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Present Value A Bird in the Hand
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Trading the Present Value of the Retirement BenefitThe Supreme Court affirmed. The Court noted that the cattle were purchased less than two months after the deposit in the bank of the $31,000 the husband inherited. The Court also noted that community funds were exhausted when the inheritance was deposited and community funds deposited to the joint bank account in the same period were for the most part earmarked for specific purposes and were disbursed for such specific purposes. The Court concluded that there was ample evidence to support the district court’s finding of separate title. The parties divorced in California in 1986. The mother was given primary physical custody of their three children and the father was ordered to pay child support. The father later moved to Nevada while mother remained in California. The father fell into arrears in his child support obligation and mother instituted a URESA action in the Second Judicial District Court to recover arrears. While this was occurring, the father had his child support order reduced in California and the parties stipulated his arrears were $6,050. the father paid off the arrears in two years. In exchange for release of mother’s lien against him, husband agreed to stipulate to a Washoe County District Court that he would continue to pay child support of $375 per month. Three months later the Washoe County District Attorney’s Office registered mother’s child support order in Nevada per NRS 130.320 and immediately thereafter requested the court to increase the child support order. The URESA master recommended the father’s child support be increased pursuant to the Nevada Child Support Formula (29%) which would have increased the father’s child support obligation from $375 per month to $900 per month. The Supreme Court held that it was error for the district court not to provide any basis for its calculation of child support and error not to set forth findings of fact to justify a deviation from the statutory amount. Any deviation must be based upon NRS 125B.080. The property in question was Lucini & Associates, a closely held subchapter "S" corporation. When the parties were married in 1966, the husband was president and majority stockholder of the company. During the marriage, the husband, together with the other stockholders and employees, were paid salaries. All excess capital was dispersed annually. Also, during the marriage, the husband decreased his ownership in the company from 51 percent to 30.08 percent. The district court determined that the husband received full value in salary, profit distributions and fringe benefits, and that there was no community interest. The Court noted that it had previously adopted the Pereira and Van Camp methods of apportionment. The Court acknowledged that in Cord v. Neuhoff, 94 Nev. 21, 26, 573 P.2d 1170, 1173 (1978), it held that the preferred method was that suggested in Pereira "unless the owner of the separate estate could establish that a different allocation was more likely to accomplish justice." The Court also acknowledged that in Wells v. Bank of Nevada, 90 Nev. at 195, 522 P.2d at 1017, that it held apportionment pursuant to the Van Camp method was proper to achieve substantial justice, when "the community was fully compensated for the . . . community labor through [the husband’s] annual salary and related benefits." Id. at 214-15. The Court held the district court did not abuse its discretion is using the Van Camp method of apportionment as the record supported the court finding that community was compensated through the husband’s annual salary and benefits. One thing that comes to mind as a reasonable explanation is that those who are preparing the bench memos, analyses, and proposed opinions for the Court are just unaware of the real world impacts of their suggested resolutions. Since there are no Justices now on the Court with a recent substantive familiarity with our area of the law, the Court is presumably leaning heavily on its "family law" Central Staff for direction. The U.S. Supreme Court majority reversed, holding that the USFSPA did not constitute a total repudiation of the pre-emption it had declared in McCarty. Since the statute defined "disposable pay" as what was divisible, and excluded disability pay from that definition, the Court concluded that state courts could divide only non-disability military retired pay.1 The dissent echoed the conclusions reached earlier by the California Supreme Court in Casas v. Thompson - that the gross sum of retirement benefits was available to the state divorce court for division.2 The parents were subject to a joint physical custody order. The referee found that the best interests of the children would be served by vesting the mother with primary custody. The referee agreed with the testimony and recommendations of the CASA; the joint custody order was working to the detriment of the children, and there was evidence that the son was being mistreated while at the father’s home. The district court adopted the referee’s findings. The father appealed, claiming the referee applied the wrong legal standard when considering a modification of joint custody. The Supreme Court affirmed. The Court noted that the cattle were purchased less than two months after the deposit in the bank of the $31,000 the husband inherited. The Court also noted that community funds were exhausted when the inheritance was deposited and community funds deposited to the joint bank account in the same period were for the most part earmarked for specific purposes and were disbursed for such specific purposes. The Court concluded that there was ample evidence to support the district court’s finding of separate title. At a subsequent hearing, the district court granted Mr. Rivero's motion for attorney fees, noting that Ms. Rivero's disqualification motion was without merit. 