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The Marren and Page Case List Guardia v Guardia Hamlett v Reynolds
DefaultThe parties were married for 14 years. At the time of their marriage, the parties were attending college. In 1983, the wife obtained a degree in design and the husband obtained a degree in business and finance. After graduating, the wife worked while the husband obtained his Masters degree in business administration. The wife became a full-time homemaker in 1984 after the birth of their first child. The husbands income was $5,177 per month and the wifes income was $1,600 per month. The district court ordered the husbandto pay the wife $500 per month for five years in rehabilitative spousal support. The Supreme Court reversed. The Court noted that regarding spousal support, the legislature had failed to set forth an objective standard for determining the appropriate amount and cited to When it comes to experience in family law, Las Vegas lawyer Marshall Willick can´t be beat. Las Vegas lawyer Marshall Willick has earned a reputation as a diligent trial and appellate court lawyer. We can handle contested divorce, mediation, jurisdiction, penalties and pension problems. The parents were subject to a joint physical custody order. The referee found that the best interests of the children would be served by vesting the mother with primary custody. The referee agreed with the testimony and recommendations of the CASA; the joint custody order was working to the detriment of the children, and there was evidence that the son was being mistreated while at the fathers home. The district court adopted the referees findings. The father appealed, claiming the referee applied the wrong legal standard when considering a modification of joint custody. As seen in the "early out" cases discussed above, however, and (generally) in the disability cases discussed below, precedent supports a couple of general propositions. First, that the military member may usually choose any legitimate retirement option available under law. Second, that it makes no difference how or why the member reduces the sum of retirement benefits otherwise payable to a former spouse - the fact of doing so mandates that compensation be provided to the former spouse.1 This can play out in a number of ways, depending on the timing of events. In altogether too many decisions - in Nevada and elsewhere - courts appear to simply decide what is "fair," and then set about constructing rationalizations in support of the conclusion already reached. This may be an artifact of the lack of a coherent theoretical model for either the original award of alimony or its modification once awarded. Its a job I know pretty well; I had the job of a Central Staff Attorney as my first out of law school. But the game has changed, somewhat, since the early 1980s - the Central Staff is much larger than it used to be, and part of the Courts adaptation to its increased size, huge case load, and lack of an intermediate appellate court has been to rely ever more heavily on Central Staff for substantive expertise in discrete practice areas. r some years, we have drafted QDROs and other retirement benefit orders for other attorneys around the country, and we formally went into the business of doing so about a year ago. While this has benefited people with current retirement division cases, many people already have orders in place that were either written incorrectly or are mathematically defective. At the time of the marriage in 1979, the residence was owned by the husband. In 1984, the husband quitclaimed his interest in favor of himself and his wife as joint tenants in 1984, and the deed was recorded. The district court awarded the residence to the husband as his sole and separate property. The Court noted a transfer of title from husband to wife created a presumption of gift citing to Todkill v. Todkill, 88 Nev. 231, 237, 495 P.2d 629, 632 (1972). The Court held that this presumption could be rebutted only by clear and convincing evidence. The Court noted that it was well established that the existence of a valid deed in the form of joint tenancy raises a presumption that the parties intend to own the property as joint tenants, which may be rebutted only by clear and convincing evidence citing to Neumann v. McMillan, 97 Nev. 340, 629 P.2d 1214 (1981) and Peters v. Peters, 92 Nev. 687, 557 P.2d 713 (1976). The opinion of either spouse is of no weight. The Court held the husband had the burden of proving that the deed did not create a joint tenancy at the time it was prepared, signed and recorded. The only evidence is his testimony that he did not intend the deed to have any effect until the time of his death. The husbands testimony was nothing more than his opinion, which was insufficient to rebut the presumption of joint tenancy created by the deed. The Court held that district court erred in finding that the presumption had thus been rebutted by clear and convincing evidence. When the parties divorce while the member is still on active duty, however, they do so prior to the time of making an election regarding the SBP. If the matter remains unaddressed at divorce - by the machinations of the member-spouse, or innocently,8 the now-former spouse does not have the waiver right of a current spouse. It is therefore possible for the member to cancel the SBP entirely, or to name some third party (usually, a later-acquired spouse) as beneficiary. NRS 125.155(2)(b) actually does something - it explicitly permits a court to order private life insurance to make up for the lack of any "pre-retirement survivor annuity" in the PERS system.2 It must clearly specify the amount, percentage, or manner of determining the amount of the allowance or benefit of the member or retired employee that must be paid by the system to each alternate payee. The Court noted that the only evidence which supported the daughters contention that the property was her mothers 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. Several State courts have held that the interest of a former spouse in retired pay is realized at vesting,6 theoretically entitling the spouse to collect a portion of what the member could get at that time irrespective of whether the member actually retires.7 As phrased by the California court in Luciano: "The employee spouse cannot by election defeat the nonemployee spouses interest in the community property by relying on a condition within the employee spouses control."1 On June 26, 1981, the United States Supreme Court focused the debate by issuing its opinion in McCarty v. McCarty The husband in a California divorce had requested that his military ?retirement benefits be "confirmed" as his separate property. In 1977, the California trial court refused, finding that the military retirement benefits were quasi-community property,' and therefore ordered the normal "time rule'" division of the benefits. 