Nevada divorce and family law

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SUP> It was, and Congress reacted by enacting the Uniformed Services Former Spouses Protection Act ("USFSPA") on September 8, 1982.3 The declared goal of the USFSPA at the time of its passage was to "reverse McCarty by returning the retired pay issue to the states."4 By fits and starts, every State in the Union eventually permitted military retirement benefits to be divided as property.5 The bottom line is that having the QDRO done on the date of divorce is best. If that cannot be done, at least make sure the plan knows full well about the divorce, and is copied with the orders granting the former spouse an interest in the benefits while the QDRO is pursued. Comparing the range of possible benefits for spouses, the military system is the most restrictive and limited of all federal and private retirement systems. For example, it is not possible to (in ERISA terms) create a "separate interest" retirement for the spouse (only the benefit stream can be divided), and payments to the spouse are limited to 50% of"disposable pay" (discussed in more detail below). UP> 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.1 The member’s spouse must be notified of any attempt by a member to not designate a spousal SBP interest,2 and 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.3 65279;Even where disability payments are considered "exempt," the U.S. Supreme Court has ruled that a member can be imprisoned on a contempt charge for failing to pay child support, despite his claim that payments could be made only from his VA disability award, which was exempt from execution. The holding has been extended to alimony cases as well, on the basis of the holding in Rose that: "It is clear veteran's benefits are not solely for the benefit of the veteran, but for his family as well." UP> The arrangement can be set up at the time of divorce. In Waltz v. Waltz,1 the Nevada Supreme Court approved a decree which awarded the entire military retirement to the retiree, but ordered him to pay the former spouse, by military allotment, $200 plus cost of living adjustments on that sum, as "permanent alimony." The military service had overlapped the parties’ marriage by just less than ten years, precluding direct payment of a property award through the military pay center, and the appellate court found that in the context of the case, the parties’ use of phrase "permanent alimony," in conjunction with the COLA clause, showed an intent to link it to the military retired pay. Further, the court held that payments to a former spouse do not terminate upon her remarriage when the payments were clearly intended to achieve a property settlement. The question of "wrongful removal" asks whether one parent’s act of removing or retaining the child is in breach of the other parent’s rights of custody under the law of the State of the child’s habitual residence. For example, presume the member-spouse is the defendant, served in Nevada, but he expressly refuses consent to the court's jurisdiction, claims that his presence in Nevada is solely by reason of assignment, and that his State of residence and domicile are elsewhere, say in Florida. The spouse could then file a parallel action in Florida, and serve that action on the member, with the claimed intention of letting the two jurisdictions figure out which action should proceed. It would be an error to directly compare post-Mansell cases with those concerning divorce decrees issued prior to Mansell. Courts that have reviewed decrees issued after 1989 have often held the language used in the decree to a higher standard of clarity. This is reasonable, since after Mansell it would be at least theoretically possible for a divorce court to anticipate the question, and issue an order specifically intending to permit or forbid a post-divorce recharacterization of retirement benefits into disability benefits. Worse, the face of the opinion makes clear that the last time the parties had any unified intention, it was that the children lived in Japan and were only visiting the U.S. The mother simply changed her mind after coming here. If anything, those facts indicate that the "temporary absence" was from Japan, not from the U.S. (although some fault must fall to the father for not initiating the custody case within six months after the children left Japan). The Supreme Court reversed. The Court concluded while the wife had consulted with an attorney and was given advice concerning the property settlement agreement, that attorney did not represent the wife in the divorce and the wife signed the property settlement agreement in proper person. The Court concluded the attorney husband breached his duty of full and fair disclosure to the wife and that