The Marren and Page Case List Truax v Truax

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Custody best interest standard test in joint physical custody cases

The cases to date in Nevada indicate that disproportionate division is essentially a remedy for wrongful behavior on the part of the other spouse - waste, fraud, secreting or destroying community property, etc. Ultimately, the facts, and what can be proven, drive the availability of the remedy. The decision in that case relied on the earlier decision of In re Marriage of Daniels,2 which held that to whatever degree direct enforcement of a divorce decree might be prevented by application of federal law, the member would receive any sums that had been awarded to the spouse as a resulting trustee of her funds, and must pay them over to her. The language quoted was the principle espoused earlier by the California Supreme Court in Gillmore3 - that one party should not be allowed to defeat the other’s interest in retirement benefits "by invoking a condition wholly within his or her control." No mention is made of the apparent requirement that the "wage withholding or similar process" may only be initiated by an "authorized person" by sending the support order to the DFAS - or that such a person must normally be a District Attorney or other person with Title IV-D enforcement authority, not a private attorney.1 In other words, the process discussed is even more cumbersome than indicated, normally requiring a trip through the State’s child support enforcement bureaucracy before even starting the military process. Congress may will decide, as it has in the Civil Service and Foreign Service contexts, that more protection should be afforded a former spouse of a retired service member. This decision, however, is for Congress alone .... in no area has the Court accorded Congress greater deference than in the conduct and control of military affairs." The husband/attorney drafted a property settlement agreement providing, inter alia,that he would receive the law practice as his separate property and that the wife waived any interest in his income for the years 1990, 1991, and 1992. The wife had an attorney review the property settlement agreement on her behalf, but she signed the agreement in proper person. The husband and his attorney, both signed the agreement. In December, the husband filed a complaint for divorce with the district court through his counsel, the wife filed her answer in proper person, and the district court heard the matter and issued a decree of divorce that same day. The wife timely filed a Motion under NRCP 60(b) to vacate the decree and for a new trial alleging that the property settlement agreement was fundamentally unfair and that the husband had coerced her into signing the agreement. The wife submitted an affidavit stating that the husband had threatened her not to retain an attorney for the divorce action because he would lose his law practice, face imprisonment and resort to leaving the country due to tax evasion. The district court refused to set aside the agreement specifically finding that the wife had independent competent counsel to represent her and that the husband did not coerce her into signing the agreement. One court that did explain why it was ruling as it did was the Colorado Court of Appeals, in In re Marriage of Payne. The court held that ordering husband to pay for the wife's SBP gave the wife a right already enjoyed by husband, that is "the right to receive her share of the marital property awarded to her." The court adopted the "default" position for distribution of the premiums (discussed in the previous section), observing that: The language used in NRS 286.6703 (the provision calling for payments to "Alternate Payees") has implications that are significant to the practicalities of litigation, both as to what is stated, and what is not stated. Unlike many other retirement plans, there is no requirement that the order be a final order, so apparently an interim order is enforceable. The "other dependent" language in the definition of permissible alternate payees appears to clear the way for "palimony" or other such awards. There does not appear to be any payment limitation, so even 100% of the benefit could be transferred from the employee to the other party in an appropriate case. The provision in question, NRS 286.6703(3)(e), states that an order that will be approved for direct payment by the system, must, among other things, "not require the 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." B> There is little excuse today for divorce lawyers failing to deal with pension benefits. Pensions have been recognized as community property for many decades,1 and that recognition was extended to unvested and unmatured pension benefits long ago.2 Statutory and case law throughout the country now recognizes pension benefits as marital property with near-uniformity. Rationales for that recognition usually include that the benefits accrued during marriage, that income during marriage was effectively reduced in exchange for the deferred pension benefits, and that the choice was made to forego possible alternative employment which would have paid more in current wages, in order to have the pension. Congress was concerned that a forum-shopping spouse might go to a State with which the member had a very tenuous connection and force defense of a claim to the benefits at such a location. Shortly before the parties’ wedding, they signed a prenuptial agreement. After the marriage, the parties purchased a home in Las Vegas. In 1986, the couple purchased a home in Las Vegas ("Las Vegas house") for approximately $55,000. The district court entered a decree and in its findings valued the Las Vegas house at $60,000. The Supreme Court affirmed. The Court held that a finding of fact is not to be set aside on appeal unless clearly erroneous citing to Hermann Trust v. Varco-Pruden Buildings, 106 Nev. 564, 796 P.2 590 (1990). The Alternate Payee is entitled to a portion of the Participantfs retirement