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Military Retired Pay and the Dangers of REDUX
Learn more about Military Retired Pay and the Dangers of REDUX.
bdSUP> Notwithstanding the protections for members, courts have been less than indulgent of attempts to use the SCRA as a tactical weapon. In Lenser v. Lenser,1 the parties had separated, but did not yet have a custody order; the child was primarily living with the non-military spouse, but visiting briefly with the member. The Arkansas Supreme Court was unimpressed by the attempt of the member to transfer custody to the child’s grandmother by dropping her off there and seeking a stay. 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 member; in this case, she would get a pension share based on 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 ¨C $308.05, but not until after the member¡¯s actual retirement, ten years later. The Court applied the requirements of Hill v. Sheriff, Clark County, 85 Nev. 234, 452 P.2d 918 (1969) to juvenile cases. Hill requires a party seeking continuance of a preliminary examination to submit an affidavit listing the names of the absent witnesses and their residences, if known; the diligence used to procure their attendance; a brief summary of the expected testimony of the absent witnesses and whether their evidence could be adduced through other witnesses; when the affiant first learned the witnesses would not attend the hearing; and that the motion is made in good faith and not for delay. The Supreme Court found that the district attorney’s office could have complied with Hill given the two weeks they had to comply. DOMESTIC RELATIONS ORDER. Domestic Relations Order means any judgment, decree or order (including approval of a property settlement agreement) which relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child or other dependent, and is made pursuant to a State of Nevada domestic relations order (including community property law). Iowa Supreme Court faced such a conflict in the case of In re Benson.1 The trial court had used a time-rule approach, with the wife’s percentage to be applied to the sum the husband actually received, whenever he actually retired. Hvpothetical. The parties have two children. Father ("F") earns $2,000 per month and has the children 15% of the time. Mother ("M") cams $6,000 per month and has the children 85% of the time. 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;" 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 Nevadans for Nevada v. Beers, this Court held that "[t]he Nevada Constitution should be read as a whole, so as to give effect to and harmonize each provision."1 Absent a practical interpretation of the phrase "next general election," however, holding the seat vacant as of 2008 election would render the provisions of Section 5 nugatory, because it would not be possible for the voters to elect a judge to Department D "at the general election which immediately precedes the expiration of the term of his predecessor." The attorney for the former spouse should try to provide for the court’s continuing jurisdiction to enforce its award by means of post-divorce order.1 Virtually all of the things that could happen after divorce to change the expectations of the parties as to payments will work to the disadvantage of the former spouse, so it is that party who must make it as simple as possible to get back into court to correct later problems. SUP> Notwithstanding the protections for members, courts have been less than indulgent of attempts to use the SCRA as a tactical weapon. In Lenser v. Lenser,1 the parties had separated, but did not yet have a custody order; the child was primarily living with the non-military spouse, but visiting briefly with the member. The Arkansas Supreme Court was unimpressed by the attempt of the member to transfer custody to the child’s grandmother by dropping her off there and seeking a stay. Potter v. Potter, 19 P.3d 1246, 121 Nev. Adv. Rep. 60 (September 22, 2005)The parties were married in 1994 and had one child. Shortly after the child was born, the parties divorced. The mother was initially awarded primary custody. The parties later agreed to share joint physical custody. In 2003, the mother received an employment offer from a California hospital for a nurse position at a higher salary. The mother filed a move motion. In the motion, the mother indicated that she also wished to become a nurse anesthesiologist degree which could not be done in Las Vegas and that her employer would pay much of the expenses. The father contended that the mother could not file a relocation petition unless she first successfully moved for primary custody. The father further claimed that he should receive primary physical custody. The district court treated motion as a move motion and did not address the father’s request for custody. The district court conducted a Schwartz analysis and concluded that the mother should receive permission to move. The district court granted primary physical custody to the mother provided for significant contact and visitation between the father and the child. The Supreme Court reversed. The parties agreed that the relocation statute did not apply to joint physical custody arrangements. The parties disagreed as to what should happen when a parent wished to sever joint physical custody, seek primary physical custody, and relocate with the child out of state. The Court reviewed NRS 125C.200. The Court noted that the statute did not define custodial parent and the statute contained no reference to shared or joint custody in contrast to the prior version of the statute. The Court also reviewed the legislative history. The Court noted that the legislative history showed that