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The Marren and Page Case List Murphy v Murphy Harris v Harris Peavey v Peav
The 2001 amendment to UIFSA 611 changed "remains the residence" to "is the residence" to make it clear the original intent of the drafters that when a party returns to the original issuing state and not other state has modified the order, then the original issuing states continuing, exclusive jurisdiction is restored.8 The following paragraph is intended to permanently transfer an Alternate Payees benefit under Wolff v. Wolff. However, you can bargain with opposing counsel for reversion of the benefit back to the member. Notably, the rules governing support and custody operate independently of one another. The courts of this State might be called upon to enforce a child support obligation against someone found here, or filing here, while having no jurisdiction over custody matters.2 The obligor parent can always be sued for child support where that parent lives,3 because child support is set by the court with personal jurisdiction over the paying parent. Most states approving in-kind divisions have adopted the "time rule," discussed above. Precise language is very important in an in-kind division case. It is not enough to merely recite that the former spouse should receive, e.g., "forty percent of the retired pay." Especially for the former spouse (for whom a mistake is more likely to result in partial or total loss of benefits), it is necessary to consider all of the things that can go wrong, at the time of divorce or later. The military member had appealed in Payne, claiming that the SBP should be funded solely by the former spouse because it is "a court-created asset for her benefit alone." The appellate court rejected that argument, holding instead that the SBP is "an equitable mechanism selected by the trial court to preserve an existing asset - the wifes interest in the military pension."3 Several other courts have reached the same conclusion, but most of the decisions so holding did not fully discuss the math involved in the text of their decisions, or explain the policy choices for who should bear what expense.4 The Supreme Court reversed. The Court discussed the homestead statute and that on its face, it seemed to indicate that the exemption was always enforceable against a party seeking to execute on the homestead, unless the party can demonstrate that he or she came within one of the statutory exceptions. By applying the statute in a strictly technical fashion, the Court noted it appeared that the wifes judgment did not come within one of the listed exceptions. The Court held that to interpret the statute in a highly technical fashion would lead to an absurd result and would contravene the legislatures intent in enacting this statute. The Court noted that Homestead laws were designed for the purpose of protecting families and making families secure in their homes from creditors they were unable to pay. Because of that when an ex-wife or child attempted to enforce court-ordered support payments, the rationale behind upholding the homestead exemption could no longer be said to apply, since the policy of protecting the family would no longer be served by such an application. The Court did not believe that a former family member attempting to enforce a support judgment could be considered to be a creditor of the kind against which the legislature sought to protect the homesteader, and that it would be unfair to permit the homestead to be used as a shield under those circumstances to insulate a father from being forced to pay the support that was owed to his own children. The Court further noted that the father owed his first family a duty of support long before the second marriage arose, and he entered into the second marriage well aware of that duty. The Court held that to permit the application of the homestead laws to protect the husbands second family, at the expense of depriving his first family of the support to which they are entitled, was not a result intended by the Nevada Legislature in enacting the homestead laws. Id. at 609. The 2001 amendment to UIFSA 611 changed "remains the residence" to "is the residence" to make it clear the original intent of the drafters that when a party returns to the original issuing state and not other state has modified the order, then the original issuing states continuing, exclusive jurisdiction is restored.8 The Family Law Section requests that this court define all types of legal and physical custody to create a continuum in which it is clear where one type of custody ends and another begins. It argues that such definitions will provide much needed clarity and certainty in child custody law. Our discussion of child custody involves two distinct components of custody: legal custody and physical custody. The term "custody" is often used as a single legal concept, creating ambiguity. NRS 125.460, NRS 125.490 (using the term "joint custody"). To emphasize the distinctions between these two types of custody and to provide clarity, we separately define legal custody, including joint and sole legal custody, and then we define physical custody, including joint physical and primary physical custody. The first "break in the dam" was the modest "combat-related special compensation" or "CRSC," pay put in the 2003 Defense