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Rivero v Rivero Opinion
Learn more about Rivero v Rivero Opinion.
Facts and Procedural HistoryThe following paragraph is intended to permanently transfer an Alternate Payee’s benefit under Wolff v. Wolff. However, you can bargain with opposing counsel for reversion of the benefit back to the member. Notably, none of the various time limits and statutes of limitations appear to be applicable to proceedings in the Board for Correction of Military Records, which has "broad remedial and discretionary powers to correct records." At the time of the marriage, the wife was working as a receptionist for a doctor’s office and the husband was managing his automobile agency. The wife quit working shortly after the marriage. The husband received $3,000 per month, plus a bonus at the end of each year. The automobile agency was sold in 1966 for $5 dollars, plus the assumption by the purchaser of nearly a million dollars in liabilities. The husband also inherited $750,000 in stock from his father’s estate. In June 1962, the husband purchased a lot for $10,000. He testified that this money came from the sale of stock which he inherited and he took title solely in his name. A loan of $42,400 was obtained for the purpose of constructing a house on the property, which was secured by a deed of trust on the property signed by both husband and wife. The house and lot were transferred by deed from the husband to the wife in October 1965. The district court found that the property had been transferred to the wife avoid its seizure by creditors, and that the wife had orally agreed to hold it in trust for husband and to reconvey it at his request. The district court then went on to find this property to be the sole and separate property of the husband. The following paragraph is intended to permanently transfer an Alternate Payee’s benefit under Wolff v. Wolff. However, you can bargain with opposing counsel for reversion of the benefit back to the member. The Seventh Circuit reached much the same result, but only by means of the tenuous finding that military retirement benefits are not part of the bankrupt estate because post-petition services are required of the member, making the benefits post-petition wages. See Matter of Haynes, 679 F.2d 718 (7th Cir.); cert. denied, 459 U.S. 970 (1982). 1. Except as otherwise provided in NRS 125A.335 or by other state law, if a court of this state has jurisdiction pursuant to the provisions of this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless: The affirmance on appeal centered on the Nevada Supreme Court’s approval of the primary holding - that Davidson had committed "fraud upon the court," which is not subject to NRCP 60(b)(3)’s six-month limitations period, and can be addressed by a court at any time, even sua sponte. See Murphy v. Murphy, 103 Nev. 185, 186, 734 P.2d 738, 739 (1987). The Court announced that when it reviewed district court decisions on NRCP 60(b) motions, it also examined whether the case "should be tried on the merits for policy reasons," Id. at 734citing to Kahn v. Orme, 108 Nev. 510, 835 P.2d 790 (1992). The Court expanded on that holding, stating that: "This court has held that Nevada has a basic underlying policy that cases should be decided on the merits. . . . Our policy is heightened in cases involving domestic relations matters," Id. at 734 to citing Hotel Last Frontier Corp. v. Frontier Properties, Inc., 79 Nev. 150, 380 P.2d 293 (1963), and Price v. Dunn, 106 Nev. 100, 787 P.2d 785 (1990). Such a deal provides an award to the former spouse of irrevocable, unmodifiable alimony in an amount measured by the military retirement benefits, in exchange for a waiver by the former spouse of any property interest in the retirement benefits themselves. Payments can then be made by the pay center. There is no reason (under the terms of the statute, at least) that cost of living adjustments, etc., cannot be included in such an award, and there should be no difference to the tax impact. B> The Nevada Supreme Court has struggled with alimony cases since such cases have been decided; even the case lines developed since the "no fault" era began half a century ago have been inconsistent and unpredictable, in both approach and results. SUP> Nevada case law has long held that property acquired during marriage is presumed to be community property, and that the presumption can only be overcome by clear and convincing evidence.2 The first Nevada case explicitly noting that retirement benefits earned during a marriage are divisible community property was apparently Ellett v. Ellett.3 On appeal, the husband sought to have court find the parties remained married so that wife’s property transferred to him. The Court held that the district court could modify property or alimony terms without vacating the divorce itself, under the concept of divisible divorce, without violating NRS 125.130. The majority opinion reversed the property provisions of the default decree but left