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 Supreme Court held that it was error for the district court not to provide any basis for its calculation of child support and error not to set forth findings of fact to justify a deviation from the statutory amount. Any deviation must be based upon NRS 125B.080. After weighing all those factors, which may be brought before the Court by way of Ex Parte Petition, the court is empowered to grant an immediate warrant to take physical custody of the child as long as the Court determines that the allegations pose a credible risk of imminent likely wrongful removal of the child.1 The parties divorced in California in 1986. The mother was given primary physical custody of their three children and the father was ordered to pay child support. The father later moved to Nevada while mother remained in California. The father fell into arrears in his child support obligation and mother instituted a URESA action in the Second Judicial District Court to recover arrears. While this was occurring, the father had his child support order reduced in California and the parties stipulated his arrears were $6,050. the father paid off the arrears in two years. In exchange for release of mothers lien against him, husband agreed to stipulate to a Washoe County District Court that he would continue to pay child support of $375 per month. Three months later the Washoe County District Attorneys Office registered mothers child support order in Nevada per NRS 130.320 and immediately thereafter requested the court to increase the child support order. The URESA master recommended the fathers child support be increased pursuant to the Nevada Child Support Formula (29%) which would have increased the fathers child support obligation from $375 per month to $900 per month. The parties were married for 14 years. At the time of their marriage, the parties were attending college. In 1983, the wife obtained a degree in design and the husband obtained a degree in business and finance. After graduating, the wife worked while the husband obtained his Masters degree in business administration. The wife became a full-time homemaker in 1984 after the birth of their first child. The husbands income was $5,177 per month and the wifes income was $1,600 per month. The district court ordered the husbandto pay the wife $500 per month for five years in rehabilitative spousal support. The Supreme Court reversed. The Court noted that regarding spousal support, the legislature had failed to set forth an objective standard for determining the appropriate amount and cited to The Supreme Court affirmed. The Court again noted that all property acquired after marriage is presumed to be community property, and the burden of proof is upon the person claiming it to be separate property citing to Lake v. Bender, 7 P. 74, 18 Nev. 402 (1884). Ultimately, the matter was remanded to state court. Ironically, that court ruled that the previously-ordered flow of payments from the member to the spouse, put into place prior to the appellate Mansell decision, was res judicata and could not be terminated.3 In other words, the United States Supreme Court opinion had no effect on the order to divide the entirety of retirement and disability payments in the final, un-appealed divorce decree in the Mansell case itself. 4) If the parenting time is equal but the parents adjusted gross incomes are not equal, the parent having the greater adjusted gross income shall be Obligated for the amount of basic child support needed to equalize the basic child support to each parent, calculated as follows: Using the following paragraph will protect the former spouse interest in military retired pay in the event that the employee waives the military retired pay to allow crediting the military service under CSRS or FERS. The paragraph should only be used if the former spouse is awarded a portion of the military retired pay. "If [Employee] waives military retired pay to credit military service under the Civil Service Retirement System, [insert language for computing the former spouses share from 200 series of this appendix.]. The United States Office of Personnel Management is directed to pay [former spouse]s share directly to [former spouse]. This is a most dangerous situation for a former spouse. As noted in the section above, spouses lose DIC eligibility upon divorce. And as set out below, there is normally no SBP coverage until after retirement. In other words, the former spouse risks total divestment if the member dies during the period between divorce and the memberfs actual retirement. Mosley erroneously indicates that the policy of the State of Nevada "encourages both parents to share equally parental responsibilities after separation."6 That statement does not comport with the actual policy of our State, as codified in NRS 125.460, which encourages "parents to share the rights and responsibilities of child rearing." (Emphasis added.) It would be a huge stretch to interpret an apparent misstatement in a footnote to mean that the words "shared" and "equal" are synonymous. They are not. You can find The Marren and Page Case List Guardia v Guardia Hamlett v Reynolds Public Employees Retirement System PERS Benefits Less is More and More is Less More or Less Family Court A Trip Down Memory Lane An Introduction to Pensions in Nevada Divorce Law Section I Subsection A The Marren and Page Case List Engebretson v Engebretson Hybarger v Hybarger Exhibits on Rivero Exhibit Three Section Four The Marren and Page Case List Sly v Sly and York v York Rivero State Bar Amicus Brief Love me Love My Dog Family Law and Contingency Fees Time to Reconsider The Marren and Page Case List Mullikin v Jones Neumann v McMillan Waldman v Division of Just Community Property or Other Property Considered Penalty Calculations Custody Visitation and Temporary Support Issues Analysis of Hypothetical Fact Pattern The Marren and Page Case List Guardia v Guardia Hamlett v Reynolds available at lvfamilylawyer.com by clicking above. Site Map Divison of Military Retirement Benefits In Divorce Section III Subsection A Divison of Military Retirement Benefits In Divorce Section IV Subsection D Peremptory challenges and rule changes a half step The Marren and Page Khaldy v Khaldy The Marren and Page Case List Hermanson v Hermanson Welfares Flawed Analogy Death of Member After Retirement and After Divorce Reciprocal Links: The Marren and Page Case List Guardia v Guardia Hamlett v Reynolds The Marren and Page Case List Guardia v Guardia Hamlett v Reynolds The Marren and Page Case List Guardia v Guardia Hamlett v Reynolds The Marren and Page Case List Guardia v Guardia Hamlett v Reynolds |