept of a no-fault divorce on the one hand, and the consideration of marital misconduct on the other, when determining an award of alimony, by deleting the phrase "having regard to the respective merits of the parties" from NRS 125.150(1). SPAN> or recognized by the laws of the foreign country. In countries party to the Hague Service Convention or Inter-American Service Convention, the foreign Central Authority may attempt to accomplish service under the applicable Convention if the prevailing Status of Forces (SOFA) agreement permits access to the base. Installation commanders may impose reasonable restrictions upon persons who enter their installations to serve process. It may therefore be necessary for the foreign Central Authority to effect service on the individual outside the installation. Some foreign Central Authorities may decline jurisdiction over cases involving U.S. military personnel depending on the SOFA agreement applicable (if any). Likewise, a request for service on U.S. military personnel pursuant to a letter rogatory may prove difficult as the foreign court may decline jurisdiction. It may be necessary to retain the services of a private attorney or other agent to effect service on the individual outside the U.S. military installation. Service by registered mail is also another option. You may wish to consult the Judge Advocate General’s office for the appropriate branch of the U.S. military at the Pentagon for further guidance. See also, A Guide to Child Support Enforcement Against Military Personnel, Serving the Soldier, (February 1996), Administrative and Civil Law Department, Legal Assistance Branch, The Judge Advocate General’s School, U.S. Army, Charlottesville, VA 22093-1781 and Barber, Soldiers, Sailors and the Law, Family Advocate, ABA Family Law Section, Vol. 9, No. 4, 38, 41 (Spring 1987).1 The Supreme Court reversed. The Court noted where part of the purchase price of one spouse’s separate property is paid with community funds, the community acquires a pro tanto interest in the property, citing to Barrett v. Franke, 46 Nev. 170, 208 P. 435 (1922). The Court held that there was no apparent justification for ignoring the community property interest in the home. As to the house which was built on the lot, the Court noted that the labor and skills of a spouse belong to the community citing to Ormachea v. Ormachea, 67 Nev. 273, 297, 217 P.2d 355, 467 (1950) and held that the husband’s labor was a community asset even if it occurred after his regular job ended. B> IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that [MEMBER] shall obtain a policy of life insurance on [MEMBER]’s life with [FORMER SPOUSE] as beneficiary and owner (or transfer an existing policy to such status) in a minimum amount of [APPROXIMATE PRESENT VALUE OF SPOUSAL INTEREST] and maintain such policy until the date on which [FORMER SPOUSE]’s interest in the retirement benefits set out above are fully secured by the putting into place of survivorship benefits fully protecting [FORMER SPOUSE]’s right to collect the sum specified above irrespective of [MEMBER]’s continued survival. Shortly before the wedding, the couple signed a prenuptial agreement drafted by the husband. The agreement set forth, among other things, a provision waiving the parties’ rights to alimony upon divorce. The body of the agreement acknowledged that each party attached a schedule of their various premarital assets and obligations. However, the husband did not attach his schedule until a year after they signed the agreement. The wife filed for divorce. After a trial, the district court entered a decree and issued findings of fact and conclusions of law. In its findings, the district court: (1) characterized a lot as community property and ordered it sold; (2) valued the Las Vegas house at $60,000; (3) declared the alimony waiver provisions of the prenuptial agreement unenforceable; and (4) granted the wife $14,400 in unpaid support, $3,000 in rehabilitative alimony and $3,000 in attorney’s fees. UP> These limitations override State long-arm rules, and must be satisfied in addition to any State law jurisdictional requirements. Cases lacking such jurisdiction can go forward, but they will not result in enforceable orders as to the retirement benefits. The statute effectively creates an additional jurisdictional requirement, which for lack of a better title can be called "federal jurisdiction." This legal note is from Marshal S. Willick, Esq., 3591 E. Bonanza Road, Ste 200, Las Vegas, NV 89110. If you are receiving these legal notes, and do not wish to do so, let me know by emailing this back to me with "Leave Me Alone" in the subject line. Please identify the email address at which you got the email. Your State would be helpful too. In the mean time, you could add this to your email blocked list. And, of course, if you want to tell me anything else, you can put anything you want to in the subject line. Thanks. Gojack v. Second Judicial Dist. Court, 95 Nev. 443, 596 P.2d 237 (1979) The wife filed her complaint for divorce in August 1978. Trial was set for July 1979. In March the district court, sua sponte, ordered a bifurcated trial with the hearing on the divorce set for March 21, 1979, and trial on the determination of the property rights scheduled for the original trial date. B> From a retirement benefits point of view, the death of one party or the other is merely another "value-altering possibility" to be anticipated and structured into the disposition of the retirement benefits upon divorce. The Supreme Court reversed. The