the Legislature intended that the move statute only applied to primary physical custody situations. The Court held that a parent sharing joint physical custody is not eligible to petition to relocate with a minor child under NRS 125C.200. The Court further held that district courts must apply NRS 125.510(2) and the best interest of the child standard to such situations and when a parent with joint physical custody of a child wished to relocate outside of Nevada with the child, that parent must move for primary physical custody for the purposes of relocating. The Court additionally directed that a district court must consider the motion for primary custody under the best interest of the child standard established for joint custody situations in NRS 125.510 and Truax v. Truax, 110 Nev. 437, 874 P.2d 10 (1994). The moving party has the burden of establishing that it is in the child’s best interest to reside outside of the state with the moving parent as the primary physical custodian. 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. The Supreme Court reversed. The Court held that when one spouse is the named beneficiary in the life insurance policy of the other spouse, and remains so at the time of the insured’s death, all proceeds vest in the surviving spouse as separate property even though all the premiums had been paid with community funds. Id. at 692. The Supreme Court reversed. While affirming its prior discussion of Truax v. Truax, 110 Nev. 437, 874 P.2d 10 (1994), the Court held such a request must be based on new evidence since the last ruling on the issue of custody per McMonigle v. McMonigle,110 Nev. 1407, 887 P.2d 742 (1994). The court found it important that the parties had previously stipulated to joint physical custody and that NRS 125.490 therefore raised a presumption in favor of maintaining joint physical custody which the district court had not adequately considered when it terminated the joint physical custody relationship. B> Neither the Hague Convention, nor ICARA, has any particular requirement for a formal hearing prior to issuance of an Order Directing Return of Child. In practice, however, judges are loathe to issue any such orders without convening at least one hearing on the question of whether such an order should issue. We’ve noted some disturbing trends relating to paralegals in Nevada, which are worthy of greater attention by lawyers generally, and the Bar disciplinary office in particular. In the cases cited above, and others, the post-divorce disability award sought and awarded to the retiree was not allowed to block the spouse’s right to continued payments under the terms of the decree. Even if Mansell does have to be considered in post-divorce recharacterization cases, courts have mandated that former spouses must be compensated, by awards of other property, or alimony, or (most commonly) dollar-for-dollar compensation of all amounts that would have been paid but for the recharacterization. The district court held a custody hearing, during which the parties presented contradictory testimony regarding how much time Mr. Rivero actually spent with the child. The district court ruled that the matter did not warrant an evidentiary hearing. The district court further found that the use of the term joint physical custody in the divorce decree did not accurately reflect the timeshare arrangement that the parties were actually practicing, in which Ms. Rivero seemed to have physical custody most of the time. As a result, the court denied Ms. Rivero's motion for child support, found that the parties had joint physical custody, and ordered the parties to mediation to establish a more equal timeshare plan to reflect ajoint physical custody arrangement. This change made a huge difference in the payments received over a lifetime, but it only affected divorces final on or after February 4, 1991. All prior cases continued to be governed by the older rules (i.e., the sum payable under divisions of disposable pay as previously defined remained in effect), and any variation between intent and effect could only be changed case by case. P> All aspects of the calculation of interest and penalties were discussed at length in the resulting hearings held before the Assembly Judiciary Committee. After hearing and reading everything about why the law was the way it was, why the Welfare Division was trying to change the law to conform to their outdated computer capabilities, and why it would be a really terrible idea to do so, the Legislature left the "how-to-compute-penalties" portion of the statute exactly as it was, knowing how the private Bar had been doing the calculations for 17 years (as to interest) and 10 years (as to penalties). The parties were married July 1934. In April 1963, the parties entered into a separation agreement. The husband agreed to pay $225 per month for support so long as the wife did not remarry, and $87.50 per month for the support of two of their children. The agreement also provided, that if the husband failed to perform his obligation, the wife could, sue for breach of the contract, or seek such other remedies in law or equity as might be available to her. The agreement also permitted either party to sue for absolute divorce in any competent jurisdiction, to require the agreement to be offered in evidence, and if accepted by the court incorporated by reference in the decree. The agreement provided that notwithstanding incorporation of the agreement into the decree, it was not to be merged in the decree but was to survive and be enforceable as a contract binding upon the parties for all time. The husband then moved to Nevada and obtained a divorce. The agreement was not offered in the action nor did the Nevada court