The Marren and Page Case List Barrett v Franke In re Wilsons Estate Peters

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The Supreme Court held that the excess of the amount paid in social security disability over the amount of child support owed may be credited toward child support arrears. The Court imposed certain limitations. First, the time period with respect to applying the credit is when the parent under the obligation became disabled, and then only if "the parent under the support obligation [makes] a good faith effort to apply for benefits for the child as soon as possible after the disabling injury." Then, the arrearage accruing during the time gap waiting for benefits to begin is subtracted from the benefits ultimately paid by social security. There is to be no credit for arrears that accrued before the disability began or after it ended. Because there was no finding below as to the date of the father’s disability, the matter was remanded. The Supreme Court held that the excess of the amount paid in social security disability over the amount of child support owed may be credited toward child support arrears. The Court imposed certain limitations. First, the time period with respect to applying the credit is when the parent under the obligation became disabled, and then only if "the parent under the support obligation [makes] a good faith effort to apply for benefits for the child as soon as possible after the disabling injury." Then, the arrearage accruing during the time gap waiting for benefits to begin is subtracted from the benefits ultimately paid by social security. There is to be no credit for arrears that accrued before the disability began or after it ended. Because there was no finding below as to the date of the father’s disability, the matter was remanded. As a matter of law, it is possible to value the spousal share in at least two ways. The majority of States applying the time rule formula seem to view the "community" years of effort qualitatively rather than quantitatively, reasoning that the early and later years of total service are equally necessary to the retirement benefits ultimately received.1 Therefore, we take this opportunity to clarify that the district court only has authority to modify a child support order upon finding that there has been a change in circumstances since the entry of the order and the modification is in the best interest of the child. In so doing, we look to NRS Chapter 125B and our caselaw. The Supreme Court reversed the custody change. The Court also discussed the oral permission for the move. The Court concluded that the district court gave undue weight in its oral and written decision to the father’s noncompliance with the move statute. The Court noted that district court properly considered the father’s noncompliance with the move statute as a factor in its decision, however, the father’s noncompliance was not determinative of the issues. The Court found this to be particularly true since the father acted in good faith in initially securing the mother’s verbal consent. The Court was concerned that the district court was more focused on punishing the father for his conduct instead of adequately considering the best interests of the children and whether the mother had satisfied the secon Murphy prong. The parties were married June 1962. In 1968, the husband began working for the New York City Department of Corrections. In 1974, the husband underwent an operation to remove a cyst from his knee. During the operation, the husband was injured. A medical board determined that the husband was disabled and he was required to retire in 1979. The husband was eligible for disability retirement benefits. The parties chose an option which paid benefits for life. The parties then moved to Las Vegas. In 1987, the wife filed for divorce. The husband argued that the disability benefits were his separate property under New York law and that New York law was in accord with community property laws. In December 1987, the district court filed its decision regarding the character of the disability retirement benefits. The district court reasoned that the payments appeared to be substantially related to the husband’s employment. The district court noted that a portion of the payment could be viewed as compensation for lost earnings, but could not determine the amount. The district court relied on Simmons v. Simmons, 568 S.W.2d 169 (TexasCiv.App. 1978) and Guy v. Guy, 560 P.2d 876 (Idaho 1977). PAN style="FONT-FAMILY: Times New Roman; FONT-SIZE: 12pt"> Obviously, when one party to a marriage contributes less to the community property than the other, this cannot, especially in an equal division state, entitle the other party to a retrospective accounting of expenditures made during the marriage or entitlement to more than an equal share of the community property. Almost all marriages involve some disproportion in contribution or consumption of community property. Such retrospective considerations are not and should not be relevant to community property allocation and do not present ´compelling reasons’ for an unequal disposition; whereas, hiding or wasting of community assets or misappropriating community assets for personal gain may indeed provide compelling reasons for unequal disposition of community property. But the Welfare view of how the statute should be construed has already been rejected by the Nevada Legislature within the past two years, would be