Divorcing the Military and Serving the Civil Service Section II Subsection

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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. 11 Of course, Nevada principles of family law will govern all cases, regardless of the origins of any concept or definition borrowed from the statutory or case law of a sister jurisdiction. It might save some litigation, and perhaps prevent another appeal, for this Court to specify that Nevada statutory and case law is controlling, and the law of States from which terms are borrowed are persuasive authority only. 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. SUP> This view of the time rule essentially provides to the former spouse a "smaller slice 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.3 It is worth pausing to note that the various different retirement schemes, public and private, have a dizzying array of survivorship vehicles, which range from going into effect automatically unless specific steps are timely taken to prevent it,4 to being lost forever by silence unless very specific steps are timely taken to preserve them.5 Additionally, as of October 8, 2001, military members were authorized to begin participating in the same Thrift Savings Plan ("TSP") that has been in effect for civil service employees since 1987,10 but the military chose to call its accounts "UNISERV" accounts. That may have just changed, at least in certain circumstances. In In re Estate of Miller, 125 Nev. ___, ___ P.3d ___ (Nev. Adv. Opn. 42, Sept. 24, 2009), the Nevada Supreme Court directed the district court to "award reasonable . . . fees incurred at the district court and appellate levels both on this appeal and the prior appeal." Oklahoma X The article written by Ms. Decaria includes hypothetical scenarios demonstrating an intractable flaw in the original "Rivero Formula."23 Consideration of statutory deviation factors prior to application of the statutory cap has the effect of negating upward deviations when child support is reduced by the presumptive maximum. Although Ms. Decaria’s article was not intended to address all of the perceived detriments of the "Rivero Formula" as set out in the original Opinion, the authors of this Brief agree with her analysis. We concur that this Court should unequivocallywithdraw the original "Rivero Formula," because it could, and would, cause more problems than it would resolve. e. Non-Exercise of Parenting Time Adjustment: The court may make an adjustment based on the historical non-exercise of parenting time as set forth in the parenting plan. The amount allowed should be entered on line E.2 of the child support worksheet. Arizona terminates community property accruals, for the most part, on the date of filing and service of a petition for divorce.1 There, on the same facts, the math would be 10.5 (years of marriage) ¡Â 20 (years of service) x .5 (spousal share) x $1,000 (pension payment) = $262.50. any privacy or other rights as may be required for SPOUSE to obtain information relating to MEMBER's date of retirement, last unit assignment, final rank, grade, and pay, present or past retired pay, or other such information as may be required to enforce the award made herein, or required to revise this order so as to make it enforceable. SERVICE] and the denominator of which is the total number of months of military service creditable for retirement. SPOUSE shall further receive a identical percentage of any cost ofliving increases in said retired or retainer pay, computed from the gross sum thereof. For the purpose ofinterpreting this Court's intention in making the division set out in this Order, "military retirement" includes retired pay paid or to which MEMBER would be entitled for longevity of active duty and/or reserve component military service and all payments paid or payable under the provisions of Chapter 38 or Chapter 61 of Title 10 of the United States Code, before any statutory, regulatory, or elective deductions are applied (except for deductions because of an election to provide a survivor benefit annuity to SPOUSE). It also includes all amounts ofretired pay MEMBER actually or constructively waives or forfeits in any manner and for any reason or purpose, including but not limited to any waiver made in order to quality for Veterans Administration benefits, or reduction in payor benefits because of other federal employment. It also includes any sum taken by MEMBER in addition to or in lieu of retirement benefits, including but not limited to REDUX lump sum payments, exit bonuses, voluntary separation incentive pay, special separation benefit, or any other form of compensation attributable to separation from military service instead of or in addition to payment of the military retirement benefits normally payable to a retired member. All sums payable to SPOUSE as a portion of military retirement shall be payable from MEMBER's disposable retired or retainer pay to the Additionally, as of October 8, 2001, military members were authorized to begin participating in the same Thrift Savings Plan ("TSP") that has been in effect for civil service employees since 1987,1 but the military chose to call its accounts "UNISERV" accounts. On the other hand, the court held that if a doctor, even a solo practitioner, was willing to leave her name on the practice, even though she herself did not continue to practice, there arguably could be some reputational reliance that she would stand behind the quality of the practice which could have some pecuniary value. About the only tactical advice that can be offered to spouses of members who are overseas is to ensure that any divorce proceeds through the U.S. courts, with the member clearly consenting to litigation in that jurisdiction. If, for whatever reason, that is impossible, it seems that the spouse would be prudent to begin American proceedings simultaneously with any foreign divorce, in whatever State the member had last established residence or domicile, by way of declaratory judgment or partition. While this is non-obvious, and inconvenient, and expensive, it is the closest thing to some assurance of protection of the spousal share that appears to be available under current law. SUP> In performing reviews regarding indemnification intent, most courts have been careful to not give retroactive effect to either the USFSPA, or any case interpreting it (i.e., Mansell) so as to defeat an existing flow of payments to a former spouse. As stated by various courts over the years, it would "thwart the very title of the Act, the ´Uniform Services Former Spouses’ Protection Act,’ to construe the law as preventing a spouse from actually receiving a court ordered portion of military retirement benefits."9 At the very least, the underlying court order (i.e., the decree of divorce) should specify the intended beneficiary, and a copy should be sent to the plan to avoid any later allegation that it was not aware of the existence of the spousal interest. A down side to this method of valuation is that it requires estimating, or flatly guessing, what the future will hold for the parties. It is thus likely that one of the parties will be shortchanged. For example, any estimation of present value takes into account the time value of money, by which a present value is always less than the amount that would otherwise be paid to an individual over a period of time. Expert witnesses frequently disagree strongly about the proper variables to apply, such as the correct interest rate to be used. C) If a spouse or a dep end ent child eligible or en titled to receive a particular benefit under this paragraph is