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Alimony and the Interplay with a Military Veteran

KEEP YOUR HANDS OFF MY DISABILITY PAY! SERVICE-CONNECTED DISABILITY AND ALIMONY There is no doubt, military veterans and their spouses each sacrifice to allow the family to function while the service member is deployed or otherwise serving our country.  A divorcing couple with military retirement, disability benefits and child support in issue, may square-off when arguing over the “proper” community property division and support. Effective October 1, 2015, AB 140 will become law as part of Nevada Revised Statute Chapter 125 (Dissolution of Marriage) which will be amended to clarify and confirm Chapter 11 of Title 38 of the United States Code, the existing federal law which states federal disability benefits awarded to veterans for service-connected disabilities pursuant to shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process.  It has been well established that a Nevada family court could not directly divide a veteran’s disability benefits, as this is preempted by federal law.[1]  Arizona, by contrast, went much further and precluded their family courts from considering or acknowledging disability benefits awarded to veterans through the Department of Veterans Affairs (“VA”) under title 38, chapter 11 of the U.S. Code. [2] From the service-members’ perspective, he or she provided the service and was awarded disability for a reason, which may include significant physical and/or emotional impairments.  The service member views this as wholly separate from anything that should be given to the other spouse, as they suffered to obtain the benefit. From the spouses’ perspective, he or she may have had to travel,... read more

NALA’s 40th Annual Convention in Tulsa Oklahoma

I was fortunate enough to attend NALA’s 40th Annual Convention in Tulsa Oklahoma on July 22-24, 2015. Not only was the institute on Legal Technology fantastic, but I was able to connect and chat with paralegals from as far away as the Virgin Islands. The event kicked off with an early bird reception Tuesday evening, where a local NALA affiliated organization was dressed in 1940’s attire. They gave out door prizes for those who were born the year NALA began (1975), those who travelled the furthest to attend (the Virgin Islands), and for those who have been paralegals the longest (I believe the lady who won had been a paralegal for almost 50 years). Wednesday is when my Legal Technology institute began, and I learned about the some of the social media trends, and ways to obtain information off social media. Lunch was a brown bag round table discussion on ways your local organization can improve their visibility using social media, followed by the vendor’s product demonstrations. There was an opening night reception Wednesday evening, which provides attendees with another opportunity to network and meet paralegals. After the reception, I attended a dinner for past participants/current participants/and those interested in participating in NALA’s Leadership Enhancement and Preparation (“LEAP”) course. I was a current participant, who had to give a presentation on what the mission statement of the program, as well as some of the leadership techniques learned during my 12 month course of study. LEAP was designed by NALA to help serve state and local NALA affiliated associations, as well as developing an individual’s leadership skills needed to support... read more

PERS in a Nevada Divorce

Divorcing parties with a Nevada PERS pension benefit should carefully look at their rights and the best way to divide the pension. Often, this is an afterthought as the parties simply agree to divide the asset “equally”. There is very specific case law in place that governs what takes place relative to the “survivor benefit.” I urge my clients to be aware of their pension and for the spouse that is not the named plan member, to be aware of the survivor benefit. Good information is available from NV PERS. A Qualified Domestic Relations Order (called a “QDRO”) will need to be drafted to address the exact requirements of the pension plan administrator and all the little terms that govern exactly how the pension will be... read more

The National Association of Legal Assistants

The institutes they will be teaching offer a great mix of advanced and general skills programs for all paralegals. The institutes described below will be held each morning of the July program – Wednesday July 22, Thursday July 23 and Friday, July 24. The educational institutes are the key programs of the NALA convention, offering over 8 hours of CLE. Alternative Dispute Resolution. The purpose of this institute is to review with legal professionals the various aspects of Alternative Dispute Resolution. This institute will cover how different ways disputes can be resolved and what it takes to get to the table as well as what to do once you get there. This institute will review how the ADR options differ and how to determine which option you choose or how to determine whether you get to choose or the choice is made for you according to existing agreements or contracts. Corporate Law. Corporate Law covers any issues that accompany the formation and day-to-day management of a business. In this institute, we’ll cover a broad spectrum of topics that most corporate paralegals encounter. On day one, we’ll lay the groundwork by covering the formation of legal entities, with a focus on the LLC. Day two, we’ll build on that foundation with a finance flavor and an overview of due diligence during the M&A process. The last day of the institute will be employment law as well as the provision of contract drafting skills that are imperative to all corporate paralegals. This will be a great introduction to various aspects of corporate law for newcomers, and a great refresher for seasoned... read more

PERS in a Nevada Divorce

Divorcing parties with a Nevada PERS pension benefit should carefully look at their rights and the best way to divide the pension. Often, this is an afterthought as the parties simply agree to divide the asset “equally”. There is very specific case law in place that governs what takes place relative to the “survivor benefit.” I urge my clients to be aware of their pension and for the spouse that is not the named plan member, to be aware of the survivor benefit. Good information is available from NV PERS.   A Qualified Domestic Relations Order (called a “QDRO”) will need to be drafted to address the exact requirements of the pension plan administrator and all the little terms that govern exactly how the pension will be... read more