counterproductive and illogical in application, and would be poor public policy if implemented. It simply makes no sense to read the words "per annum" and "remains unpaid" out of a statute intended to assess penalties at 10% per annum on the sum of arrears that remains outstanding. Calculation of both interest and penalties in accordance with the length of time installments of support remain outstanding is logically and legally correct, and serves the purpose for which the statutory provisions were implemented. Instead, it would seem to make more sense to inquire into the economics of the question, and in the absence of some compelling reason to do otherwise, provide the insurable interest security that is the SBP to the spouse with the larger insurable interest to be secured. This serves the interest of securing to each spouse to the original divorce their respective rights to the benefit stream divided upon divorce, unaffected by decisions the other makes, whether to marry, divorce, live, or die.12 I told the judge that I would be very surprised to hear it, as such a holding would appear to overrule many decades of consistent holdings on the point. He invited me to research the matter and, if I disagreed, to draft a memo on the point for the family court bench and Bar. This Legal Note is excerpted from that memo. If you were a civil servant and you need a Las Vegas CSRS law expert to deal with your pension benefits, call on the offices of Marshall Willick for the best help from a Las Vegas CSRS law expert. We can handle all civil service issues, survivor benefits and penalties. A very lengthy opinion. The parties met in 1930. Soon after meeting, the wife became pregnant, and the parties began living together in October 1930. Between 1930 and 1943, there were seven children born to the parties. The parties continued to live together July 1947, when the wife left their home. If the calculations were done in accordance with the position of the critics of the time rule set out above, in a strictly quantitative way, the results would be quite different. Wife one’s share of the retirement would be calculated in accordance with rank and grade at the time of her divorce from the employee; in this case, she would get a pension share based the "high three" years at the ten year point, which was $2,464.38. The formula postulated above would produce a hypothetical retirement of $616.10. Wife one would receive half of that sum - $308.05, but not until after the actual retirement, ten years later. It would be an error to directly compare post-Mansell cases with those concerning divorce decrees issued prior to Mansell. Courts that have reviewed decrees issued after 1989 have often held the language used in the decree to a higher standard of clarity. This is reasonable, since after Mansell it would be at least theoretically possible for a divorce court to anticipate the question, and issue an order specifically intending to permit or forbid a post-divorce recharacterization of retirement benefits into disability benefits. The Supreme Court rejected the father's contention, of an equitable setoff noting that "[i]f by this [the father] means that he is entitled to deduct from his support payments, the amount of his expenditures while he is exercising his visitation rights, we cannot agree." Id. at 661. The Court also noted that there was no credible evidence of consent such as evidence showing that the other parent consented to a change in custody, an express agreement, or a compulsion of circumstances such as abandonment or mental or physical illness which could possibly excuse the father's conduct. Id. at 661. The Court held that, " ... absent credible evidence of an agreement between the parties to modify the terms of a support agreement, or compelling circumstances which require a change in custody, before judicial approval is sought, in the interest of the child, a parent making expenditures for a child of whom he does not have custody is not entitled to a setoff of those amounts against his support obligations." Id. at 661. In 1965, the father and mother had two children together in New Jersey. The children were left with the father and his wife. Eventually, the mother met and married a man in Nevada. Then, the mother felt able to care for her children. She and her husband went to New Jersey, recovered the children and returned with them to Nevada. The father and his wife filed a complaint in a New Jersey court seeking custody. Based upon ex parte affidavits and without any hearing or notice an "Order to Show Cause" required the mother and her husband to deliver the children to the father in New Jersey. Copies of the "Order to Show Cause" were delivered to the mother and her husband, together with copies of the complaint. Then a "Petition for Writ of Habeas Corpus" was filed in Nevada alleging that the father was entitled to custody because of the "Order to Show Cause." When the parties married, they each had substantial separate property interests and had children from prior marriages. The parties were able to settle the character and value of much of the property prior to the trial. The remaining property was divided by the district court. The district court determined that, since the value of the business resulted from a combination of the husband’s initial capital contribution of separate property and his efforts during the marriage, the separate and community property interests were determinable under the