the agreement was fundamentally unfair. The Court noted similarities and differences between this case and Williams v. Waldman, 108 Nev. 466, 836 P.2d 614 (1992), reiterating fiduciary duty of a lawyer-husband who drafts a property settlement agreement, and that all such agreements would be "closely scrutinized" on appeal. Additionally, the lawyer has a duty of full and fair disclosure, and "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 held that the agreement provisions in this case "as a matter of law" showed the husband’s breach of his legal duties. The case was remanded to the district court for a new trial as to property division. LUTION: I finally had a case where the spouse’s time-rule share of the military retirement benefits would be altered in the future, when the member actually retired, in such a way as to split the SBP premium equally. Since several of the components of the formula are unknown at this time, it was necessary to come up with a formula for doing so, rather than just hit-or-missing an actual altered percentage (which I confess had been my means of coping with this problem in prior cases). The Court noted that the house was the home of husband and the wife and their children that the keeping of boarder was incidental. The Court concluded that the lower court was justified in concluding from the evidence that respondent’s indebtedness for board and lodging was community property, which husband had the right, under the statute, to have applied as payment on the note. In some courtrooms, it is a joke among the staff and the bailiff: "Oh, get the ball gag out, Ms. [Attorney] has a hearing today." "Sorry to hear that you have Mr. [Attorney] for an opponent-- that will cost your client and his a lot of extra money." If anyone is doing anything to actually fix the system (getting new panels, amending the rules, altering the required time for automatic submissions, etc.) I have not heard about it. In light of ongoing military actions and the greatly-increased number of deployed active-duty and Guard and Reserve personnel, it is necessary for any practitioner approaching a military divorce case to have at least some familiarity with the Servicemembers Civil Relief Act of 2003 ("SCRA").1 The Variable Separation Incentive (VSI) and Special Separation Benefit (SSB) programs were early-retirement programs offered at times by the military by means of which members could terminate service before completing 20 years, receiving lump-sum or time payments instead of a regular military pension. The military also developed an early (15-19 year) retirement program known as the "Temporary Early Retirement Authority" (TERA).1 PAN style="FONT-FAMILY: Times New Roman; FONT-SIZE: 14pt"> After Mansell, some thought that any disability award existing on the date of divorce simply could not be considered by a divorce court, but this is not entirely true. Military disability pay may be considered as a factor in awarding to the former spouse a disproportionate amount of marital property, or otherwise as a factor relating to the future income, and thus the "economic circumstances" of parties, in property and alimony analyses. In re Kraft, 832 P.2d 871 (Wash. 1992) (citing many other cases); In re Brown, 892 P.2d 572 (Mont. 1995). Courts have enforced parties’ agreements to divide pay attributable to known disabilities. Hisgen v. Hisgen, 554 N.W.2d 494 (S.D. 1996). The husband failed to abide by the terms of a separation agreement. The wife sued on the agreement and prevailed. The wife requested that she receive her costs. The district court denied her request. In every system like PERS - in which the payments (but not the retirement itself) can be divided - the structure of the plan determines what happens to the former spouse’s portion of the payment stream if the spouse dies first. As detailed above, the payments revert to the employee, and at issue here is whether PERS should either directly pay the sums ordered as belonging to the spouse to the spouse’s estate, or at least stop rejecting orders requiring the member to make those payments to the spouse’s estate once the spousal share reverts to him through the system. 484, 658 A2d 736 (1995) (father who had custody 39% of time was entitled to credit on support where such custody had an impact on the father's expenses, in that he was responsible for child care); Mocnik v. Mocnik, 838 P.2d 500 (Okla. 1992) (reduction in support allowed due to extensive visitation in summer months). Cf. Garrod v. Garrod, 590 N.E.2d 163 (Ind. Cl. App. 1992) (no deviation in guidelines although custody approached 40%, where trial court did not find economic impact on noncustodial parent); In re Marriage of Toedter, 473 N.W.2d 233 (Iowa Cl. App. 1991) (support not reduced during periods of visitation where there was no evidence the custodial parent had reduced expenses); Bronstein v. Bronstein, 203 AD.2d 703, 610 N.Y.S.2d 638 (1994) (extra visitation exercised by father did not warrant deviation where there was no evidence of the financial impact such visitation had on the custodial parent); Martin v. Martin, 66 Ohio St. 3d 110, 609 N.E.2d 537 (1993) (the adoption of a joint parenting plan does not, in and of itself, mandate deviation from the guidelines); Anzalone v. Anzalone, 449 Pa. Super. 