acquire personal jurisdiction over the wife. Rather than paying the wife support, the husband began depositing $75 of the $175 per month he was supposed to in a bank in Las Vegas as an educational fund. The wife then initiated a Uniform Reciprocal Enforcement of Support Act proceeding in New York against the husband. In Nevada, the district attorney, on behalf of the wife, entered into a stipulation with the husband's counsel, which was approved by the court, under which the husband agreed to send $100 per month to the wife for support and continue to accumulate $75 per month as an educational fund. The husband then stopped paying alimony. The wife then commenced an action in Nevada to enforce the agreement claiming that $4,050 was due for alimony and $3,150 was due for child support. A trial was held and the district court reduced the child support to $75 per month and the alimony to $50 per month. The Uniform Interstate Family Support Act ("UIFSA") has been adopted in every State. Nevada adopted it in 1997 as NRS Chapter 130; the additional federally-mandated provisions are contained in NRS chapters 31A, 125B, and 425. Like the UCCJEA did with the federal PKPA, it follows up on a federal enactment with a similar purpose and construction.1 It is the far better practice to deal with pensions during the divorce itself, instead of deferring the matter to be dealt with "later." Some states do not clearly permit a spouse who does not receive a portion of pension benefits upon divorce to bring a partition action at a later date to divide those benefits, and the law on the subject still contains some contradictions. Under the existing case law, the scope of judicial discretion in "disproportionate division" cases would appear to be at least as broad as that exercised by trial courts in other contexts, such as awarding alimony or awarding attorney’s fees. In disproportionate division cases, the court need only find (and identify in writing) some "compelling reason" (presumably, tied to one of the categories identified by the two opinions) without doing any of the things that have been found to be an "abuse of discretion" in other contexts, such as making a pronouncement in the absence of any substantial evidence in the record, or reaching a conclusion based on an identifiably erroneous legal rationale. The court therefore found that the child support called for in the divorce decree could be converted into a QDRO nunc pro tunc after the death of the participant, finding that there is no requirement in ERISA that a QDRO must be finalized before the benefits become payable. The QDRO provisions of ERISA do not suggest that an alternate payee has no interest in plan benefits before a QDRO is obtained - rather, they merely prevent enforcement of that "already-existing interest" until the QDRO is issued and served on the plan.1 The Nevada Supreme Court has expressed considerable sensitivity to balancing the triangle of needs and duties among clients, who have a right to expect that their information will remain confidential, non-attorney legal staff, who need reasonable employment opportunities, and law firms, which require the freedom to employ the most qualified job applicants. See Leibowitz v. District Court, 119 Nev. 523, 78 P.3d 515 (2003) (screening of non-attorney personnel is authorized so long as adequate provisions are made for the protection of client confidences); overruling in part Ciaffone v. District Court, 113 Nev. 1165, 945 P.2d 950 (1997). P> The Court made it clear that the hearings on remand were not to allow any new evidence or testimony, but only complete the judicial act of entry of a judgment.3 After remand and entry of judgment, in a third appeal, the husband asked the Court to change its mind and order additional evidence be taken, but the Court held the parties to the evidence that they had presented as of the time of trial, stating that "equity does not require a remand to permit appellant to proffer explanatory matter he should have adduced at the first hearing of this cause."4 Thus, the critical time period as to evidence of the property belonging to the parties was the time of the divorce trial, not that of the (much-delayed) filing of the judgment. If and when concurrent receipt has been fully implemented in a given case, totally eliminating the required waiver, a retiree’s application for and receipt of regular VA disability benefits would have no effect on a pre-existing division of military retired pay between the retiree and his former spouse; he would just get additional benefits. So, after 2014, spousal suits based on regular VA waiver disability applications should no longer be happening - at least for those with a disability award of 50% or more and who are taking benefits under the CRDP, not CRSC, program. For those with lesser VA disability percentages, the legal issues are identical, but the dollars at stake are (necessarily) lesser. The "presumptive maximum" never did make theoretical sense, and artificially reducing child support so that children don’t share in the income of both their parents violates the principle on which our child support statute is based. The entire "presumptive maximum" structure should be tossed. In its place, Nevada should enact a Wisconsin- like universal application of a percentage of income to everyone (up to an income level high enough to encompass most of the population), with a permissive percentage application above that threshold for the relatively few extraordinary-income earners. The full history of the dual compensation rules are beyond the scope of these materials.2 The short version is that military retired pay was reduced for members who retired from the military and began civilian work for the