benefit based upon a mandatory selection of [please specify one option if applicable: the unmodified plan (option 1), or one of the options 2 through 6, as set forth in NRS 286.590] upon retirement in accordance with a set percentage of ______ [or the following distribution formula]: nbsp; Other courts have, similarly, found that a court can issue a spousal support award, postdivorce, sufficient to ameliorate the impact on an innocent former spouse whose "economic circumstances have deteriorated through no fault of her own" by reason of the former husband's post-divorce application for disability benefits in lieu of retirement benefits. In a State such as Nevada, with a presumptively equal property split, it would become a potential alimony factor, but perhaps factors such as "skill, personality, work ethic, reputation, and relationships" most properly belong in that analysis anyway. It isn’t much of a jump from those things to the "career asset" or "business acumen" that the Nevada Supreme Court has already directed courts to evaluate in making alimony awards. b) If the minority time-share parent is exercisin£ less time than 20%. detelmine if guideline support was reduced by thc presumptive maximum set out in NRS 125B.070. Ifso. the range of potential upward deviation for this factor is the difference betvveen the prcsumotive maximum and the percentage of income for support set out in NRS 125B.070Cll(bl. Ifnot. the ran~of Rotential deviation for this factor is based on the trial court's determination of the increased costs being incurred in the majoritv timewshare parent's household hv virtue of the lack ortlle minority time-share parent's visitation, SPAN> Gladys Baker Olsen Trust ex rel. Olsen v. Olsen, 109 Nev. 838, 858 P.2d 385 (1993)The district court entered order that "substantially and adversely" affected the trust in ongoing efforts by wife to enforce spousal support provisions. The district court basically ordered turnover of assets to former wife, and various administrative changes. The district court allowed intervention by the trust under NRCP 24 for purpose of allowing the trust to appeal under NRAP 3A(a). Supreme Court dismissed appeal, claiming there was no authority in the district court to allow post-judgment intervention to appeal a order already entered; the court’s allowance of intervention was beyond its jurisdiction. Therefore, appeal was dismissed. There was little effect from dismissal, since the trust was allowed to petition by extraordinary writ for same relief. See case below. PAN style="FONT-FAMILY: Times New Roman; FONT-SIZE: 14pt"> Partition actions, to be enforceable, must be brought with both sufficient "federal jurisdiction" under 10 U.S.C. § 1408 and adequate state court jurisdiction. When the partition action is brought in a different state than the one which granted the divorce, some courts have applied the partition law of the former matrimonial domicile, see Kirby v. Mellenger, 830 F.2d 176 (11th Cir. 1987), while others have elected to use the law of the forum where the suit is heard. See Fransen v. Fransen, 190 Cal. Rptr. 885 (Ct. App. 1983). The USFSPA now only allows partition (or any other postdivorce order affecting the retirement benefits) if the issuing court has proper federal jurisdiction over both the member and the former spouse. See 10 U.S.C. § 1408(d). The AAML continued studying the issue, and a decade after the first edition, published a substantially updated and expanded version of the bounds in 2000. The newer version includes an extensive discussion of the propriety of various fee arrangements, and setting out in summary form the research and commentary supporting the Bounds. The Nevada Family Law Practice Manual includes both versions of the bounds for reference. 8) is incapable of self-support because of a mental or physical incapacity that existed before becoming 18 years of age and is dependent on the member or former member for over one-half of the child's support; or RPC 5.3(c) states that "A lawyer shall be responsible for conduct of such a person [nonlawyer assistant] that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer," if the lawyer orders it, knows about it, or ratifies it, or if the lawyer is in a position of authority but fails to prevent or mitigate the conduct. Before June, 1981, the treatment of military retirement benefits upon divorce varied widely from State to State. Many courts in the 1960s and 1970s did not acknowledge such benefits as property, characterizing them as either the sole property of the individual in which they were titled or "mere expectancies." Spouses were seldom awarded an interest in military retirement benefits, as such, upon divorce. The premiums for Option A work like normal SBP premiums, in that they come "off the top" of benefits payable. Premiums for Options B and C are paid by way of that reduction, plus an actuarial reduction in the benefits paid. This is how the system accounts for coverage being in existence years before eligibility for retirement benefits is reached. Second, each year the COLA for such members is less than for other retirees (Consumer Price Index adjustment minus one percent). However, at age 62, the retiree's monthly income is recomputed to supply the sum that would have been paid if the full COLA had been applied every year from retirement to age 62, which at that moment becomes prospectively payable, as ifthere had been no reductions during those intervening years." After that "restoral," however, the reduction returns with each COLA after age 62 for life. SPAN> The 1992 Report also discussed tying any reduction in guideline child support not just to expanded time spent by the non-custodial parent with the child, but also with reductions in expenses paid in the primary custodial household, and warned of the incentive to litigate custody in order to affect support awards that would be created by any mechanical (formula) set-up: The legislature did not define what is meant by a "compelling reason" which would permit an unequal division of community property, and no existing body of statutory or case law provides a reliable precedent. In Lofgren v. Lofgren,7 the Nevada Supreme Court identified one "compelling reason" which would justify an unequal division of community property as the financial misconduct of one of the parties, such as waste or secretion of community assets in violation of court order.8 The cases to date in Nevada indicate that disproportionate division is essentially a remedy for wrongful behavior on the part of the other spouse - waste, fraud, secreting or destroying community property, etc. Ultimately, the facts, and what can be proven, drive the availability of the remedy. 