the divorce itself in place. The Court held this result was compatible with Gojack v. Second Judicial Dist. Court, 95 Nev. 443, 596 P.2d 237 (1979). The Court appeared to base much of its result in equity by stating: ". .. Wayne now desires to posthumously confer the status of a deceased wife upon Kathleen in order to retain her share of the community property. To permit him to do so would engage the judicial process in an affront to equity. This we refuse to do." Id. at 976-77. The Court also noted that "equity considers as done that which ought to be done." Id. at 978. Partial dissent by Young and Rose, who would have held that setting aside a default decree of divorce did leave the parties married, along with providing a variety of quotable dicta on the oppressiveness of attorney’s fees. However, as detailed above, the language used was only intended to control what the system would directly pay, and the language can and should be interpreted consistently with the placement of the prohibition in the PERS regulatory provisions, not the divorce statutes, as a limitation as to the system only. Since that reading would be consonant with this Court’s prior holdings and retirement benefit divisions as practiced in other pension schemes with similar restrictions on pre-retirement payments, it is the preferred reading.1 A former spouse’s right to a portion of retired pay as property terminates upon the death of the member or the former spouse; the court order can also provide for an earlier termination.5 Any right to receive payments under the USFSPA is non-transferable; the former spouse may not sell, assign, or transfer his or her rights, or dispose of them by inheritance.6 To obtain benefits extending beyond a member’s death, the former spouse must obtain designation as the beneficiary of the Survivor’s Benefit Plan (discussed below), which has its own technical requirements. i) pay to that spouse from the member's disposable retired pay the least amount directed to be paid during that month by any such conflicting court order, but not more than the amount of disposable retired pay which remains availab1e for payment of such courts orders bas ed on when such court orders were effectively served and the limitations of paragraph (1) and subparagraph (8) of paragraph (4); The dissent would have drawn the line for when a Hague return was triggered by the fundamental determination of whether the it was a custodial, or non-custodial parent who took the child and left a country, ordering a return in the latter, but not the former, circumstance. By the dissent’s analysis, the removal of a child from a country by a custodial parent simply is not "wrongful," and the left-behind non-custodian is not entitled to return of the child, but only assistance in securing access for visitation. 2. A court of this State, which has made a child-custody determination and does not have exclusive, continuing jurisdiction pursuant to this section may modify that determination only if it has jurisdiction to make an initial determination pursuant to NRS 125A.305 5. The parent owing the greater amount of base child support shall pay the difference between the two amounts as a child support order. In no event shall the provisions of this paragraph be construed to authorize or allow the payment of child support by a parent having more than two hundred five (205) overnights. The reason for not only permitting, but encouraging the use of such indemnification clauses was explained well by the Minnesota Court of Appeals in Gatfield9: it basically ensures that the divorce courts are free to enforce the parties’ declared intent as a matter of contract law.10 Any court reviewing a decree seeking intent to indemnify must be 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."11 The California Supreme Court adopted the Court of Appeals decision, with a few changes, as its own. It held that the 1974 case law permitting division of military retirement benefits could be retroactively applied, that actions to partition omitted assets were explicitly permitted under California law, and that McCarty was not to be construed as acting retroactively. You can find Rivero v Rivero Opinion The Marren and Page Case List Foster v Marshman In Search of a Coherent Theoretical Model for Alimony Section II The Marren and Page Case List Magiera v Luera and Russo v Gardner Rivero v Rivero Opinion Subsection One Divison of Military Retirement Benefits In Divorce Section X Subsection C Court-Ordered Divisions of the TSP and Survivorship Benefits for the TSP Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Military Reservists Las Vegas retirement law expert The Marren and Page Case List Ellett v Ellett Gojack v Second Judicial Dist Updates on Prior Notes Reserve Component SBP The Marren and Page Case List McGuinnes McGuinnes Blaich v Blaich and Potte Hearing on the Petition for Return Rivero v Rivero Opinion available at lvfamilylawyer.com by clicking above. 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