eligible or entitled to receive that benefit under another provision of law, the eligibility or entitlement of that spouse or former spouse or dependent child to such benefit shall be determined under such other provision of law instead of th s paragraph. This is a mistake because any such stipulation or court order is simply unenforceable - a court order compelling beneficiary status cannot be enforced. Under the laws setting up these insurance plans,1 the former spouse cannot be made the owner of the policy, and the insured has complete freedom to designate or re-designate the intended beneficiary of the program. The federal courts, early and forcefully, held that the programs were "the congressional mode of affording a uniform and comprehensive system of life insurance for members and veterans of the armed forces of the United States," and the resulting benefits were therefore immune from State court division or allocation, even when community property was the source of the premiums paying for the policy.2 A host of similar programs have been established, and expired, since 1919. The Supreme Court reversed. The Court concluded that district court incorrectly assumed that support beyond $500 of NRS I 25B.070(2) could only be awarded on showing that needs of a particular child are not met by that sum. The Court quoted from Herz v. Gabler-Herz, 107 Nev. 1l7, 118,808 P.2d I, I (1991), "[there was and is nothing in the applicable statutes to preclude the district court from awarding an additional amount of child support based on some factor other than increased need." The father's income was expressly ruled "relevant" to support; argument to contrary was "completely untenable." The Court concluded that among the factors which the district court must consider when deviating from the formula is "[the relative income of both parents," citing to NRS 125B.080(9)(1). Because of that, the Court held that denying the daughter discovery and a hearing, the district court erred. Sprenger v. Sprenger, 110 Nev. 855, 878 P.2d 284 (1994), as factors for the district court to consider in its determination with the weight being given to each of the factors being left to the discretion of the district court. The Court looked at the factors. The Court noted that the wife had not worked in the design field for 13 years of the marriage, and at the time of the divorce she was working as a secretary. The Court further noted that the wife had been a homemaker and primary caretaker for the parties’ three children during their marriage and that she assisted the husband in obtaining an advanced decree and establishing a career. The Court believed it very unlikely that in five years, the wife would be to earn an income that will enable her to either maintain the lifestyle she enjoyed during the marriage. The Court concluded that in considering the relevant factors for determining an appropriate spousal support award outlined in Sprenger, that the district court’s award was "just and equitable," having regard to the conditions in which the parties will be left by the divorce was an abuse of discretion. The practitioner must find out whether a military member is or has been a participant in the Thrift Savings Plan, and if so whether any funds have been withdrawn or borrowed from the plan. P> The Court cited several cases holding that social security benefits cannot be considered, distributed, or offset in marital property divisions. Reversing the reduction in the wife’s monthly share as based in part on such a prohibited consideration, the Court affirmed the holding below that each party’s social security benefit was separate property. The decree approved an agreement between the parties which was held merged in the decree. The wife sought a money judgment against the husband for arrears. The district court awarded the wife judgment against the husband for $12,535.17. The district court limited interest at the statutory rate on the various sums totaling $12,535.17 to a time commencing January 1, 1960, from which she appeals. The husband contended he was entitled to a credit of $1,972 paid directly to a son while attending college and prior to his 21st birthday; a credit of $1,562 representing tuition and living expenses paid directly to the son while attending college after reaching 21 years. The husband also contended there should have been no longer required to make payments to the wife for their daughter after her marriage. The agreement, merged into the decree, however, provided that payments to be alimony. The agreement did not expressly provide for reduction in the alimony payments in the event one of the children married. The third group is made up of members who entered service on or after August 1, 1986. That year, Congress had arranged to provide retirement benefits to those members that were lowered in two different ways. The second rung is "significant connection" jurisdiction.5 A Nevada court may make an initial custody determination if a court of another state does not have home state jurisdiction, or that home state court has declined to exercise jurisdiction based on its finding that Nevada would be the more appropriate forum. An exercise of jurisdiction on this basis also requires that the child and at least one parent have a "significant connection" to Nevada other than "mere physical presence," and that there is "substantial evidence" here concerning the child¡¯s care, protection, training and personal relationships. Upon separation from service, a tangle of other rules spring into effect. First, TSP accounts of less than $200 are automatically distributed at the time of separation. If between $200 and $3,500, the sums may be left in the TSP, or withdrawn in a single payment or multiple payments (cashed, or rolled over into an IRA or other retirement account). For accounts containing more than $3,500, the TSP balance can be partially or fully withdrawn in a single payment, or by way of a series of monthly payments, or by way of a life annuity. Any combination of the full withdrawal options is called a "mixed withdrawal." The RC-SBP was amended as of January 1, 2001, to require written spouse concurrence for taking any benefit less than Option C. Thus, the order of events for retirement and divorce make a difference as to whether the former spouse will have any input into the option selected. One portion of the case law is apparently unanimous. A comprehensive review of the cases throughout the United States reveals that there is no legitimate authority for the proposition that where the divorce decree preceded Mansell, there can ever be a waiver of retired pay by the retiree in favor of VA disability benefits without compensation being required to be paid to the former spouse, dollar for dollar, as to all sums the retiree’s actions caused to be diverted from her back to him. Complaining once a year at Ely about what was done during the last year - and waiting another year or longer for some attempt to address the problem - is not a particularly efficient means of managing concerns (although it beats the heck out of having no means at all for providing feedback to the Court). I just think we can and should do better than that. There may well be superior alternatives to this proposal, and if so I sure hope someone suggests them. The Supreme Court held that overtime should be included as income, if it is substantial and can be determined accurately. Id. at 841. The Court remanded for the district court to reconsider its finding that the father’s overtime shouldnt be considered in determining gross monthly income.

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