Court began by noting that once primary custody had been established, a court could consider changing custody only if the circumstances of the parents had been materially altered the child’s welfare would be substantially enhanced by the change citing to Murphy v. Murphy, 84 Nev. 710, 711, 447 P.2d 664, 665 (1968). The Court then held that "the moving party in a custody proceeding must show that circumstances . . . have substantially changed since the most recent custodial order. . . . Events that took place before that proceeding [are] inadmissible to establish a change of circumstances," citing to Stevens v. Stevens, 107 Ore. App. 137, 810 P.2d 1334, 1336 (Or.Ct. App. 1991). Id. at 1408. The Court concluded that it was clear that some of the circumstances the district court considered were not appropriate under Murphy as the district court received and considered extensive testimony and numerous exhibits related to the period before the date of divorce. The Court discussed harmless evidence. Even though the district court recognized that the evidence was not relevant, it expressly based its decision on evidence prior to the date of divorce which included the mother’s move to Kansas City and the district court finding that the mother did not provide the father "certain reports" concerning the child. Since the district court considered the mother fit, absent the irrelevant fact she lived outside Nevada, have primary custody, the Court reversed and remanded. In early 2008, a proposal was put before the Court on the administrative docket ("ADKT") to fix the problem by re-establishing the mid-stream recusal policy and recusal lists for personal bias. After a year and a half, however, the Court simply amended SCR 48.1 to permit a second peremptory challenge when a case is reassigned for any reason other than the exercise of a peremptory challenge. The same situation applies to each other category of employee who works for any entity outside the scope of ERISA. A federal employee requires a Court Order Acceptable for Processing ("COAP"), approved by the Office of Personnel Management ("OPM"). A current or retired member of the Armed Forces needs certain specific language from other statutes, which can be stated in the in the decree, or a separate order, to be submitted to and approved by the Defense Finance and Accounting Service ("DFAS").8 65279;Second, by way of Concurrent Receipt (also called "Concurrent Disability Pay," or "CDP," but later re-titled "Concurrent Retirement and Disability Pay" or "CRDP"),164 all retirees with 20 years of service and VA disability ratings of 50% or higher, had their retired pay offsets phased out over a ten year period. In other words, the military retired pay previously waived for disability pay would be slowly restored, until the retirees were receiving both their full retired pay and the VA disability payments. Because the restored money is the fullydivisible longevity retired pay that was waived for V A benefits in the first place, it is "retired pay." In the hypothetical, the $10,000 minority time-share parent would have $785 obligation under the presumptive maximum, and the $5,000 parent would have a theoretical child support obligation of $664 in a Wright/Wesley situation, as the original brief set out. But offsetting should have been 18% of the first parent ($1,800) and 18% of the second parent ($900), yielding $900. Shelton v. Shelton, 119 Nev. ___, 78 P.3d 507 (Adv. Opn. No. 55, Oct. 29, 2003), cert. denied, 124 S. Ct. 1716 (2004), involved a stipulated decree calling for the former spouse to receive a certain sum of money out of the military retirement benefits each month. After divorce, the member applied for and received disability benefits, which requires a dollar-for-dollar waiver in retired pay. This had the effect of increasing the sums paid to him (he got the disability pay plus his portion of the reduced retired pay) while decreasing the sums paid to the former spouse. The Nevada Supreme Court followed a "contracts" approach that has been applied in Virginia and Louisiana, in deciding that a military retiree "cannot escape his contractual obligation by voluntarily choosing to forfeit his retirement pay," and that the former spouse was therefore entitled to continue receiving what she would have received but for the waiver of retirement for disability pay. The Court stated its intent to interpret the parties’ ambiguous and contradictory settlement so as to yield "a fair and reasonable result, as opposed to a harsh and unfair result," noting that the husband appeared to have ample other assets than his military retired pay with which to satisfy his payment obligation, and that even if he did not, federal law was no bar to enforcement of his agreement to use his disability payments to satisfy his obligation.

You can find The Marren and Page Case List Alba v Alba The Marren and Page Case List Trubenbach v Amstadter Hedlund Brief Amicus Discussion of Issues An Introduction to Pensions in Nevada Divorce Law Section IV The Marren and Page Case List Petition of Fuller Las Vegas child support expert The Marren and Page Case List Fick v Fick and Kantor v Kantor The Ten Year Rule Ogawa extending time to file under UCCJEA The Marren and Page Case List Guerin v Guerin Military Retirement Benefits The Conundrum of Disposable Retired Pay The Marren and Page Case List Nixon v Brown and Schmanski v Schmanski The Marren and Page Case List Alba v Alba available at lvfamilylawyer.com by clicking above.

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