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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 marriage1. Home state priority. The PKPA prioritizes "home state" jurisdiction by requiring that full faith and credit cannot be given to a child custody determination by a State that exercises initial jurisdiction as a "significant connection state" when there is a "home State." Initial custody determinations based on "significant connections" are not entitled to PKPA enforcement unless there is no home State. The UCCJA, however, specifically authorizes four independent bases of jurisdiction without prioritization. Under Most reviewing courts have either found or simply assumed that Mansell is applicable in litigation concerning post-divorce recharacterizations by retirees, and attempted to apply it to resolve the cases before them. Nevertheless, those appellate courts have almost uniformly reached the same ultimate destination as the court in Krempin, by means of a longer analysis. Generally, these are law-and-motion type hearings, but judges vary considerably in their handling of the matters. Some conduct spontaneous trials at the initial hearing, allowing presentation of evidence, witness testimony, etc. Some prefer to directly question the petitioner and respondent. Some insist on setting a second hearing, and giving both sides time to prepare and present the case like a normal trial, with abbreviated time schedules. Counsel’s familiarity with the preferences and peccadilloes of particular jurists is believed more important in this regard than any precedential history under Hague Convention practice. 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 Wyoming X Notably, the federal law provides that such a stay request does notconstitute the making of a general appearance and does not waive or relinquish anydefenses otherwise available, whether substantive or procedural.1 Obligation shall be determined in accordance with a shared costs table adopted by the agency of human services by rule. The shared costs table shall be developed in such a way as to minimize economic disputes over parent-child contact or visitation and shall reflect the additional costs of maintaining two households by increasing the total support obligation by 50 percent. The "dual receipt" prohibition in federal law was long a source of troubling inequities in military retirement benefits cases, and led to a large number of "dual comp" cases involving waiver of military retirement benefits. Those inequities were (apparently) solved when Congress repealed the "dual compensation" law, effective October I, 1999.280 Most ofthis section is therefore ofprimarily historical interest, or for purpose of analogies drawn to other areas still litigated (such as disability offsets). The Executive Council of the Family Law Section of the Nevada Bar followed and participated in the development of the new statute, but did not actually draft the language, which read: The Supreme Court reversed. The Court noted that there was no mention in the decree that the husband was required to maintain the life insurance policies. The Court held because of that the husband was entitled to cancel the life insurance policies and there should have been no consequences to him. At the time of their marriage, the parties each owned real property. During the marriage, the parties lived in the wife’s home. Mortgage payments were made on that property throughout the marriage. The primary source of these payments was apparently the proceeds from a craft business operated by the wife. The business had been purchased after the marriage with joint funds. The husband letter began constructing a residence on his separate property lot, performing most of the work himself. The funds came from money withdrawn from a community savings account and the sale of his prior separate property residence. The district court made a finding that both parties’ separate property had been improved with community assets. The court found the community interest in the lot on which the husband’s residence was built included the value of the husband’s labor, and the value of the building materials used. No community property interest was found in the wife’s residence. The district court also found that the craft business had been transmuted from community property to separate property by the division of the bank accounts. If this hypothetical member had a standard longevity military retirement (or any other standard defined benefit plan) the above wage history would make his average monthly salary during his last three years' service $4,014.21, and the military retirement formula" would make his retired pay $2,007.11. The Court will further enhance the practice of family law by clarifying its definition of "joint physical custody" and by: 1) defining the other custodial terms; 2) setting a minimum standard before "joint physical custody" can be considered; 3) requiring trial courts to take a child-centered view when exercising its discretion; and 4) clarifying that adoption of a given State’s definition of a custodial term does not mean that its accompanying case law is controlling. The FLS believes that the Rivero definition of joint physical custody is appropriate, but will be made more so by adoption of the clarifications outlined here. This third matter was directly reported to the State Bar by me, to avoid any possibility that this office could be implicated in the ongoing sleaze. That was about six months ago; near as I can tell, there was not even an investigation; certainly, we were never contacted for any information on the matter. 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. SPAN> In re Trujillo, 215 B.R. 200 (B.A.P. 9th Cir. Nev. 1997) aff’d as amended 166 F.3d 1218 (9th Cir. 1998) For bankruptcy purposes, interests in property are determined by state law. The Court was unimpressed with the mother’s "partial performance" argument (that she had not sought an increase when the father was making extreme amounts of money, so he should not be able to seek a decrease when his income dropped), finding estoppel "unavailable" since modifiability was a matter of public policy. Finally, the Court provided a new definition of the expression "the child’s best interest" in the context of child support, finding it to mean "to provide fair support, as defined in NRS 125B.070 and 125B.080, in keeping with both parents’ relative financial means." In a transaction between husband and wife whereby she conveyed to him her property, without consideration, and it is not shown that he was not the dominant, superior personality in influence and power, the burden of proof shifts, and the burden is placed upon the husband to prove the voluntary character of the wife’s act in parting with her property. 