 
|
The Marren and Page Case List Truax v Truax
Learn more about The Marren and Page Case List Truax v Truax.
Custody best interest standard test in joint physical custody casesbsp; (c) whether the custodial parent is willing to comply with any substitute visitation orders issued by the court in the event that permission to move is granted; Other courts have expressly found that reimbursement is required, whether or not there was any kind of indemnification or safeguard clause in the underlying decree.3 As in other subjects discussed above, the cases fit into a few separate categories, depending on the order and timing of the disability, retirement, and divorce. For the purpose of this discussion, we will focus solely on the category that has produced the bulk of the litigation, and authority in the field - where members waived at least someregular, longevity retired pay in favor of VA benefits, afterthe parties to the case divorced. Creating such a continuing incentive for obligors to make payments sooner, rather than later, was what the Legislature said it was trying to do in 1993 - a purpose that would be frustrated by any policy that did not provide a continuing incentive to actually make up arrears each passing day.3 The assertion in the 2004 opinion letter that making late fees continue to accrue over time would result in "double interest on total arrearages owed by an obligor" is just wrong as a matter of fact, and ignores the differences between interest and penalties. thout calling it a marriage, the new law grants the same rights, protections, and privileges which a couple entering into a valid Nevada marriage enjoy. Additionally, couples who have entered into a valid domestic partnership in other states will have their partnership recognized as valid in Nevada as well. For example, if the member was married to the former spouse for 15 out of 20 years of total service, and he married the later spouse a year after the divorce from the former spouse, then the equities would seem to clearly favor the former spouse, who would have a 75% marriage/service overlap, compared to the later spouse’s 20%. c) lf the minority time-share parent is exercising more time than 40%. determine what child support would be calculated as being if the parents had exactly equal custody. under the Wright/Wesley offset methodology. The range of potential downward deviation for this factor is the difference between guideline support and support calculated under the Wright/Wesley offset methodology. B> The so-called "ten year" limitation is much misunderstood. A court order that divides military retired pay as property may only be directly paid from the military pay center to the former spouse if the parties were married for at least 10 years during which the member performed at least 10 years of creditable military service.1This is often called the "20/10/10" rule, for "years of service needed to reach retirement/years of marriage of the parties/years of overlap between service and marriage." The Commission believed that child support should ensure that children benefit from the same proportion of parental income in a divided household as they have in an intact family. This philosophy was not entirely embodied in the Nevada child support statute enacted in 1987, which contains elements of both income sharing and needs satisfaction approaches to child support. One commentator suggested that States were unwilling to enact guidelines that would actually ensure maintenance ofchildren's standard of living, because it would be impossible to raise the standard of living tor a child without also raising that of the child's primary custodian, and there was reluctance to adopt any standard that appeared to award "hidden alimony." theoretical model presumes a contribution from the custodial parent, and calculates a contribution from the non-custodian as a percentage of income to support the child in the primary household. The Nevada (Wisconsin) approach is a minority position -the bulk of States use some variation of the "income shares" model, in which both parents' incomes are explicitly used in the child support calculation formula.' The decree confirmed a property settlement agreement which provided that the agreement was not incorporated in the decree but that it would survive. Eight years later, the husband filed a complaint to reform the agreement. The district court declined to rule on the merits and instead ruled that it lacked jurisdiction to modify the agreement. The Supreme Court held that because the property settlement agreement was neither merged nor incorporated into the decree, the action should have been decided in accordance with contract law principles citing to Renshaw v. Renshaw, 96 Nev. 541, 611 P.2d 1070 (1980). The Supreme Court found these grounds adequate "compelling reasons" for an unequal property distribution. The Court entered into a discussion of possible types of compelling reasons, financial misconduct in the form of one party’s wasting or secreting assets during the divorce process, negligent loss or destruction of community property, unauthorized gifts of community property and possibly, compensation for losses occasioned by marriage and its breakup. The Court distinguished hiding or secreting assets during divorce