201,673 A2d 377 (1996) (where father had 40% custody, deviation in amount of 50% was not appropriate; father may "extra" expenses claimed father would have paid for anyway); Baumgartner v. Moore, 14 Va. App. 696, 419 S.E.2d 291 (1992) (deviation not warranted where noncustodial parent was unable to show that expenses were greater than those contemplated by legislature in guidelines). See also Annotation, Right to Credit on Accrued Support Payments for Time Child is in Father's Custody or for Other Voluntary Expenditures, 47 AL.R.3d 1031 (1973). The court nevertheless found no difficulty in turning aside the military member’s attack on the Arizona rule of finality of property distributions, finding the spouse’s rights to the benefits upon divorce just as "vested" as those of the member.2 The court waded through just about all the kinds of claims made by member’s attempting to redirect to themselves funds already awarded to their former spouses - the "indirect violation" or "spirit of" Mansell argument, exemption from community property law by reason of application for a federally-paid disability argument, and the allegation that protecting the spouse would circumvent "Congressional intent" or violate the Supremacy Clause. The court was unimpressed on all counts.3 In the case now before the Court, the trial court apparently identified the equal protection problem,2 but could only think of increasing the alimony award to deal with it. On the other hand, such a distribution increases the possibility of later court fights over enforcement or interpretation of the original order for division.35 It gives each of the parties a stake in the other’s life - if the former spouse predeceases the member, the member’s retired pay goes up by whatever sum the former spouse had been receiving, and if the member dies first, the spousal share stops unless survivor’s benefits have been provided for in the order. SUP> In 1989, the United States Supreme Court accepted a divorce case out of California, and issued a decision in Mansell v. Mansell.8 The basic holding of the case was to declare that military disability awards were not divisible community property. PAN style="FONT-FAMILY: TimesNewRoman"> Whether a survivorship interest for the non-employee spouse is in place - and who pays for it - has a major impact on the net benefits flowing to each of the parties to a divorce involving any form of retirement benefit. 65279;The Supreme Court reversed. The Court held that an appeal does not abate when permanent or lump sum alimony is involved. The Court noted that it would not a district court's grant or denial of permanent or lump sum alimony absent an abuse of discretion, citing to Fenkell v. Fenkell, 86 Nev. 397, 402, 469 P.2d 701,704 (1970). The Court further noted that under NRS 125.150(4) provided that the court may set apart a portion of the husband's property for the wife's support as is deemed just and equitable, which allows a lump sum award, citing to Sargeant v. Sargeant, 88 Nev. 223, 229, 495 P.2d 618, 622 (1972). The Court then looked at the factors in the case. At the time of the divorce, the husband was in poor health and had a much shorter life expectancy. Because of his substantial wealth, an award of permanent or lump sum alimony would not have substantially depleted his assets. The wife had few assets or hopes of employing herself. The husband's death would have left her with essentially no means of support, while she likely had many more years to live. The Court found that an award of alimony to extend beyond the husband's death would, under the circumstances of the case, have been just and equitable. The Court held that the district court abused its discretion in not awarding permanent or lump sum alimony. The Nevada statutes governing separate maintenance go beyond the classic definition of "separate maintenance," framed as "Money paid by one married person to another for support if they are no longer living as husband and wife."4 The statutes encompass much of the possible scope of the typical definition of "legal separation": "An arrangement whereby a husband and wife live apart from each other while remaining married, either by mutual consent or by judicial decree."5 forward written documents to a member (some States permit written service in