What is Considered Separate Property Including Characterization of Earnings

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The fine-line drawing calls into question the ends that are supposed to be served by the prohibitions embedded in our ethical rules, and whether the public policies implicated are served by allowing or prohibiting either "results-achieved bonuses," or regular contingency agreements, given the place of divorce in modern American life. Put another way, is there still a legitimate purpose to be served by preventing counsel from being retained other than on a strictly hourly basis in cases involving alimony, or any other domestic relations matters? From a retirement benefits point of view, the death of one party or the other is merely another "value-altering possibility" to be anticipated and structured into the disposition of the retirement benefits upon divorce. 65279;The problem, in a nutshell, is that when a retiree receives a post-divorce disability award, the "disposable" pay already divided between the member and former spouse is decreased, and money that was supposed to be paid to the former spouse is instead redirected to the retiree, no matter what the divorce court ordered. If the court finds in the petitioner’s favor, it should issue an order with findings that the child’s habitual residence (prior to the wrongful removal or retention) was the place the child was located just prior to the respondent’s removal or retention, that the respondent’s removal or retention was wrongful in accordance with the Convention, that the removal or retention was in violation of the petitioner’s custody rights, and that the child is ordered returned to the country of the left-behind parent, in order for that country to determine custody. PAN style="FONT-FAMILY: Times New Roman; FONT-SIZE: 14pt"> 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 if there had not been reductions during those intervening years. 30 After that "restoral," however, the reduction returns with each COLA after age 62 for life. 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. Five years later, the Eighth Circuit in Bush v. Taylor, 912 F.2d 989, vacating 893 F.2d 962 (8th Cir. 1990), concurred as to the non-dischargeability of the former spouse’s future interest in payments to the former spouse, but held that any sums paid to the member and kept rather than being paid to the former spouse were retained by the member wrongfully, and he remained liable despite the bankruptcy for the full amount of payments that should have, but were not, made to the former spouse. The bankruptcy thus had no impact on the former spouse’s rights. 65279;It makes little sense for the law to protect the putative rights ofthose who do not even try to secure rights upon divorce, while denying any protection to those who believe they have already litigated and received a valid court order protecting those same rights, but that is the bottom line of the law as it now stands. Even the Department of Defense has recognized the unnecessarily harsh results that are produced by the current law.i" but Congress has not yet taken any action to correct the situation. The case was an action on a promissory note. A claim was made that the husband owed the boarder some sum of money. A promissory note was executed by the husband in favor of the boarder on March 1, 1917, for $1,000. The complaint alleged that no part of the note, either principal or interest, had been paid, except $330, which was paid on account of said note as follows: March 1, 1920, for $10, and November 1, 1920, to June 5, 1921, at the rate of $10 each week, and that said sums paid had been credited on account of the principal and interest of said note. The boarder had roomed at husband and wife’s home for a week beginning March 1, 1920, and also from November 1, 1920, to June 5, 1921. In regard to the payments, the boarder testified that some time in May 1921, at the husband’s home, the husband agreed with him that his board and lodging during the times mentioned was to be charged for at the rate of $10 per week, and to be credited on the note. The husband denied that any such agreement was made, and contended that the evidence showed that the amount due for the boarding was the earnings of his wife, and, as such, was her separate property. State statutes and cases express different preferences for the possible "cash out/exchange" and "if/as/when" division methods of allocating retirement benefits. 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. The fine-line drawing calls into question the ends that are supposed to be served by the prohibitions embedded in our ethical rules, and whether the public policies implicated are served by allowing or prohibiting either "results-achieved bonuses," or regular contingency agreements, given the place of divorce in modern American life. Put another way, is there still a legitimate purpose to be served by preventing counsel from being retained other than on a strictly hourly basis in cases involving alimony, or any other domestic relations matters? The problems with retirement benefits orders that are badly drafted, or not drafted at all, got an increasing amount of attention, and was made the subject of the Advanced Track seminar at the annual meeting of the Nevada State Bar Family Law Section at Ely in March. There are lump-sum distribution options from the plan (if $3,500 or less, the full fund balance is automaticallydistributed at the time of separation from service). More importantly, hardship loans up to $50,000 are available against the plan balance, and a specific category of hardship for loan purposes is "unpaid legal costs associated with a separation or divorce." Presumably, a developing disability would likewise qualify as a "hardship." Between 1981 and 1989, McCarty, the USFSPA, and Mansell set up the framework within which all courts since then have struggled with issues relating to military retirement benefits and disability benefits, made much more confusing by the retroactive application of each later piece of the structure. A) an appropriate agent of the Secretary concerned designated for receipt of service court orders under regulations prescribed pursuant to subsection (i) or, if no agent has been so designated, the Secretary concerned, is personally served or is served by facsimile or electronic transmission or by mail; It is suggested that the trial court should view the facts and circumstances of the case from a child-centered9 perspective and look to facts establishing the quality of the parent’s interactions with the child, including the relationship with the child, where the child resides and when, the care and supervision provided to the child, and how and where each parent provides that care and supervision. The foregoing are not intended to be the sole factors considered. The list should be inexhaustive 10 and focus the analysis on the unique facts of each child’s life. Presumably, the burdenof making the showing should be placed on the minority time-share parent asking that the timeshare be recognized as one of joint-but-unequal custody. SPAN> Federal law allows former spouses to collect up to fifty percent of disposable retired pay otherwise payable to retired military service members (65% when certain arrears are being garnished in addition to present payments). Military retirement benefits can be treated as property to be divided between the parties, or as a source of payment of child or spousal support, or both. SUP> At any time, a