proceedings, on the one hand, from "undercontributing to or overconsuming of community assets during the marriage" on the other. After Congress enacted the USFSPA, the member returned to court seeking to modify the judgment to exclude the disability portion of the retired pay from division with his ex-spouse.2 The State court denied his request, holding the division of the disability portion of the military retired pay was proper. The member appealed. Nothing in this section shall be construed to relieve a member of liability for the payment of alimony, child support, or other payments required by a court order on the grounds that payments made out of disposable retired pay under this section have been made in the maximum amount permitted under paragraph (I) or subparagraph (B) of paragraph (4). Any such unsatisfied obligation of a member may be enforced by any means available under law other than the means provided under this section in any case in which the maximum amount permitted under paragraph (I) has been paid and under section 459 of the Social Security Act (42 U.S.C. 659) in any case in which the maximum amount permitted under subparagraph (B) of paragraph (4) has been paid. In 1977, the Court held that the "nature and purpose" of an award of lump sum alimony remains the same, whether it is payable immediately in full, or periodically in installments. Kishner v. Kishner, 93 Nev. 220, 562 P.2d 493 (1977). In other words, lump-sum alimony need not actually be paid in "lump sum" - whether it is ordered paid immediately in full or periodically in installments, it is not subject to automatic termination upon death or remarriage, since the purpose of such an award is to "fully and finally fix the rights and obligations of the parties with respect to future support." BACKGROUND: One of the most important parts of any military retirement benefits ("MRB") case is the Survivor’s Benefit Plan ("SBP") benefit - the only way of providing a continuing stream of payments to the former spouse if the military member should die first. The usual questions are whether the spouse should receive the survivor’s benefit and, if so, how much the benefit should be, and who should pay for it, any variation of which can be negotiated, or ordered. bsp; (c) whether the custodial parent is willing to comply with any substitute visitation orders issued by the court in the event that permission to move is granted; For example, in a post-retirement case, the parties would have already completed the transformation of the career asset into assets and investments - large or small. If those assets and investments are equally divided, no alimony award would appear proper, . since the parties would have precisely equal resources for self-support. There was significant confusion in prior years; eventually, the Tax Court ruled that a community property share of the retirement to the former spouse, whether received from the government or the member, was income to the former spouse.2 This was consistent with the position evolved within the IRS that classified payments of military retirement benefits as not qualifying under section 1041.3 B> [ALT] 2. The benefit to be payable to the Alternate Payee shall be calculated by means of a formula as follows: All service credits accrued by Member from [STARTING DATE] through and including [ENDING DATE] as the numerator, and all service credits accrued as the denominator, multiplied by one-half. Any withdrawals from the retirement system shall be divided between the Member and the Alternate Payee in accordance with the same formula. Both the drafting and the mathematical problems can be solved, but at a cost. The order can provide that upon actual retirement, and the resetting of the spousal share as a percentage of what the member actually receives, the spouse simply shares in the COLA increases provided to the member. This makes drafting muchsimpler, and greatly reduces the odds of further conflict between the parties, but at the cost of producing a result at variance from the logical implications of the case law. The essential lesson of this jurisdictional point (for the spouse) is to never take a default divorce against an out-of-State military member if seeking to divide the retirement benefits. The resulting judgment will not be enforceable; if valid jurisdiction under both State and federal law cannot be achieved, then the action may have to be dismissed and re-filed in the State in which the military member resides. A deviation because of extraordinary visitation can lead to the interesting result that the custodial parent must pay the non-custodial parent support. This occurred in Little v. Little, 441 Pa. Super. 