federal government. Obviously, any reduction in the amount of retired pay payable to a member affected the spousal interest as well. Court decisions did not appear to follow any clear theoretical model. The statutory scheme makes it clear that only the State with CEJ can determine that there is no significant connection remaining. So it simply makes no sense for lawyers to continue filing motions asking our courts to determine that some other State should not exercise its CEJ. The only thing that could be asked of our Court is the factual determination that all relevant persons do not reside in the State issuing the earlier order; if any other basis for changing or relinquishing jurisdiction is required, the request must be made in the State issuing the earlier order. In accordance with NRS 193.021, "Personal property" includes dogs, all domestic animals, and birds. Basically, your beloved pet has as much significance in law as the expensive collar he or she is wearing. According to NRS 123.130 and case law, all property acquired after marriage is presumed community property, which is to be divided equally. Notwithstanding that, pet owners see their animals as more then just another inanimate object. Over time they become members of the family, but the law demands us to place a monetary value on "Fluffy." There is an attraction to the concept of holding parties to their agreements, no matter how ill-advised, no matter what changes later, and no matter the effects on third parties. In the context of child support, however - as in child custody - it is more appropriate for the result to be guided by the public policy goals of protecting those who have no part in making such agreements. The result in this case will do lots more good than harm, and was the right call. Using this approach, absurd results stemming from the negation of upward deviations when the presumptive maximum is applied, will not occur. The proposed approach will also eliminate the possibility of absurd results stemming from the Rivero Formula¡¯s strict percentage-of-time approach which does not consider the direct financial impact on the respective parents or the adequacy of support of the child in either household. The national AAML has for many years had working groups dedicated to review of the ethical codes governing family law practice, and conceived the idea for what would become known as the "Bounds of Advocacy" in November, 1987. The committee, which canvassed the entire AAML for its collective wisdom and experience, included Gary Silverman of Reno; the proposed text was vetted and reviewed by academics and judicial authorities for years before its publication in 1991. PAN style="FONT-FAMILY: Times New Roman; FONT-SIZE: 14pt"> We find it disturbing that despite our decision in Schwartz, many district courts are using NRS 125A.350 as a means to chain custodial parents, most often women, to the State of Nevada. NRS 125A.350 is primarily a notice statute intended to prevent one parent from in effect ´stealing’ the children away from the other parent by moving them away to another state and attempting to sever contact. Given the legislative purpose behind NRS 125A.350, it should not be used to prevent the custodial parent from freely pursuing a life outside of Nevada when reasonable alternative visitation is possible. Id. at 315. But the chart AOC put up at the beginning of April had the number for the first bracket at $513, and the chart now up is at $580. That was reached because last year's number was $566, and the CPI for December-toDecember from 2005 to 2006 was 2.5%. So what the LCB directed was: $566 x 1.025 = $580.15, rounding to $580. Shortly before the wedding, the couple signed a prenuptial agreement drafted by the husband. The agreement set forth, among other things, a provision waiving the parties’ rights to alimony upon divorce. The body of the agreement acknowledged that each party attached a schedule of their various premarital assets and obligations. However, the husband did not attach his schedule until a year after they signed the agreement. The wife filed for divorce. After a trial, the district court entered a decree and issued findings of fact and conclusions of law. In its findings, the district court: (1) characterized a lot as community property and ordered it sold; (2) valued the Las Vegas house at $60,000; (3) declared the alimony waiver provisions of the prenuptial agreement unenforceable; and (4) granted the wife $14,400 in unpaid support, $3,000 in rehabilitative alimony and $3,000 in attorney’s fees. You can find Military Retired Pay and the Dangers of REDUX New Developments in Jurisdiction military spouses The Marren and Page Case List Hermanson v Hermanson The Marren and Page Case List Petition of Fuller Feral Paralegals Divison of Military Retirement Benefits In Divorce Section VII Judicial or Administrative Decision Agreement of Having Legal Effect Military Retired Pay and the Dangers of REDUX part two of two The Marren and Page Case List Chesler v Chesler and Prins v Prins Joint Titling Gift or Separate Claims Still Allowed Tracing Divorce Jurisdiction Rivero State Bar Amicus Brief Approches Relating to Unequal Joint Custody The Marren and Page Case List In the Matter of Parental Rights as to Q L R Las Vegas family law advocate Calculations by the Bar and Agencies Differed a Little community property Why It Might Be Appropriate to Re-allocate the SBP Premium Divorcing the Military and Serving the Civil Service Section II Subsection The Marren and Page Case List Zahringer v Zahringer Legal Separation Allowed Military Retired Pay and the Dangers of REDUX available at lvfamilylawyer.com by clicking above. 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