Division of Community Property – MUST BE EQUAL

Many divorcing parties are unaware of the fact that Nevada’s community property law requires an “equal division” at divorce.  A divorcing couple will often have a general discussion about splitting assets, but do not take the time to determine of the agreement complies with Nevada law or otherwise meet legal requirements for an unequal disposition.  See NRS 125.150(1)(b), which states, in part: NRS 125.150  Alimony and adjudication of property rights; award of attorney’s fee; subsequent modification by court.  Except as otherwise provided in NRS 125.155 and unless the action is contrary to a premarital agreement between the parties which is enforceable pursuant to chapter 123A of NRS: 1.  In granting a divorce, the court: … (b) Shall, to the extent practicable, make an equal disposition of the community property of the parties, except that the court may make an unequal disposition of the community property in such proportions as it deems just if the court finds a compelling reason to do so and sets forth in writing the reasons for making the unequal disposition. … If the parties are going to reach and agreement resulting in an unequal disposition of the community, such as one party taking more debt or one party keeping all of a retirement asset, there have to be reasons.  Moreover, the Court wants to know what those reasons are, or a divorcing couple could find the matter “stricken” by the Court. The Court forms provided in various counties in the state do not necessarily make this clear.  A significantly one-sided agreement risks increased scrutiny and/or outright... read more

ESTATE PLANNING: POST “DOMA” AND THE IMPACT ON SAME SEX COUPLES

Ensuring your assets are there for your same-sex spouse with Estate Planning tools will be much easier, and fairer, given the DOMA decision.  It is clear we are still in a transition period, but, in Nevada, which only mandates filing a federal tax form, there are broader protections for higher wealth same-sex spouses. For those that may not be as familiar with this issue, there was a recent decision by the U.S. Supreme Court in US v. Windsor that significantly impacts same-sex married couples.  “DOMA” (the Defense of Marriage Act) was impacted by the Windsor decision when the Supreme Court, in a 5–4 decision this summer, found Section 3 of DOMA was unconstitutional, declaring it “a deprivation of the liberty of the person protected by the Fifth Amendment.”  This has special tax and estate planning implications for same-sex married couples.  While Nevada does not allow same-sex marriage, couples that marry in other states now living in Nevada are impacted under federal rules.  Under Windsor, same-sex married couples are treated the same as heterosexual married couples in certain jurisdictions. Each person can give another person thousands of dollars each year without current tax consequences (for 2013, the tax-free gift limit is $14,000, adjusted each year based on inflation).  The gift recipient does not have to pay tax on the gift. The giver must report the amount given if it exceeds the annual limit. These excess amounts go toward the lifetime total of money each taxpayer may give without facing any gift tax penalty. In addition, an important tax break for married couples, called the marital deduction, permits spouses to transfer... read more

Surrogacy in the UK

It is very important for Intended Parents from the UK who are utilizing a surrogate/gestational carrier in the United States to follow specific instructions.  I have written a blog on this issue in the past.  However, there is a new decision in the UK that helps explain what is needed and explain what the though process is for a Judge in the UK.  The decision can be found at ttp://www.bailii.org/ew/cases/EWHC/Fam/2013/2408.html. The following analysis was processed in the case: There must be a biological connection between the child and one of the intended parents. The carrier can not be biologically related to the child. The court assessed the status of the applicant’s (the intended parents) relationship, considering that they had been in a relationship for ten years and married eight years. The application must be issued within six months after the child’s birth. The child must be in the care of the applicants at the time the application was made and at the time that the court is considering the order and at least one of the applicants must be domiciled in the UK. The applicants must be over the age of 18. The gestational carrier and her husband must give unconditional consent to the application.  The consent should be given freely and with full understanding of what is involved.    The carrier’s consent should be more than six weeks after the child’s birth.  The court bolstered the argument that there was consent by acknowledging that there was also agreement by the gestational carrier and her husband to a pre-birth order and that there was the original surrogacy agreement entered into. The court found that the... read more

Same Sex Married Couples may not be able to get Divorced

As a greater number of jurisdictions grant same sex marriage, there are a growing number of couples in non-recognition states traveling to those states for marriage. They then return to their non-recognition state of residence. Upon needing a divorce, they are then learning that their state may not be willing to grant the divorce and they do not meet the residency rules to obtain a divorce in any other location. It is a growing problem. In response to the growing problem, many states and countries, Canada, have started to modify their jurisdiction rules to provide exceptions for these couples. In general, the exceptions state that if the couple was married in that state and they are not able to obtain a divorce in any other jurisdiction they can get divorced in the state they were married in. In most cases they will only receive the status of divorce and not additional assistance with division of assets and debts. That is problematic but not as problematic as being permanently. National Center for Lesbian Rights (NCLR) has a great memorandum that summarizes each of the jurisdictions that have exceptions. If you are desperate for a divorce – read up and find out if you have a chance of returning to the state/country that you originally were married it. Read more: Divorce for Same-Sex Couples Who Live in Non-Recognition... read more
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