176,657 A.2d 12 (1995). In that case, after a modification of custodY proceeding, the father was awarded custody of the parties' two children and the father's obligation to pay child support was vacated. The mother later requested modification of the support order, requesting that the custodial father pay her support for the time she exercised her visitation. The trial court denied the request, but the superior court reversed, holding that visitation with the mother was so extensive, it should be more properly labeled "shared custody." Given the extensive amount of time the children are in the custodY of the mother, the mother's limited income versus the father's $20,000 per month income, an award of support to the non-custodial parent was proper. Accord Clarke v. Clarke, 619 So. 2d 1046 (Fla. Dist. ct. App. 1993) (although mother was non-custodial parent, visitation was so substantial that it was like shared custoov: given disparities in income, mother properly received support); LeBlanc v. LeBlanc, 597 A.2d 62 (Me. 1991) (where mother and father shared parental rights, mother had child more than 30% of time, even though father was designated as primary residential care provider, father was properly ordered to pay support to mother); Matz v. Matz, 166 Wis. 2d 326, 479 N.w.2d 245 (Cl. App. 1991) (in joint legal custody situation, there is no rule that parent with primary physical placement cannot be ordered to pay support to the non-primary parent). See also Sillis v. Hernandez, 608 So. 2d 289 (La. Ct. App. 1992) (mother had right to receive support from father during three summer months father was domiciliary parent in absence of judgment stating support would cease for those months); Leone v. Leone, 917 S.W.2d 608 (Mo. Ct. App. 1996) (mother gets support during school year, father gets support during summer months). Despite this, a number of Nevada attorneys have attempted to manipulate matters by having their clients flee the State after registration of a child support order and filing of a modification motion here, and have actually gone into court claiming that the post-commencement relocation of their clients has an effect on the jurisdiction of the court. Mystifyingly, at least a couple of judges in this State have actually entertained such arguments, and resolved the question of jurisdiction based on the post-commencement relocation of the party resisting the support modification. SPAN> Petersen v. Petersen, 105 Nev. 133, 771 P.2d 159 (1989)The wife requested a divorce. The husband, an attorney experienced in handling divorce cases, drew up divorce papers and the property settlement agreement. The divorce was granted by the district court three days after the wife asked for a divorce. The wife was never represented. The wife figured out approximately 90 days after the divorce that she had received about 10 percent of the parties’ property, but her motion to set it aside was not filed until the day before the six months would have elapsed. The district court denied the wife’s motion solely on the ground that even though it was filed within one day of the six month deadline, it was not filed within a "reasonable time" as required. The Supreme Court rejected the district court’s conclusion that the motion was untimely, and held that when such a motion is filed at any time within the six months allowed by NRCP 60(b), alleging fraud or mutual mistake, and seeks for the first time to address the fairness of the decree of divorce, the motion should be considered on its merits (i.e., the fairness of the distribution of property should be explicitly examined by the reviewing court). The Supreme Court reversed. The Court noted that at common law there was no right to seek an amendment of a decree regarding alimony. A decree a vinculo is final, and the jurisdiction of the court over the parties is after the expiration of the term at an end and just as there can be no grant of alimony after such a divorce, so there can be no change in the award of alimony, unless the right to make such a change is reserved by the court in its decree, as it may be, or is given by statute. The Court held that judgment entered with the decree is not a charge against the estate. The California cases made it clear that a spouse has to make an "irrevocable election" whether begin receiving the spousal share of the retirement benefits upon maturity, or to wait until the wage-earner actually retires, thus enjoying a "smaller piece of a larger pie" by getting a shrinking percentage of a retirement based upon post-divorce increases in the wage-earner’s salary and years in service. Walsh v. Walsh, 103 Nev. 287, 738 P.2d 117 (1987) When the parties were divorced in 1980, the wife’s attorney drafted the decree which the district court adopted. The husband was in proper person. The decree granted to the wife "one-half of [James’] pension with the United States Government." Five years later, the husband retired. The wife then claimed she was entitled to receive one-half of the entire pension, including that portion earned during the five-year period after the divorce. The husband filed a motion to clarify the parties’ rights. The district court concluded that the decree unambiguously granted the wife one-half of the entire pension, including that portion earned after the divorce. The district court also concluded that it lacked jurisdiction to modify the decree because six months had passed since its entry. The Supreme Court reversed. The Court began by noting that only retirement benefits earned during the marriage were community property citing to Forrest v. Forrest, 99 Nev. 602, 607, 668 P.2d 275, 279 (1983). The Court concluded that the husband was entitled to retain as his sole and separate property benefits earned after the divorce. The Court held that in the absence of express language specifying otherwise, it was unwilling to