65279;Chambers ex rel. Cochran v. Sanderson, 107 Nev. 846, 822 P.2d 657 (1991) The child, through a guardian ad litem, filed a complaint to compel support. The district court ordered the father to execute an IRS release for his income tax returns of the previous three years, and awarded $500 per month temporary support. The father refused to sign the IRS release, and the child filed an application for an order to show cause. After a hearing on the order to show cause, the district court reversed itself. The district court concluded that child support award could only be adjusted beyond the $500 per month maximum provided in NRS 125B.070(2) only on a showing that the needs of a particular child are not met by that amount. The district court then concluded that because the father's financial condition was not relevant to the child's needs, there was no reason to allow discovery. The Court then made the $500 per month child support award permanent. 1. Home state priority. The PKPA prioritizes "home state" jurisdiction by requiring that full faith and credit cannot be given to a child custody determination by a State that exercises initial jurisdiction as a "significant connection state" when there is a "home State." Initial custody determinations based on "significant connections" are not entitled to PKPA enforcement unless there is no home State. The UCCJA, however, specifically authorizes four independent bases of jurisdiction without prioritization. Under 8) Paym ents in accordance with this subsection shall be made out of funds in the Department of Defense Military Retirement Fund established by section 1461 of this title or, in the case of the Coast Guard, out of funds appropriated to the Department of Transportation for payment of retired pay for the Coast Guard. Perhaps most unsettling, from a malpractice perspective, is the length of time such a claim can lay dormant. Several courts have adopted a "discovery rule" for attorney malpractice cases.1 In other words, divorces involving pensions, but in which no provision was made for survivorship interests, are malpractice land mines, lying dormant for perhaps many years until the right combination of events sets them off. 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. 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). For example, a 59-year-old airline pilot has an effective work life of just one year, as a matter of federal regulation. While such a person is not foreclosed from other work, even in the same industry (say, as a flight instructor), it would not be appropriate, no matter the length of the marriage, to create a permanent or long term alimony award based on a career asset which has been almost completely converted at the time of divorce from potential income to realized income. The July, 1995, Chair’s Column in the Nevada Family Law Report pretty concisely stated the position of the Section leadership on the process and result of enacting NRS 125.155: 5. It must not "require payment of an allowance or benefit to an alternate payee before the retirement of a member or the distribution to or withdrawal of contributions by a member." bsp; 3. Not automatic, or easy: "Each case should be assessed on its own merits with consideration given to the purpose, duration and stability of the relationship and the expectations of the parties." For example, the military has its own set of mortality tables, set out by officers and enlisted members, and by disability and non-disability retirements.1 At least for non-disability retirements, there is a significant reduction in death rates for military members, boosting present values. Adopting the Actuary’s valuations would require accepting its presumption of annual COLA increases, inflation assumptions, and its allowance of high likelihood that the government will make the payments, which leads to assumed inflation of only 3%, and an assumed present value discount rate of 6.25%, with a resulting "real interest rate" of 3.25%. These assumptions, in turn, greatly increase the present value from that which would be reached using certain commercial assumptions. 6) Notwithstanding any other provision of law, a member or former member of the armed forces referred to in paragraph (2)(A) shall have no ownership interest in, or claim against, any amount payable under this section to a spouse or form er spouse of the m ember or form er mem ber. It may not be that simple, however, as the member can elect between CRDP and CRSC annually, and which would actually provide more money in a given year can vary throughout the phase-in of CRDP. From the spouse’s point of view, the money may just "stop" one or The spate of State statutory enactments appear rooted in the patriotic fervor attendant to the U.S. wars in Afghanistan and Iraq, and the huge number of people affected by the rounds of deployments and activation of Reserve and Guard units. But such enactments take the focus off of the child involved in such cases, in apparent contradiction of the judicial policy that in making custody determinations, the court’s sole consideration is the best interest of the child,9 which provides "the polestar for judicial decision."10 You can find The Concept of Divisible Divorce The Marren and Page Case List Robinson v Robinson Wilford v Wilford and For Rivero v Rivero Opinion Section V The Marren and Page Case List Whise v Whise Fleming v Fleming Presson v Pre Concepts in the UCCJEA Feral paralegals part 2 Rivero v Rivero IV B Subsection One Introduction to Nevada alimony and spousal support law The Marren and Page Case List Davis v Davis Primm v Lopes and Mason v Mason Divison of Military Retirement Benefits In Divorce Section II Subsection C Las Vegas family law specialist Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Family Court The Marren and Page Case List Ormachea v Ormachea Murphy v Murphy and Kern Constitutional Concerns Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Partition Actions Divison of Military Retirement Benefits In Divorce Section II Subsection B Why the Nevada Welfare Division is Calculating Interest and Penalties Incor The Marren and Page Case List Ellett v Ellett Gojack v Second Judicial Dist In Search of a Coherent Theoretical Model for Alimony The Concept of Divisible Divorce available at lvfamilylawyer.com by clicking above. Site Map Rivero State Bar Amicus Brief Part Two B Time to distinguish enterprise and personal goodwill Divison of Military Retirement Benefits In Divorce Section X Subsection A Rivero v Rivero Opinion II B Nevada OPM expert The Marren and Page Case List Schwartz v Schwartz Jones v Jones Trent v Tre The Marren and Page Case List In the Matter of Parental Rights as to T M C |