2) If the spouse or former spouse to whom payments are to be made under this section was not married to the member for a period of 10 years or more during which the member performed at least 1 0 years of service creditable in determining the member's eligibility for retired pay, payments may not be made under this section to the extent that they include an amount resulting from the treatment by the court under subsection (c) of disposable retired pay of the member as property of the member or property of the member and h is spouse. As a general proposition, spouses should try to begin receiving payments as soon as possible once the right to do so accrues. Military retired pay is not like a defined contribution plan with a specific balance;1 it is a defined benefit plan, in that it provides a stream of payments that can be tapped for a present spousal share, but has no mechanism for collecting property payments once they are missed. In other words, any arrears in military retirement benefits payments must be collected from the member directly; the military will not garnish for such arrearages. In short, paying adequate attention to discerning and addressing retirement benefits is not only advisable, but necessary, for anyone practicing family law. For the purposes of this credit, "days" means overnights spent caring for the child. Failure to exercise court-ordered visitation may be a basis for modification. The credit for extraordinary visitation shall not reduce a child support obligation below the minimum amount required by the guidelines ($50 for one child, $75 for two children, $100 for three children, or $125 for four or more children). B> The major problem facing bureaucracy is not the struggle for power but the evasion of responsibility; bureaucrats are very reluctant to take action. P> The statutes granting jurisdiction to make certain interim orders appear to have originally contemplated the situation in which one of the parties removes a child from the jurisdiction prior to filing, although NRS 125.470(1) was modified to explicitly permit the court to enter the same type of orders either before or after a "final order" is granted: UP> Some States have made such results a matter of statute. In Texas, Family Code Title 5, § 153.3161 explicitly permits a military member to designate a "stand-in" to take the member’s place for parenting time scheduled for a time during which the member is deployed outside the U.S.; but § 156.105 describes such deployment as a "material and substantial change of circumstances sufficient to justify modification of an existing court order." The family division of the district court issued a temporary protective order against the defendant. A complaint was filed in the municipal court charging the defendant with a misdemeanor based on alleged violation of the protective order. The defendant moved to dismiss the charge contending the Legislature granted exclusive jurisdiction to issue and enforce TPO’s to the district court and the justice court. The City opposed the motion contending the municipal court had jurisdiction to enforce TPO’s. The municipal court judge granted the motion to dismiss. The City appealed to district court and filed a petition for writ of mandamus with the district court. The district court denied the petition and dismissed the appeal. The city then filed a writ of mandamus with the Supreme Court. The Supreme Court granted the petition stating: It seems likely that no one checked the separate maintenance statutes, and it was simply assumed that they included the power to declare parties to be owners, rather than mere "possessors," of property. Irrespective of intent, as of 1975, NRS 123.220(2) has given courts the apparent ability to declare, by way of decree of separate maintenance, that property acquired (presumably after the date of the decree) is the separate property of the party acquiring it. This is the construction given to the provision by the Nevada Supreme Court, without significant history or analysis, in Forrest,1 where the Court deemed earnings acquired after the parties separated, but before divorce, to be community property because:

You can find The Marren and Page Case List Truax v Truax Child Support Child Custody Modification Jurisdiction Divorcing the Military and Serving the Civil Service Section III Subsection Time to distinguish enterprise and personal goodwill The Marren and Page Case List Cord v Neuhoff The Marren and Page Case List Fick v Fick When Does the Community End The Marren and Page Case Russo v Gardner McDermott v McDermott and Hayes v The Marren and Page Case List Bush v State Department of Human Resources Whether the Left Behind Parent was Actually Exercising Rights of Custody Rivero State Bar Amicus Brief Subsection II B Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Division of Just Community Property or Other Property Considered Death of Member Before Retirement and After Divorce The Marren and Page Case List Ormachea v Ormachea Murphy v Murphy and Kern The Marren and Page Case List Levy v Levy The Marren and Page Case List Pryor v Pryor When QDROs should be drafted litigated and entered The Marren and Page Case List In the Matter of Parental Rights as to K D L The Marren and Page Case List Truax v Truax available at lvfamilylawyer.com by clicking above.

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