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FINALLY an SBP premium-shifting calculator for military cases revised
Learn more about FINALLY an SBP premium-shifting calculator for military cases revised.
A vital part of any military case is figuring out whether there is a survivorship benefit for the spouse SBP and if so who pays how much for it we have devised a calculator to make the process simpleUtah X This was a case involving the interpretation of NRS 125B.050(3). The noncustodial parents were subject to child support obligations pursuant to orders entered prior to July 1, 1987. In late 1994, the Washoe County District Attorney’s Office began notifying the noncustodial parents of its intent to enforce their support obligations on behalf of the custodial parents. A URESA master determined that pursuant to McKellar v. McKellar, 110 Nev. 200, 871 P.2d 296 (1994), each appellant was barred from recovering child support payments that had accrued more than six years prior to the commencement of each action. The district court determined that the masters correctly interpreted McKellar, and affirmed. This Agreement is a formal legal contract for Attorney’s services. It protects both you and your attorney, is intended to prevent misunderstandings, and it may vary the law otherwise applicable to attorney’s liens and resolution of fee disputes. DO NOT SIGN THIS AGREEMENT UNTIL YOU HAVE READ IT THOROUGHLY AND ARE SURE YOU UNDERSTAND ITS TERMS. If you do not understand it or if it does not contain all the agreements discussed, please call it to our attention and be sure this written Agreement contains all terms you believe are in effect between us. You have an absolute right to discuss this agreement with independent counsel (or any other advisor) before entering into this agreement, and we encourage you to do so. Indeed, the overwhelming majority of courts addressing the matter, before and after Egelhoff, have reached the same conclusion. The line of reasoning goes back at least as far as the Fourth Circuit’s 1996 decision in Altobelli,2 in which the court noted that ERISA does not directly address the issue, and found that ERISA’s anti-alienation provision does not apply to a beneficiary’s waiver of benefits. 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.30 The court waded through just about all the kinds of claims made by members 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.31 SUP> Wolff v. Wolff2 was another PERS case involving a Highway Patrol officer. The employee spouse became eligible to retire three months after divorce, but elected to keep working. The district court had calculated the spousal share of the retirement and ordered the husband to pay that sum to the wife from his salary until he actually retired. The lower court also tried to "reflect" that the husband was paying taxes on his current salary, and so awarded a couple hundred dollars less per month in "Limited Temporary Spousal Support" until the husband retired, as a "reasonable equivalency." That attorney not only had the paralegal sit in on all conference calls and in every meeting, but had her do all the talking at the settlement conference. The attorney looked like a fool, and his client was effectively betrayed. Second, there is the "default" - what would happen if the court deemed the former spouse to be the SBP beneficiary, at the full base amount, but took no steps to alter the ramifications of that election. The spouse would be "over-secured," to a greater or lesser extent.2 The smaller the lifetime interest of the former spouse happened to be, the larger the share of the premium that the member would pay.3 If the member died first, payments to the spouse 1) The United States and any other or employee of the United States shall not be liable with respect to any payment made from retired pay to any member, spouse, or form er spouse pursuant to a court order that is regular on its face if such payment is made in accordance with this section and the regulations prescribed pursuant to subsection (i). 65279;The Supreme Court adopted the economic needs test: "the amount of spousal support reduction, if any, depends upon a factual examination of the financial effects of the cohabitation on the recipient spouse. . .. Shared living arrangements unaccompanied by evidence of a decrease in actual financial needs are generally insufficient to call for alimony modification." Id. at 422-423. The Court noted that the economic needs test properly considered the rights and needs, both fiscal and personal, of the payor and recipient. The Court further noted that rights to spousal support were not to be rescinded simply because the recipient was cohabiting. The Court held that "a showing that the recipient spouse has an actual decreased financial need for spousal support due to the fiscal impact of a cohabitant may constitute changed circumstances sufficient to require a modification of unaccrued payments under that support obligation." Id. at 424. Both district court decisions were affirmed. Where the military member is the custodial parent, there is authority