military retiree can apply to the Veteran’s Administration to be evaluated for a "service-connected disability." If the evaluation shows such a disability, a rating is given between 10% and 100%, and "compensation" is paid monthly from the VA in accordance with a schedule giving a dollar sum corresponding to each 10% increase, plus certain additional awards for certain serious disabilities. Still further waivers of retired pay for VA disability pay can be given if the retiree has dependents (a spouse or children, or even dependent parents). It makes sense for a retiree to obtain a disability award, even with a dollar-for-dollar reduction in retired pay, because the disability awards are received tax-free.4 The parties each requested custody of their children. After hearing evidence, the master made and filed his report, recommending that a divorce be granted to the husband and the custody of the children be awarded to their mother. The district court awarded custody of the children to the father during the school months and to the mother during the summer vacation months of each year, and provided for alternate custody on certain holidays. The mother received primary custody of the three children. In June 1977, one of the parties’ children moved into the father’s home. In response, the father reduced the support payments by $250 per month for the months of June and July, and $474.50 from the payment August payment. In August 1977, the mother filed a motion for judgment for arrearages, requesting a judgment for the amounts withheld from the June and July payments. At the hearing, the father testified that he had in fact reduced the payments for June, July, and August. The father argued that he should be entitled to an "equitable setoff" of the amounts he actually expended on his son while he was living with him. The district court entered judgment for the arrears and held the father in contempt for reducing the payments. SPAN> The Court concluded that before a person who was a resident of another state could establish a legal residence in Nevada under the statute existing prior to the 1911 act; it was absolutely necessary that he must have come into the state with the bona fide intention to make Nevada his permanent home. The Court held the wife having come to Washoe County with the view of becoming a bona fide resident of the county, but for the sole purpose of obtaining a divorce and then returning to the state from which she came, the district court did not acquire jurisdiction. Sick leave is also accrued at the rate of 1¼ days per month of continuous service, and is cumulative from year to year.24 Once a maximum of 90 days has been accrued, only half of each year’s accrual of sick leave can be added to the total of accrued, unused sick leave in most cases.25 Upon termination of employment (not the employee’s fault), retirement, or death, state employees are entitled to lump sum payment of their accumulated annual leave pursuant to a complex formula.26 The Supreme Court affirmed. In this case an award of "rehabilitative alimony" was "fair and equitable" under the "wide discretion" of district courts which is not to be disturbed absent an abuse of discretion, given both parties’ current capabilities and that the husband had the ability to generate income, while the wife needed alimony because, at the husband’s request, she had been unemployed during most of the marriage. The Court concluded that the husband failed to present sufficient evidence to demonstrate that the district court’s judgment was anything other than "equitable and just" or that it failed to consider the requirements of NRS 125.150. 65279;In 1999, the Washington state Supreme Court decided In re Marriage of Jennings. The court found that a retiree who terminated a stream of payments to a former spouse by electing, post-divorce, to begin taking disability rather than retired pay created such "extraordinary circumstances" that the trial court should take the "justified remedial action" of awarding compensatory spousal support even four years after the divorce in order to "overcome a manifest injustice which was not contemplated by the parties at the time ofthe 1992 decree." The court noted the reduced stream of payments to the spouse, and held that: The Court concluded the property settlement was the product of an attorney-client relationship. The Court held that the creation of an attorney-client relationship was not precluded by the mere fact of a legally close or blood relationship. The Court further concluded that formality was not a necessary element in the creation of such a relationship, and the relationship may exist even though the attorney rendered his or her services gratuitously. The Court further held that such a fiduciary relationship was subject to losest scrutiny by the courts. The Court in citing to Davidson v. Streeter, 68 Nev. 427, 44041, 234 P.2d 793, 799 (1951), and Moore v. Rochester W. M. Co., 42 Nev. 164, 176, 174 P. 1017, 1020-21 (1918) reiterated that when an attorney deals with a client for the former’s benefit, the attorney must demonstrate by a higher standard of clear and satisfactory evidence that the transaction was fundamentally fair and free of professional overreaching. The Court noted that in case of doubt or ambiguity, a contract is construed against the party drafting it. Here, the husband failed to prove that wife "completely understood her property rights when she executed the agreement." The Court held that the wife’s disclaimer of interest in law practice was "unavailing" to him, where it was "made in an informational vacuum, without a full understanding of the rights she was relinquishing." The vacancy in Department D occurred on July 1, 2008, when Judge Hardcastle retired. On August 22, 2008, in accordance with Nevada Constitution Article 6, Section 20(1), the Governor appointed Robert Teuton to Department D from among three nominees selected by the Commission on Judicial Selection. The Feder court recognized that the mother went to Australia reluctantly, but found that she consented to the move, and was not coerced. The court found that Mrs. Feder had a "settled purpose" to remain in Australia and that, therefore, Evan was settled: "That Mrs. Feder did not intend to remain in Australia permanently and believed that she would leave if her marriage did not improve does not void the couple’s settled purpose to live as a family in the place where Mr. Feder had found work."4 Australia was found to be Evan’s habitual residence, and therefore was the proper jurisdiction to determine the parties’ conflicting claims for custody. Ms. Rivero and the Family Law Section assert that this court should clarify the definition of joint physical custody to determine whether it requires a specific timeshare agreement. The Family Law Section suggests that we define joint physical custody by requiring that each parent have physical custody of the child at least 40 percent of the time. In accordance with this suggestion, and for the reasons set forth below, we clarify Nevada's definition of joint physical custody pursuant to Nevada statutes and caselaw and create parameters to clarify which timeshare arrangements qualify as joint physical custody. Not all lawyers know that the Bar process could be initiated by either a lawyer or a client, and recent events have led to far greater interest in that process for both, but the system, as now constituted, is nowhere near up to the task of being useful.

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