Pereira method. The husband also withdrew monies from a separate property capital account to purchase a ranch. The Court did not reduce the amount of the husband’s remaining separate property interest in the business by the amount withdrawn as separate In a military case, an order dividing retired pay as the property of the member and the former spouse will only be honored by the military if the issuing court exercised personal jurisdiction over the member by reason of: (I) residence in the territorial jurisdiction of the court (other than by military assignment); (2) domicile in the territorial jurisdiction of the court; or (3) consent to the jurisdiction of the court." A divorce decree was granted, and the wife filed a motion for a new trial; that motion was denied, and the new ex-husband died the next day. The Supreme Court held that upon the entry of such a decree the former separate property of the husband and wife is his or her individual property, and the property formerly held by the community is held by the parties as tenants in common. The Court further held that "[i]n the absence of any reference thereto in the decree, the parties to the suit became tenants in common of the community property, and the death of the husband after the entry of judgment did not impair the wife’s rights to the property, but this right must be enforced in an independent action, in which all who may have any interest therein should be made parties. "Id. at 55-56. [citations omitted.] SUP> As a matter of course, such an injunction is usually filed with each Complaint for Divorce and served upon the opposing party at the time of service of the Complaint. a) Where a party has custody or visitation of a child or children for more than 90 days of the year, as such days are defined in subdivision G 3 (c), a shared custody child support amount based on the ratio in which the parents share the custody and visitation of any child or children shall be calculated in accordance with this subdivision. The presumptive support to be paid shall be the shared custody support amount, unless a party affirmatively shows that the sole custody support amount calculated as provided in subdivision G 1 is less than the shared custody support amount. If so, the lesser amount shall be the support to be paid. For the purposes of this subsection, the following shall apply: Since 1948, reservists have had a retirement system of their own. The big difference for reservists is that both service and age elements must be satisfied; the reservist must accumulate 20 years of creditable service, and must reach the age of 60. The parties were married November 1959 and divorced within approximately one year. The district court declined to award alimony. The wife appealed claiming the district court abused its discretion by not awarding any alimony because the only discretion the court had was to set the amount of alimony and was compelled by law to make an award. The Supreme Court affirmed holding that a district court is not compelled by law to make some award of alimony. The allowance of permanent alimony rested in the sound discretion of the court to be exercised in the light of all surrounding circumstances. In short, there does not appear to be a valid basis for asserting that Nevada was the home state of the children on the date that proceedings were commenced, and the jurisdiction of the court to make an initial award of child custody would have to rest on some other ground. The meaning and effect of the savings clause is discussed above in the introduction to the USFSPA, which discussion is not repeated here. Similarly, there does not seem to be much to say about disability benefits already received and used for the increase of account balances or the acquisition of assets, all of which apparently have no kind of special or protected status.7 All of these withdrawals presume that the TSP Board had not previously been served with a valid court order awarding a portion of a TSP account to a current or former spouse or one that requires payment for enforcement of child support or alimony obligations. If such an order was served on the TSP Board, it will comply with the court order before permitting purchase of an annuity or other withdrawal. programs were passed in tandem. First, CRSC was expanded to include all combat-related disabilities or operations-related disabilities,1 from 10% to 100% ratings, effective January 1, 2004, and extended to Guard and Reserve members. CRSC payments are explicitly defined as not being "retired pay."2 4. The retirement system is specifically directed to pay the benefits as determined herein directly to the Alternate Payee at the first date such payments are allowed by statute following the Memberfs first eligibility for retirement without any early retirement penalty; the retirement system is not required by this order to provide an allowance or benefit not otherwise provided under the statutes governing PERS. The fifth scenario presumes that the court wants to "equally divide" the premium, which would be accomplished by decreasing the spousal share to 23.2620%.6 This requires decreasing the spousal share somewhat from the default, and increasing the member’s share somewhat, to cause a sufficient dollar adjustment so that each pays exactly the same amount toward the premium cost that the military will take "off the top." There is some equitable logic in this idea, although it still leaves the former spouse