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Partition Actions
Learn more about Partition Actions.
Many States will permit former spouses to return to court for partition of assets not disposed of in the original divorce proceedingThe 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a military member is or has been a participant in the Thrift Savings Plan, and if so whether any funds have been withdrawn or borrowed from the plan. The exceptions and anomalies to this line of cases are few and far between. In 1997, the Kansas Court of Appeals heard and decided In re Marriage of Pierce,5 a "double-divorce" Partition actions, to be enforceable, must be brought with both sufficient "federal jurisdiction" under 10 U.S.C. § 1408 and adequate State court jurisdiction. When the partition action is brought in a different State than the one which granted the divorce, some courts have applied the partition law of the former matrimonial domicile,4 while others have elected to use the law of the forum where the suit is heard.5 The USFSPA now only allows partition (or any other post-divorce order affecting the retirement benefits) if the issuing court has proper federal jurisdiction over both the member and the former spouse in the action.6 As seen in the "early out" cases discussed above, however, and (generally) in the disability cases discussed below, precedent supports a couple of general propositions. First, that the military member may usually choose any legitimate retirement option available under law. Second, that it makes no difference how or why the member reduces the sum of retirement benefits otherwise payable to a former spouse - the fact of doing so mandates that compensation be provided to the former spouse.1 This can play out in a number of ways, depending on the timing of events. This is where the complications and illogic come in. Presume three identical divorces on the same day. In the first case, the attorney, who knew almost nothing about military retirement benefits law, did not even know there was an SBP to allocate. The second knew that something had to be done, and so put a statement in the Order verifying that the former spouse was to be the beneficiary. The third not only knew to secure the right, but knew about the deemed election procedure, sent the required notice in, etc. If the spouse dies before retirement (whether the parties are married or divorced), no spousal consent is needed to waive the SBP. If the spouse dies during marriage but after retirement, SBP premium deduction stops as soon as the military pay center is informed of the spouse’s death. 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. 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. In every case, if local rules permit, recite full name and Social Security numbers of both parties to assist military pay center in enforcing order (format below is only an example). The Supreme Court observed that the wife had been informed of the entry of the judgment and provisions and accepted the benefits of the judgments. The Court held that a party who has taken advantage of the favorable provisions of a judgment or has acquiesced in its terms by enforcing it will not be permitted a review citing to Hummel v. Roberts, 70 Nev. 225, 265 P.2d 219 (1954) and Gerbig v. Gerbig, 60 Nev. 292, 108 P.2d 317 (1940). 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. Without explaining that a custodial parent has the right to obtain child support in accordance with the statutory formula, as noted in footnote 1 in Parkinson, 106 Nev. at 483, 796 P.2d at 231, the Scott court expanded this rule to suggest that any child support award can be modified regardless of a change in circumstances. 107 Nev. at 840, 822 P.2d at 656. The Scott court, however, went on to consider whether the district court abused its discretion when it deviated from the statutory formula when it considered several factors enumerated in NRS 125B.080(9) to reduce the noncustodial parent's support obligation. Id. at 840-41, 822 P.2d at 656. The Scott court concluded that the district court did not abuse its discretion, but the rationale is unclear. Id. It is unclear whether the Scott court determined that the district court properly found a change in circumstances or properly determined child support under NRS l25B.070 and NRS l25B.080(9). However, regardless of the rationale, to the extent that Scott suggests that changed circumstances are not necessary to modify a support order, it misstates the law. The second possibility stated by the majority for finding jurisdiction in the family court ¨C that the couple "otherwise qualify as a familial unit" ¨C may have created even worse problems. That terminology is unknown to the prior case law, and appears on its face to be contrary to the standard slowly being evolved in this subject area. 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. Finally, the Alaska formulation contains a "look-back" provision under which courts are to eliminate the joint-custody offset if it was set up based on a custodial schedule that was not in fact followed by the minority-time-share parent, restoring full guideline support. This was a non-family law case in which the Court reemphasized its holding that in determining the validity of an award of attorney’s fees under NRS 18.010(2)(b), "if an action is not frivolous when it is initiated, then the fact that it later becomes frivolous will not support an award of fees." (quoting Duff v. Foster, 110 Nev. 1306, 1309, 885 P.2d 589, 591 (1994)). The Court fleshed out that the focus is the time of initiation of the action, not the time of trial, and remanded to apportion attorney’s fees between the claims that had no reasonable grounds, and those that did have reasonable grounds. The USFSPA is both jurisdictional and procedural; it both permits the state courts to distribute military retirement to former spouses, and provides a method for enforcement of these orders through the military pay center. The USFSPA itself does not give former spouses an automatic entitlement to any portion of members' pay. Only state laws can provide for division of military retirement pay in a divorce, or provide that alimony or child support are to be paid from military retired pay. Rights granted by state