Authorization Act. It granted an additional payment While some courts have expressed the opinion that an outright award of spousal support in the sum of military retirement benefits lost by reason of a disability election constitutes a violation of Mansell,4 other courts have had no problem with the direct substitution of alimony for the intended property award. In Austin (Scott) v. Austin,5 the court instituted an award of alimony, that had been previously reserved until remarriage, in lieu of the pension share lost because of the members transfer to VA disability status. The court gave its approval to alimony continuing after the spouses remarriage, where the alimony award is intended to compensate for distribution of a pension earned during marriage, citing Arnholt v. Arnholt.6 The parties held a deed to property in joint tenancy. The district court found that the lot was community property and ordered it sold at fair market value with the proceeds divided equally between the parties. The husband never objected to the characterization of the lot as being community property. In 1993, the Nevada Legislature added an entirely different tracing methodology, applicable to any "contribution of separate property to the acquisition or improvement of property held in joint tenancy" as quoted above, in the amendment to NRS 125.150(2). The statute allows the court to provide reimbursement to a party for his or her separate property contribution to property which is held by the parties as joint tenants, up to the value of the sums contributed. In other words, the member essentially has an automatic, cost-free, survivorship benefit built into the law that automatically restores to him the full amount of the spouses share of the lifetime benefit if she should die before him. No matter what any court might order, if the former spouse dies first, the member not only continues to get his share of the benefits, but he will also get her share, for as long as he lives. The Supreme Court affirmed. The Court found that pursuant to NRS 125.140(2) there was a proper exercise of the district courts discretionary powers in denying the the fathers motion to modify citing to Goodman v. Goodman, 68 Nev. 484, 236 P.2d 305 (1951); Schmutzer v. Schmutzer, 76 Nev. 123, 350 P.2d 142 (1960); Adler v. Adler, 80 Nev. 364, 394 P.2d 350 (1964); Edwards v. Edwards, 82 Nev. 392, 419 P.2d 637 (1966). Id. at 428-29. The Court also quoted MacDonald v. Superior Court in and for San Mateo County, 104 P.2d 1071 (Cal.App. 1940) wherein that court stated "[n]o party to an action can with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to the courts legal orders and processes." SUP> If the facts indicated an agreement, express or implied, to equally co-own the property, that partnership or joint venture could be given effect under the doctrine expressed in Michoff.3 That decision stated that the remedies in Marvin v. Marvin4 (i.e., "palimony," or the setting aside of property acquired by one unmarried cohabitant to the other) were expressly available to unmarried co-habitants.5 The Arizona Court of Appeals was more direct in In re Gaddis,7 when it held that divorce courts were only required to find reductions in military pay benefitting the member to bar compensation to the spouse if those reductions in retired pay existed when the award to the former spouse was made. The court saw the proscription of Mansell - that the USFSPA "does not grant state courts the power to treat as property divisible upon divorce military retired pay that has been waived to receive veterans disability payments" - as a call to essentially take a snapshot when the award to the spouse is made. If sums of disposable retired pay had been waived up to that point, they were not divisible. Where a member sought a post-divorce reduction in retired pay, however, his efforts at re-characterization were seen as attempting a "de facto modification" of a final property award, which State law did not permit.8 B> In Wright v. Osburn, 114 Nev. 1367, 970 P.2d 1071 (1998), the Nevada Supreme Court decried the Legislature's failure to set forth an "objective standard' for determining the appropriate amount of alimony: stating that "absent such a standard, there appears to be a disparity in the awards for spousal support on similar facts even greater than for child support.' The Legislature has ignored the invitation to provide such a standard for a decade, and the Court itself has done little to solve the problems with consistency and predictability that it noted. In any event, for the short term, there remains the question of arrearages, consisting of sums of retired pay that retirees waived and personally collected in the form of disability pay to the exclusion of the former spouse. As to those cases, all of the above factors remain relevant. The legislation did not contain any authority for DFAS to issue retroactive payments. B> IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Court shall retain jurisdiction to enter such further orders as are necessary to enforce the award to [FORMER SPOUSE] of the PERS retirement benefits awarded herein, in accordance with the provisions of Nevada case and statutory law, including the recharacterization thereof as a division of Civil Service or other retirement benefits, or to make an award of alimony in the event that [MEMBER] fails to comply with the provisions contained above requiring said payments to [FORMER SPOUSE] by any means, including the filing of bankruptcy, or if government or other regulations or other restrictions interfere with payments to [FORMER SPOUSE] as set forth herein, or if [MEMBER] fails to comply with the provisions contained above requiring said payments to [FORMER SPOUSE]. Withdrawal of TSP funds by a participant is normally limited to those separating from service, but in-service withdrawals may be made in two categories: "age-based" withdrawals1 and special "financial hardship" withdrawals. Notably, one of the four categories for such financial hardship withdrawals is "legal expenses for separation or divorce."2 Counter-intuitively, however, if a member is married, the spouse must normally consent to an in-service withdrawal, whether or not the parties are separated.3 The Court concluded that the Frye doctrine of equitable adoption, and "the myriad of other psychological theories of parentage that the parties mention in order to determine paternity" were inapplicable. Id. at 1406. The Court noted that NRS 126.051 provided for a rebuttable presumption, and was the statute to be applied in this case. The Court reversed the order finding the husband to be the father of the child, and remanded for further proceedings, noting that the joint legal custody order was also reversed. The cost of the Survivor Benefit Plan is deducted from the husband-retirees gross pension income of $2200 per month before the net remainder is divided between the parties pursuant to the permanent orders. Thus, the expense is shared equally by both parties.2 B> Most States that have brought themselves to issuing any guidelines at all for the distribution of pension plans have espoused rules for the division of the case at issue, without limiting language concerning whether different rules might be better applied if the retirement plan was some other kind of retirement plan. 1) Combine the adjusted gross incomes of the parents and determine the base combined child support obligation using the base combined child support obligation table. Our court determines that neither the child, nor a parent, nor any person acting as a parent has any significant connection to this State, and that no substantial evidence exists here as to the childs care, protection, training, and personal relationships; The Supreme Court reversed. The Court noted that the law favors hearing cases on the merits, if possible. The Court further noted that this policy is heightened in cases involving termination of parental rights. In considering a motion per NRCP 60(b)(1) asking to set aside an order terminating parental rights without appearance of a party, the district court must analyze whether the movant: (1) promptly applied to remove the judgment; (2) lacked intent to delay the proceedings; (3) demonstrated good faith; (4) lacked knowledge of procedural requirements; and (5) tendered a meritorious defense to the claim for relief. The USFSPA set up a federal mechanism for recognizing and enforcing State-court divisions of military retired pay, including definitions. One of these was of "disposable retired pay" (the sum that the military pay center could divide between spouses), which was defined as "the total monthly retired pay" minus certain sums, including sums deducted "as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38"6 or "equal to the amount of retired pay of the member under that chapter computed using the percentage of the members disability on the date when the member was retired" for a member retired under chapter 61.7 The Supreme Court reversed. The Court, in citing to various California cases, found that although the interlocutory decree was not a final judgment in determining marital status, it was final in all other respects. The Court held the request was res judicata as under California law, an interlocutory decree terminates the obligation for support in the absence of another provision. Military members accrue thirty days of leave each year. If not used, it accrues throughout service, and is worth its monthly equivalent pay, although newer regulations limit the amount of leave that can be accrued to 60 days, with some exceptions. States vary on whether or not unused vacation or sick pay (and thus, by analogy, accrued but unused military leave) constitutes "property" for equitable or community property division. The Supreme Court reversed on both issues. The Court noted that where payments were made with community funds which was owned by one spouse before marriage, the community was entitled to a pro tanto interest in such property in the ratio that the community payments bear to the payments made with separate funds citing to Sly v. Sly, 100 Nev. 236, 679 P.2d 1260 (1984) and Barrett v. Franke, 46 Nev. 170, 208 P. 435 (1922). The Court also noted that the fact that the post marriage payments were principally derived from the earnings of the owner-spouse was of no consequence and that the earnings of either spouse during the marriage were considered to be community regardless of which spouse earned the greater income or which spouse supported the community citing to Cord v. Neuhoff , 94 Nev. 21, 573 P.2d 1170 (1978). Because the income used to pay down the mortgage on the land was acquired during the marriage it was held error for the district court to have characterized the property as the wifes separate property. As to the residence, the Court similarly held that where a portion of the purchase price of separate property was paid for with community funds, the community acquired a pro tanto interest. Citing to Cord v. Cord , 98 Nev. 210, 644 P.2d 1026 (1982), the Court held where a spouse made a conscious choice to use his or her separate property, rather than available community property, to pay community expenses, the use of the separate property constituted a gift to the community. P> (Note that in this table, some states have two X marks. For example, in Louisiana, there is a set formula for equal custody, but extensive time is a deviation factor.) 