over-secured, in that the possible survivorship that each party might receive is maximized, and they equally share both the cost of the survivorship benefit that the member has on the spouse’s life (i.e., none), and the cost of the survivorship benefit that the spouse has on the member (the only survivorship benefit that has a cost associated with it). The reason for not only permitting, but encouraging the use of such indemnification clauses was explained well by the Minnesota Court of Appeals in Gatfield4: it basically ensures that the divorce courts are free to enforce the parties’ declared intent as matter of contract law.5 Any court reviewing a decree seeking intent to indemnify must be careful to not give retroactive effect to either the USFSPA, or any case interpreting it (i.e., Mansell) so as to defeat an existing flow of payments to a former spouse. As stated by various courts over the years, it would "thwart the very title of the Act, the ´Uniform Services Former Spouses’ Protection Act,’ to construe the law as preventing a spouse from actually receiving a court ordered portion of military retirement benefits."6 Particularly detailed was the discussion in Torres v. Torres,1 in which the Hawaii Supreme Court explained at great length how, at least in the Ninth Circuit, there is no such thing as "vesting" of survivorship benefits at the moment of retirement, in any person, and why the benefits accorded (or waived) in an earlier divorce decree should be distributed in accordance with such a decree. That court detailed why nothing in Hopkins, or any other prior case, could validly be interpreted as leading to any other result.2 Range of potential downward deviation is $1,328 (if this Court allows support to flow "uphill" from a majority time-share parent to a minority time-share parent) or $664 (if this Court does not allow support to flow "uphill"). SPAN> Vaile v. Eighth Judicial Dist. Court,118 Nev. 262, 44 P.3d 506 (2002); cert. denied sub.nom. Vaile v Porsboll, 538 U.S. 906, 123 S. Ct. 1483, 155 L. Ed. 2d 225 (2003) The father fraudulently obtained a custody order and used the order to kidnap the children from Norway. The district court ratified the taking of the children. In a lengthy opinion, the Supreme Court revered. The Court held that because the evidence presented by the father provided the district court, at the time it entered the decree, the decree was voidable. The Court further concluded that because the mother, without duress, had signed an answer to the complaint which admitted to the father’s residency, it would not disturb the district court’s determination the mother was estopped from attacking the decree’s validity. The Court then held the custody and visitation portion of the decree was void. However, and (incorrectly) the Court concluded that if it declared decree void it would not be able to require the district court to make a Hague determination and order the children sent back to Norway. The Court also held a district court may not assume jurisdiction over the matter of child custody and visitation based upon a "contract theory." Because a voidable decree had not been set aside, the court had colorable jurisdiction over the parties and the subject of their marital status. It did not extend to the children. The Court reaffirmed its prior holding that a provision adjudicating custody and visitation in the absence of subject matter jurisdiction is void. Some critics complain that such a formula gives the non-employee former spouse an interest in the employee spouse¡¯s post-divorce earnings, at least where the divorce occurs while the employee is still working. They argue that the spousal share should be frozen at the earnings level at divorce; a minority of States, including Texas, have adopted this approach, sometimes in cases that do not appear to have contemplated the actual mathematical impact of the decision reached.1 This minority approach undervalues the spousal interest by giving no compensation for deferred receipt, and also contains a logic problem, at least in a community property analysis, of treating similarly situated persons differently.

You can find The Marren and Page Case List Barrett v Franke In re Wilsons Estate Peters Rivero v Rivero Opinion III A Division of Military Retirement Benefits in Divorce Section II Subsection A The Marren and Page Case List Harris v Harris Libro v Walls and Love v Love Substantive Issues The Childs Habitual Residence at the Time of Removal or Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar What Almost Happend to Child Support in Nevada and Why We Still Have to Fix Rivero v Rivero Subsection 1 Divison of Military Retirement Benefits In Divorce Section V Subsection Time to distinguish enterprise and personal goodwill Kennedy v Plan Administrator for Dupont Savings and Investment Plan New Uniform Child Abduction Prevention Act UCAPA Either Federal or State Courts May Make the Hague Determination Child Support exceeding the statutory presumed maximum Divison of Military Retirement Benefits In Divorce Section V Subsection G Termination of Parental Rights Constitutional Concerns The Marren and Page Case List Whise v Whise Fleming v Fleming Presson v Pre Public Employees Retirement System PERS Benefits Section III Subsection C P Nevada ERISA lawyer The Marren and Page Case List Barrett v Franke In re Wilsons Estate Peters available at lvfamilylawyer.com by clicking above.

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