indicating that the member can use the SCRA to stave off change-of-custody or contempt proceedings, even where the non-military parent is thus deprived of contact with the subject child for months, or even years.2 Denial of contact has, however, been deemed important when it is the member making that assertion, requesting a stay of proceedings under the SCRA when the non-military spouse is the child’s custodian.3 On the larger scale is Welfare’s failure to comply at all with the Nevada statutes governing collection of interest (since 1987) and penalties (since 1995) through about 2005. It is hard to conceive of a larger equal protection problem than the fact that poor people relying on the State instead of private counsel to collect child support arrears simply did not get what the law required them to get. Prior to the marriage, the husband acquired two A & W restaurants. The businesses were incorporated and all of the assets for the restaurants were transferred into it. Subsequent to the marriage, they obtained two more drive ins which was done primarily with the cash flow from the two premarital restaurants. The opinion included few other facts. The parties were married in 1951. In 1955, the husband began working for the Ideal Supply Company, and shortly thereafter became general manager. In 1958, the owner of the company died, leaving the majority of the stock to his wife, and the balance to his two sons. When the owner’s wife died, she bequeathed her stock to the husband in his name alone. The corporation thereafter retired the remaining stock, making husband the sole owner of the company. Shortly after receiving it, the husband stopped actively participating in the company. The district court awarded the stock in the company to the husband as his sole and separate property. Quoting at length from a law review article analyzing the mathematics of the situation, the court found that acceptance of the husband¡¯s argument would have allowed him to collect the entirety of the accumulating "earnings" on the marital property accumulated by both parties. Three judges dissented.5 Notably, Congress itself appears to have adopted the reasoning of this theory in the amendments to the USFSPA that went into effect in 1997 (for both CSRS and FERS retirements, but only as to waivers made on or after January 1, 1997). Under those rules, if a military member waives military retired pay in order to take a Civil Service retirement, the former spouse must be paid what she would have received from the military in order for the waiver to be accepted by the Office of Personnel Management.1 The mother was awarded primary custody and the father was ordered to pay support of $200 per month. For employment reasons, the mother moved from Las Vegas to Memphis. The father then stopped paying. The district court cut the father’s support obligation in half to penalize the mother for violating his visitation rights. The mother later moved increase support under the newly enacted NRS 125B.070. The referee recommended and the mother eventually received an increase. The father did not oppose the recommendations and the district court ordered an increase in support. When the mother attempted to reduce arrears to judgment, the father protested, claiming he did not receive an opportunity to object. The family court reviewed the issue of child support and refused to modify the district court’s orders. The family court calculated arrears based upon support of $200 per month until the time that the district court ordered support cut in half, and then $100 per month afterwards. Utah X Having the member bear the entire premium would only appear to be a correct result if the court determined, based on the entirety of the parties’ economic positions, that the result was mandated as a matter of disparity of income. Similarly, it would be improper to have the former spouse bear the entirety of the SBP premiums, at least in those States in which the courts are required to equally distribute marital property and debts, because the benefit being accorded to the member in the event of the spouse’s death is greater, and there is no cost to that survivorship interest. The key operative word in NRS 125.155(2) is "may." The provision is an "opt-out" clause - for PERS cases only - to the mandate of Gemma and Fondi that the spouse is eligible for distribution of his or her share of the retirement at the employee spouse’s first eligibility for retirement. The legislative history states that it was intended to undercut the change of Nevada’s community property scheme from "equitable" to "equal" in 2003, but just for PERS participants. sband was only employed occasionally. The wife was the principal supporter of the family which included paying off the husband’s extensive obligations incurred prior to and during the marriage. The wife was required to hold full time employment in order to meet the obligations. The stress of the financial problems along with marital strife affected her health to the extent that she had an operation and underwent treatment for a nervous condition. The home