3) If the parenting time is equal, the expenses for the children are equally shared and the adjusted gross incomes of the parents also are equal, no support shall be paid. The disconnect, and this discussion, is fully applicable to the military context, where (as discussed below) practitioners now are required to deal not only with the standard military retirement (a defined benefit plan), but also with the Thrift Savings Plan (a defined contribution plan). When the parties divorce while the member is still on active duty, however, they do so prior to the time of making an election regarding the SBP. If the matter remains unaddressed at divorce - by the machinations of the member-spouse, or innocently,8 the now-former spouse does not have the waiver right of a current spouse. It is therefore possible for the member to cancel the SBP entirely, or to name some third party (usually, a later-acquired spouse) as beneficiary. e Willick Law Group has drafted QDROs, COAPS, and military retirement benefit division orders for our own clients for decades. Over the last 10 years, we have also reviewed hundreds of QDROs drafted by other attorneys, accountants, or actuaries. We’ve discovered that a large number of retirement division orders contain mistakes of math, law, or process, preventing the intended beneficiary from actually receiving some or all lifetime or survivorship benefits. Even a small math error making a lifetime stream of payments bigger or smaller than it should be can add up to a huge monetary loss for a client. The materials then turn to survivorship benefits, easily the most complex, difficult, and pitfall-laden area in dealing with retirement benefits, and some of the things that practitioners can do, and keep in mind, to serve their clients, and reduce their risks of error. Finally, the materials recap the recently-changed world of military disability benefits, with its new acronyms, possibilities, and dangers, and the recent changes to the Servicemembers’ Civil Relief Act, and its effect on custody and visitation cases. The district court found that at the time of marriage, the wife did not have any property. The husband had substantial property. The Supreme Court held that all property acquired during marriage is community property and property acquired prior to marriage is separate property. Enforceable orders include "a judgment, decree or order relating to child support, alimony or the disposition of community property" and extends to "all or a portion of the allowance or benefit of a member or retired employee."4 An order will be enforced if it satisfies five requirements: UP> The Office of Personnel Management ("OPM") Handbook for Attorneys includes a model paragraph entitled "Protecting a former spouse entitled to military retired pay" (paragraph 111). It reads: 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. A special insurance program is available for former military spouses married at least one year, but the terms and restrictions vary according to the same three factors.2 In an appropriate case, deferring the divorce could prove to be in the parties’ mutual best interest (for example, where the spouse has to have a major medical procedure, covered under military insurance, but not otherwise, and there is no other insurance available post-divorce). A "career asset" focus of alimony analysis creates a dynamic, not static, factor, which dissipates over time as ability, effort, and education/training are converted into assets, and potential income is transformed into realized income. The career asset declines in value with age and reaches zero upon bona fide retirement. There are ramifications of such an analysis on modification motions, but they are beyond the scope of this article. There has never been a case, apparently, in which a court has ordered a bond to secure payment of a spousal share ordered not paid at eligibility, in accordance with NRS 125.155(2)(a). It is difficult to conceive how such an order might work, as such a bond would require a dollar sum certain to secure an unknown future performance to begin on an unknown future date. When the divorce occurs near the fifteen-year mark of the military career, there is a new danger for spouses of military members who started service after July 31, 1986. There is no provision for spousal consent, or even notification, before a member can take the $30,000 CSB/REDUX payment, which irrevocably reduces the lifetime "regular" retirement benefits payout. Especially where the parties have already separated, it is possible that the member could simply pocket the cash payment and the spouse would never even know of the devaluation of the retirement benefits being divided in the divorce. SPAN> Members who entered service before September 8, 1980, have retired pay equal to terminal basic pay times a multiplier. The multiplier is equal to 2.5 percent times years of service, but is limited to 75 percent. Thus, retired pay equals 50 percent of terminal basic pay after 20 years of service. The 1970s saw the law of property division throughout the country evolve toward "equitable distribution," which increasingly resembled a community property scheme in which divorce courts were to ascertain, and divide, the property acquired by both parties during the marriage. The national legal community developed a consciousness of the importance of retirement benefits, resulting in a larger number of military retirements being considered directly or indirectly - in property settlements and divorce decrees. Still, there was no enforcement mechanism, and in 1980 the treatment of military retirement benefits still varied widely. One recurrent question, however, is the preclusive effect, if any, of the various custodial and other orders entered by courts, often in different countries, and the factual findings embodied in those decisions. For example, what would a court hearing a tort suit do with custody orders from two countries, each of which found that the parent in the other country had acted wrongfully? P> Perhaps the simplest way of determining the meaning of the initial jurisdiction rule is to see what the drafters were trying to accomplish. As documented in an extensive study by the American Bar Association¡¯s Center on Children and the Law,2 inconsistency of interpretation of the UCCJA3 and the technicalities of applying the PKPA, resulted in a loss of uniformity among the States. The Obstacles Study suggested a number of amendments which would eliminate the inconsistent state interpretations and harmonize the UCCJA with the PKPA. You can find Present Value A Bird in the Hand Family Law and Contingency Fees Time to Reconsider The Marren and Page Case List Mullikin v Jones Neumann v McMillan Waldman v The Marren and Page Case List Sly v Sly and York v York Love me Love My Dog Division of Just Community Property or Other Property Considered Penalty Calculations Analysis of Hypothetical Fact Pattern Family Court The Marren and Page Case List Engebretson v Engebretson Hybarger v Hybarger Public Employees Retirement System PERS Benefits Rivero State Bar Amicus Brief A Trip Down Memory Lane Less is More and More is Less More or Less An Introduction to Pensions in Nevada Divorce Law Section I Subsection A Exhibits on Rivero Exhibit Three Section Four Custody Visitation and Temporary Support Issues Present Value A Bird in the Hand available at lvfamilylawyer.com by clicking above. 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