conclude that the phrase "one-half of [James’] pension with the United States Government" unambiguously entitled the wife to one-half of that portion of the pension earned after the divorce. The Court noted that decree showed a contrary intent because the decree stated that the district court retained jurisdiction. The Court concluded that the decree was unambiguous and could be interpreted based on the language in the decree itself, without resort to extraneous evidence. Neither Truax nor Mosley defines the term "joint physical custody," nor do they provide clear, cogent, and unambiguous analysis or discussion of the meaning of the terms at issue here. From anecdotal evidence, and the reported cases, it happens all the time. The lure for the retired member is huge; not only does he change every affected dollar from taxable retired pay to a dollar of tax-free VA disability pay, but the former spouse effectively contributes 1) When the children spend 40% or more of their time during the year with the obligor, a rebuttable presumption arises that the obligor is entitled to a reduction in the basic support obligation to reflect this time. Except as provided in subsections (2) and (3) below, the reduction shall be calculated pursuant to the formula set forth in Part II of subdivision (a) of this rule. For purposes of this provision, the time spent with the children shall be determined by the number of overnights they spend during the year with the obligor. The Supreme Court reversed. The Court noted that accepting the husband’s contention that the properties were purchased with community funds or a community obligation was "insufficient to rebut the presumption created by the form of the deed[s]," citing to Peters v. Peters, 92 Nev. 687, 691, 557 P.2d 713, 715 (1976). B> In a nutshell, when a military 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. This can happen long after the divorce. Most reviewing courts have either found or simply assumed that Mansell is applicable in litigation concerning post-divorce recharacterizations by retirees, and attempted to apply it to resolve the cases before them. Nevertheless, those appellate courts have almost uniformly reached the same ultimate destination as the court in Krempin, by means of a longer analysis. 4) If a prima facie case is made for deviation in either direction, determine whether the benefit that would be enjoyed by the deviation-seeking party and the child is greater, lesser, or the same as the detriment that would be suffered by the other party and the child. Only where the benefit is greater than the detriment - usually measured by comparison of household income - would the deviation be granted. By way of contrast, the May court defined "personal goodwill" as that which depends on the continued presence of a particular individual, holding that any value that attaches to a business as a result of such "personal goodwill" represents nothing more than the future earning capacity of the individual and is therefore not divisible. The district court held that the social security benefits received could be applied to pay child support arrears and that the mother had already received more than the obligation owed by the father, and that to allow collection of the arrears under these circumstances would constitute an inequitable "double enrichment." The district court terminated the father’s obligation for so long as the mother continued to receive social security disability benefits for the child in excess of what the father owed. This thoroughly international case involved a British father and American mother who married in England and had a son born in Hawaii before moving to Chile, where they divorced. The Chilean divorce court awarded the mother primary custody (termed "daily care and control") and provided the father with "direct and regular" visitation rights, every other weekend, and for a month each February. You can find The Marren and Page Case List Truax v Truax Whether the Left Behind Parent was Actually Exercising Rights of Custody Making the Bad Guys Pay How to Make the Left behind Parent and Counsel Whol Garner fraud on the court client need not sign order The Marren and Page Case List Champagne v Welfare Divorce Geeson v Barnes I The Marren and Page Case List McGlone v McGlone Hesse v Andurst Litz v Benn Use and Abuse of Court Minutes Rivero v Rivero Section VI A Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar How to Allocate the SBP Premium Cost-Shifting Partition Actions The Concept of Divisible Divorce Las Vegas divorce lawyer Las Vegas family law jurisdiction Divison of Military Retirement Benefits In Divorce Section V Subsection B Hague Convention Basics The Marren and Page Case List Truax v Truax available at lvfamilylawyer.com by clicking above. Site Map Reciprocal Links: The Marren and Page Case List Truax v Truax The Marren and Page Case List Truax v Truax The Marren and Page Case List Truax v Truax The Marren and Page Case List Truax v Truax The Marren and Page Case List Truax v Truax The Marren and Page Case List Truax v Truax The Marren and Page Case List Truax v Truax The Marren and Page Case List Truax v Truax The Marren and Page Case List Truax v Truax The Marren and Page Case List Truax v Truax web search engine optimization |
|
|