this matter of certain pre- or post-divorce pleadings, notices, or other documents). SUP> Several commentators and researchers have reviewed the cases nationally, reaching the conclusion that post-divorce recharacterization of retired pay as disability benefits just is not permitted.16 Even if Mansell does have to be considered in post-divorce recharacterization cases, courts have pretty uniformly 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. Specifically, the majority time rule approach comes closest to providing equity to successive spouses. Two consecutive spouses, during the first and last halves of a member’s career, would be treated equally under the qualitative approach, but very differently under any approach that freezes the spousal share at the level of compensation being received by the member at the time of divorce. SUP> It was, and Congress reacted by enacting the Uniformed Services Former Spouses Protection Act ("USFSPA") on September 8, 1982.3 The declared goal of the USFSPA at the time of its passage was to "reverse McCarty by returning the retired pay issue to the states."4 By fits and starts, every State in the Union eventually permitted military retirement benefits to be divided as property.5 There are a couple of work-arounds for this trap, however. If the former spouse’s interest is small, the present value of that interest could be determined and offset against other marital property or cash to be paid off. If the interest is larger, the situation is more difficult, since most parties lack sufficient assets to permit such an offset.4 The options available to a former spouse’s attorney seeking an enforceable order are then reduced to attempting to persuade the court to impose an irrevocable alimony obligation or seeking a stipulation to secure that interest. Both options have drawbacks. B> An issue frequently addressed by the courts in divorce cases involves the transfer of property owned by a spouse prior to marriage into joint tenancy during the marriage, or the purchase of property held in joint tenancy with separate property funds. A long line of Nevada cases establishes that separate property placed into joint tenancy is presumed to be a gift of a half interest to the other party, unless the presumption is overcome by clear and convincing evidence.1 SPAN> The Nevada Supreme Court has held that a failure of subject matter jurisdiction "cannot be waived," that even when a party does not raise the question, the court is to do so sua sponte, and that the question can be raised for the first time on appeal.4 The simplest is to send a freshly (within 90 days) certified copy of the order requiring payment by the retired member of child support, alimony, or a property award (including any order to pay lump sum property equalization, or awards such as attorney’s fees, but ironically not including orders for payment of arrearages in military retired pay itself), to DFAS, along with the appropriate application form.1 The Supreme Court noted that it would not reverse sanctions issued where the lower court had authority to impose them, citing to Young v. Johnny Ribeiro Bldg., 106 Nev. 88, 92, 787 P.2d 777, 779 (1990) and NRCP 37(b). The Court noted that dismissal with prejudice caused the Court to apply "a somewhat heightened standard of review" on appeal. However, the Court affirmed that it would uphold default where "the normal adversary process has been halted due to an unresponsive party, because diligent parties are entitled to be protected against interminable delay and uncertainty as to their legal rights," Id. at 865, citing to Skeen v. Valley Bank of Nevada, 89 Nev. 301, 303, 511 P.2d 1053, 1054 (1973).

You can find Nevada divorce and family law New Uniform Child Abduction Prevention Act UCAPA Model Decree of Divorce Clauses Dividing MRB Las Vegas divorce lawyer Divison of Military Retirement Benefits In Divorce Section IX Subsection A Las Vegas divorce family law expert The Marren and Page Case List Cord v Neuhoff QDRO and retirement order Checkup Service is now available The Marren and Page Case List Barbash v Barbash Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar divorce lawyer Ely Motion to File Errata on Rivero Rivero State Bar Amicus Brief Part Two A Judicial or Administrative Decision Agreement of Having Legal Effect Kennedy v Plan Administrator for Dupont Savings and Investment Plan The Marren and Page Case List Lindsay v Lindsay Murphy v Murphy Rivero State Bar Amicus Brief CONCLUSION Court Ordered Divisions of the TSP Survivorship Benefits for the TSP The Marren and Page Case List Barrett v Franke Sly v Sly and Robison v Robi Rivero v Rivero Opinion Nevada divorce and family law available at lvfamilylawyer.com by clicking above.

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