law are limited by ?federal law, even if state law does not so provide, and even if the courts of the states do not see any such limitations." Find out where the member last voted; registering to vote usually requires an affirmation of either domicile or residency in the jurisdiction in which the vote is to be cast. Again, when the registration to vote was made could be important, as well as how recently it had last been relied upon. For example, if the registration to vote had been made twenty years ago, and the member last voted years before moving to the forum state, the fact might be of little consequence given events since that time. It is for that reason (among others) that Mr. Vaile submitted himself to the jurisdiction of the courts of Nevada for the setting of a child support order, even though his divorce Complaint contained a fraudulent assertion of residency and Nevada had no jurisdiction over questions of child custody. The following paragraph is an anti-fraud clause designed to allow the court to treat the spousal share AS the spousal share, even if the entire retirement is merged into another form of benefit. The nature of the rights of married persons in personal property acquired during marriage is determined by the laws of that state which is the matrimonial domicile of the parties at the time the property is acquired. In a military case, an order dividing retired pay as the property of the member and the former spouse will only be honored by the military if the issuing court exercised personal jurisdiction over the member by reason of: (1) residence in the territorial jurisdiction of the court (other than by military assignment); (2) domicile in the territorial jurisdiction of the court; or (3) consent to the jurisdiction of the court.2 statutes already presume a contribution to some of the child’s expenses by the minority time-share parent during visitation, or joint custody. That is one reason guideline support is already lower than necessary to adequately support children, as set out above. Former spouse coverage was not possible before 1983, and has evolved considerably over the years, as it was made no more expensive than current spouse coverage, and then stipulations to provide such coverage were made enforceable. The theory is that the former spouse should be able to decide when benefits that are due and payable to the spouse will actually commence - that "The employee spouse cannot by election defeat the nonemployee spouse’s interest in the community property by relying on a condition within the employee spouse’s control."3 A spouse making such an election should also receive the imputed cost of living adjustments that would have accrued if the member had retired, but the former spouse would not share in any actual later increases in rank, or benefit from additional years in service. The wife was awarded temporary support. The statute provided that in any suit for divorce the court "may, in its discretion, . . . require the husband to pay such sums as may be necessary . . . for the wife’s support . . . during the pendency of such suit" citing to NRS 125.040. The husband contended that under the statute an allowance for temporary alimony was based on the necessity of the wife, and that the evidence showed that the wife did not have necessitous circumstances. The wife contended that the law did not require her to finance her divorce case from her own separate funds while the husband paid for his litigation out of the joint or community properties of the parties. The Court held that the statute did not limit awards for temporary alimony to those cases where the wife was destitute or practically so. The Court held that the statute contemplated such awards when, the facts, circumstances, and situation of the parties, are such that in fairness to the wife she should be given financial assistance for her support during the pendency of the action. The Court concluded that temporary alimony should not be denied because the wife possessed a separate estate where the income therefrom was not sufficient for her support, and she need not resort to the body of her estate before calling on that of her husband. The Supreme Court reversed. The Court began by noting that both parents have duty, under NRS 125B.020 to provide a child necessary maintenance, health care, education, and support. The Court reviewed the history leading up to the enactment of Chapter 125B. The Court also reviewed the public policy reasons behind the setting of child support based upon percentages. The Court noted that NRS 125B.070(1)(a) defined "gross monthly income" as "the total amount of income from any source of a wage-earning employee . . . after deduction of all legitimate business expenses, but without deduction for personal income taxes, contributions for retirement benefits, contributions to a pension or for any other personal expenses." The Court then discussed the advantages of basing support on gross monthly income as it is relatively easy to calculate. The Court noted that the sum calculated was presumed to be appropriate, citing to NRS 125B.080(5). The Court then noted the trend for deviations from the formula amount. The Court then finally noted that a district court might deviate from the formula based upon explicit findings of fact related to these factors citing to NRS 125B.080(6) and (9). The Supreme Court noted that after the husband and his second wife married, they purchased real estate which they held in joint tenancy, and later sold. The proceeds were put into a certificate of deposit to "Howard F. McKissick, Jr., and/or Dorothy McKissick." The district court found the certificate to be in a form to be paid to the survivor. The Court noted that there was no written agreement between the husband and his second wife with respect to the creation of a joint tenancy in the time certificate of deposit. The certificate itself did not contain language of joint tenancy or survivorship. The Court noted that NRS 111.065(2) provided that "a joint tenancy in personal property may be created by a written transfer, agreement or instrument." The Court further noted that a writing was required citing to Weinstein v. Sodaro, 91 Nev. 638, 541 P.2d 531 (1975). The words "and/or" in the certificate of deposit did not create a joint tenancy. The Court further concluded that oral testimony was insufficient to create a joint tenancy. The Court held that a joint tenancy must be created by a written transfer, agreement or instrument citing to NRS 111.065 (2) and that it may not be created orally citing to Crocker-Anglo National Bank v. American Trust Co., 338 P.2d 617 (Dist.Ct.App.Cal. 1959) and California Trust Co. v. Bennett, 204 P.2d 324 (Cal. 1949). 