3. "The new firm should take . . . reasonable steps to ensure that the nonlawyer [employee] does not work in connection with matters on which [he or] she worked during the prior employment, absent client consent [i.e., unconditional waiver] after consultation." The district court found that Ms. Rivero did not have de facto primary physical custody. Therefore, the court determined that an evidentiary hearing was unnecessary because it was not changing primary custody to joint custody, but was modifying a joint physical custody arrangement. The SBP applies automatically to a member who is married or has at least one dependent child at the time the member becomes entitled to retired pay, unless the member affirmatively elects not to participate in the SBP. The member's spouse must consent to any election not to participate in the SBP, to provide an annuity for that spouse at less than the maximum level, or to provide an annuity for a dependent child but not for the spouse. The husband lived in wifes separate property residence. Some $19,000 was paid toward the purchase price from community funds. The district court concluded the property was the wifes separate property because she made more than the husband did and because the husband received a benefit of living in the house that exceeded any community interest in the property that he would have received as result of the community payments. The Court cited to Cord v. Cord, 98 Nev. 210, 644 P.2d 1026 (1982) that held where a spouse makes a conscious decision to use his or her separate property, rather than available community expenses, the use of the separate property constituted a gift to the community and reversed the district court. The Supreme Court reversed. The holdings in Schwartz, Jones, Gandee, and Trent were reviewed. The Court reiterated that career advancement constituted a "good faith" reason to move, as did any reason that is not designed to frustrate the rights of the noncustodial parent. The Court held that it was a sensible good faith reason to move for greater income and advancement possibilities. The Court further held that improper weight was given to the fact the father would no longer have weekly contact and no serious consideration was given to the possibilities of alternative visitation. PLAN. The name of the plan to which this Order applies is the Public Employeesf Retirement System/Legislators Retirement System/Judicial Retirement System. The Plan is specifically directed to pay benefits pursuant to this Order. A) Determine the adjusted basic child support obligation by calculating the basic child support obligation pursuant to subsection (f)(2) of this section and multiplying it by 1.5. You can find The Marren and Page Case List Murphy v Murphy Harris v Harris Peavey v Peav Spousal Support The Marren and Page Case List Mack Ashlock Divison of Military Retirement Benefits In Divorce SectionV Subsection G Domestic Partnerships in Nevada Ogawa Amicus Brief Governing Law and Analysis Divison of Military Retirement Benefits In Divorce Section B Rivero State Bar Amicus Brief Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Factors to Consider in Deciding Whether to File in Federal or State Court The Marren and Page Case List Gepford v Gepford Las Vegas military retirement expert lawyer The Marren and Page Case List Awad v Wright Lamb v Lamb and Dept of Child a Rivero v Rivero Opinion Subsection Three Motion to File Errata on Rivero Public Employees Retirement System PERS Benefits Section III Subsection A P Divison of Military Retirement Benefits In Divorce Section V Subsection G D Penalty Calculations The Marren and Page Case List Aldabe v Aldabe Feral Paralegals The Marren and Page Case List Murphy v Murphy Harris v Harris Peavey v Peav available at lvfamilylawyer.com by clicking above. Site Map The Marren and Page Case List McGlone v McGlone Hesse v Andurst Litz v Benn The Marren and Page Case List Alba v Alba The Marren and Page Case List Marine Midland Bank v Monroe York v York and Las Vegas child visitation attorney Divison of Military Retirement Benefits In Divorce Section VIII The Marren and Page Case List Steward v Steward and Wallace v Wallace Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Reciprocal Links: The Marren and Page Case List Murphy v Murphy Harris v Harris Peavey v Peav The Marren and Page Case List Murphy v Murphy Harris v Harris Peavey v Peav The Marren and Page Case List Murphy v Murphy Harris v Harris Peavey v Peav The Marren and Page Case List Murphy v Murphy Harris v Harris Peavey v Peav |
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