was held in joint tenancy. The district court did not order periodic alimony payments, but it did order the husband to quitclaim the residence to the wife for her "future support, maintenance and security." LI> The former spouse must not yet be age 65. Upon eligibility for Medicare (Part A), CHAMPUS eligibility ends. Some continuing benefits for former spouses may be available under the "TRICARE-for-life" program effective October 1, 2001. Another thing to watch closely in military cases is the time restrictions for former spouse qualification for ancillary benefits (medical, commissary, theater, etc.) For full benefits, the member must have served twenty years, the marriage must have lasted twenty years, and the service and marriage must have overlapped by twenty years (the "20/20/20" rule).1 "20/20/15" former spouses divorced before April 1, 1985, are also eligible for lifetime medical benefits. Lesser benefits are available for "20/20/15" spouses divorced after that date. We now discuss primary physical custody to contrast it with joint physical custody and to clarify its definition. A parent has primary physical custody when he or she has physical custody of the child subject to the district court's power to award the other parent visitation rights. See, e.g., Ellis, 123 Nev. at 147, 161 P.3d at 240. The focus of primary physical custody is the child's residence. The party with primary physical custody is the party that has the primary responsibility for maintaining a home for the child and providing for the child's basic needs. See Barbagallo, 105 Nev. at 549,779 P.2d at 534 (discussing primary custodians and custodial parents in the context of child support); see Tenn. Code Ann. § 36-6-402(4) (2005) (defining "primary residential parent" as the parent with whom the child resides for more than 50 percent of the time). This focus on residency is consistent with NRS 125C.01O, which requires that a court, when ordering visitation, specify the "habitual residence" of the child. Thus, the determination of who has primary physical custody revolves around where the child resides. Other courts have expanded upon the analysis in Feder. In Mozes, supra, the mother had relocated to the United States in 1997 with the children, and a year later filed for divorce. It was then that the father filed a Hague Convention petition for return; despite the passage of time, the appellate court remanded the question of whether the children’s habitual residence had been changed to the United States to the district court.5 The court rejected the members’ "equal protection" attacks on partition of pensions omitted from the initial decrees of some of the plaintiffs, recounting the retirees’ "odysseys through the state and federal courts challenging state court decrees dividing their retirement pay" and noting that the retirees "were unable, as a final matter, to convince any of these courts that division of their retirement pay was unconstitutional or legally improper." The court found that partition of military retirement benefits is precisely the sort of "economic adjustments to promote the common good" that legislatures properly perform, and that any retroactive effect of USFSPA is curative, accomplishes a rational purpose, is entitled to be liberally construed, is shielded from constitutional attack, and served public policy. It rejected the contract clause and due process arguments as well. The maximum amount of the standard SBP annuity for a beneficiary under age 62 or a dependent child is 55 percent of the elected amount of the member’s base retired pay13 as adjusted from time to time for cost of living increases.14 In 1999, Congress again changed the rules, modifying what had become known as the "REDUX" plan to provide for an irrevocable choice of retirement plans to be made by that third group of members (who entered service after July 31, 1986), at their 15th year of service. Such members are given the choice of taking the same "High-3" retirement paid to those who entered service between September 8, 1980, and July 31, 1986, or to take the lowered REDUX benefits described above, plus a one-time lump-sum "Career Status Bonus" (CSB) of $30,000.00 payable at the 15-year mark.After the 1999 change, this option became known as the CSB/REDUX option. The father had made at least two child abuse claims against the mother, who had primary custody, but reports had been unsubstantiated. The mother and her new husband were offered riverboat gambling jobs in Louisiana, with supervisor status and higher salaries. The district court denied both move request and the father’s move to change custody. The law is not well developed, but it would appear that the separate property of one spouse is most readily "set apart" for the support of the other when the sort of facts set out in Daniel v. Baker1 are present: there is a great disparity in the financial condition of the two parties; the spouse in need has no or little potential for meaningful employment with a sufficient salary for the spouse to reach a decent standard of living; and there is a great age distance