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. In sum, I would uphold the district court's order as consistent with Nevada statutes that presumptively favor joint custody, especially agreed-upon joint custody, and require that before a joint custody decree is modified, it must be shown that the child's best interest requires the modification. As district courts have broad discretion in deciding custody and support, so long as the policies set by statute are applied, the district court properly adjusted the parties' timeshare agreement and declined to modify the child support obligation to which the parties agreed. Property held in the individual name of a spouse or in the name of both spouses as tenants in common can be compatible with the concept of community property, but property held in joint tenancy cannot because certain incidents of joint tenancy would be inconsistent with incidents of community property. . . . Whenever property nominally held in joint tenancy is determined to be community property the right of survivorship is destroyed and is brought within the laws of descent and distribution. As explained elsewhere in these materials, the military system does not permit the creation of a divided interest to the spouse, but only a divided payment stream. As detailed in the section immediately below, there is an automatic reversion of the spousal share of those payments to the member, should the spouse die first. B> While a bit outside the scope of this seminar, practitioners should be aware that as of October 1, 2007, Nevada adopted the Uniform Child Abduction Prevention Act of 2006 (UCAPA), enacted as new chapter 125D of NRS. Jurisdiction to make an order under the statute is present so long as the Court would have had jurisdiction to make a child custody determination under the UCCJEA, including the emergency jurisdiction provision of that act.1 Nevada adopted the new act as of October 1, 2003. The revised enactment was intended to eliminate inconsistent state interpretations in several ways, as explained in the preamble to the modified uniform act: Court in 2007, "Jurisdiction to modify a foreign support order is properly determined by the residence of the parties at the time a motion to modify is filed."3 B> The primary purpose of the USFSPA was to define state court jurisdiction to consider and use military retired pay in fixing the property and support rights of the parties to a divorce, dissolution, annulment, or legal separation.14 The case began with the filing of a divorce complaint by the wife against the husband. The husband’s mother filed a fugitive "counterclaim" in which she attempted to sue the wife in tort on the ground that the wife had converted to her own use certain coins, personal property belonging to her. The Court noted that the mother-in-law not eligible to file a counterclaim. No application was made for intervention under Rule 24, and the counterclaim was completely beyond the scope of the pleadings in the divorce action. Because the litigation had progressed so far the Court was reluctant to tell the wife to start over. The Court noted that the only evidence which supported the daughter’s contention that the property was her mother’s separate property was the recitation in the deed that it was conveyed to her as "her sole and separate property." The Court cited to the usual cases that properties acquired is presumed community property and the presumption can only be overcome by clear and certain proof and cited to Todkill v. Todkill, 88 Nev. 231, 495 P.2d 629 (1972); Carlson v. McCall, 70 Nev. 437, 271 P.2d 1002 (1954) and Lake v. Bender, 18 Nev. 361, 7 P. 74 (1884). The Court found that the daughter presented no authority and the Court found none which supported her contention that the words "her sole and separate property" written in the deed were sufficient to overcome the presumption that the parcel was community property. The Court held that the phrase "her sole and separate property" by itself, without supporting evidence, was not clear and certain proof required to overcome the presumption. The survivor of a member who died while still on active duty is not necessarily excluded from receiving SBP benefits. The Finance Centers will honor a member's election to treat a former spouse as the SBP beneficiary if the member died after: (1) becoming eligible to receive retired pay; (2) qualifying for retired pay but not yet having applied for or been granted that pay; or (3) completing twenty years of service, but not yet completing ten years of active commissioned service needed for retirement as a commissioned officer. The procedural requirements are the same as in other cases. You can find Partition Actions Public Employees Retirement System PERS Benefits Section II Subsction B Motion to File Errata on Rivero Amicus Brief Legal Separation Allowed The Marren and Page Case List Champagne v Welfare Divorce Geeson v Barnes I Only the Question of Return Not Custody is to be Determined Divison of Military Retirement Benefits In Divorce Section V Subsection D Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Is There a Pocket Where to File and Litigation Division of Military Retirement Benefits in Divorce Section B The Deflected Attempt to Conform the Law to Error Nevada child custody expert lawyer In Search of a Coherent Theoretical Model for Alimony The Marren and Page Case List Bemis v Estate of Bemis Siragusa v Brown The Uniformed Services Former Spouses Protection Act Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Teuton Amicus Brief Factual History Divison of Military Retirement Benefits In Divorce Section X Subsection B Ogawa Amicus Brief CONCLUSION The Marren and Page Case List Wolford v Wolford Partition Actions available at lvfamilylawyer.com by clicking above. 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