between husband and wife. The case becomes even stronger where, as in Sargeant,2 one spouse is likely to violate court orders of regular support, or even destroy assets just to injure the other spouse. The courts holding that the SBP should be maintained seem to impliedly realize, but not explicitly state, that the members’ survivorship interest in the former spouse’s benefits is automatic and free, while the spousal survivorship in the member’s benefits requires payment of a premium. None of the decisions goes into detail, comparing what the member or the spouse would actually receive in The Family Law Section requests that this court define all types of legal and physical custody to create a continuum in which it is clear where one type of custody ends and another begins. It argues that such definitions will provide much needed clarity and certainty in child custody law. Our discussion of child custody involves two distinct components of custody: legal custody and physical custody. The term "custody" is often used as a single legal concept, creating ambiguity. NRS 125.460, NRS 125.490 (using the term "joint custody"). To emphasize the distinctions between these two types of custody and to provide clarity, we separately define legal custody, including joint and sole legal custody, and then we define physical custody, including joint physical and primary physical custody. During the pendency of a divorce, the husband and wife entered into a property settlement agreement dated September 15, 1948. The agreement addressed the real properties of the parties and stated how they would be awarded to each of them. As to a Las Vegas property, the parties agreed that it would be divided equally and vested in each of them as their separate property. The parties acknowledged that the Las Vegas property was held in joint tenancy, and they agreed to hold as tenants in common. The parties additionally agreed to execute and deliver documents effectuating transfer. All of the items, except the Las Vegas property, were exchanged in accordance with the terms of the agreement. The husband refused to transfer the Las Vegas property and later died. The wife claimed that the Las Vegas property became vested in her as a surviving joint tenant. The estate brought suit. The district court concluded that the agreement severed the joint tenancy. Next, determine the member’s "home of record" with the military. According to the Legal Assistance Policy Division of the U.S. Army’s Judge Advocate General’ Corps states that the "Home of Record" is the state of residence of a member when the member entered the service of the armed forces. This may, or may not, be the same as the member’s domicile - the place that, when the member eventually goes "home," he will return to. In actuality, "Home of Record" is used solely for the purpose of determining the amount of moving expenses that will be provided to a member and his family upon termination of military service, and sometimes members simply don’t get around to changing this notation for many years during active duty service. To be entitled to a "year" of creditable service, the reservist must obtain at least 50 "retirement points." A point is awarded for each day of active service, or for full-time service while performing annual active duty for training or attending required training. A point is awarded for each drill performed adequately, or for each three hours of military correspondence or extension courses that are successfully completed. There are various other ways of acquiring points. A maximum of 365 points may be earned each year. Any year in which the 50-point minimum is not reached does not count toward retirement, although the points earned in such years eventually factor into the retired pay paid. 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. UP> NRS 123.220 allows spouses to agree to the characterization of property as community or separate by entering into a written agreement. Separate statutory provisions govern Premarital Agreements.4 Agreements as to transmutation can be complex and are beyond the topic of this paper, and so generally are not discussed further here. You can find FINALLY an SBP premium-shifting calculator for military cases revised Divison of Military Retirement Benefits In Divorce The Marren and Page Case List Gepford v Gepford The Special Problem of Divorce Decrees Entered in Foreign Countries as to D A Brief Aside Regarding Disability and the TSP child support expert Exhibits on Rivero Exhibit Three Section Four Public Employees Retirement System PERS Benefits Section II Subsection B Present Value A Bird in the Hand Introduction to Nevada Law of Child Custody and Visitation in Divorce Why those seeking a Nevada divorce should choose a board certified family l The Marren and Page Case List In the Matter of Parental Rights as to Q L R The Marren and Page Case List Truax v Truax Teuton Amicus Brief Discussion FINALLY an SBP premium-shifting calculator for military cases revised available at lvfamilylawyer.com by clicking above. 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