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Legal Authority For Use in Requesting Fees in a Pro Bono Case
Learn more about Legal Authority For Use in Requesting Fees in a Pro Bono Case.
An attorney for a pro bono litigant can seek attorneys feesIf the member's "Tax Home" is in some jurisdiction that does not have a State income tax on active duty pay (which is common), so that the member may not even have to file a State tax return, the evidence is less persuasive. Often, when the member's tax home is such a State, further discovery will reveal that the member has little or no other connection with that jurisdiction. Requiring counsel to choose between having malpractice coverage and getting paid for work done is no choice at all. The real "choice" resulting was between refusing to work for clients who do not have money on retainer at all times, or continuing to do work knowing that there was no practical way to get paid after the end of the case if the client did not wish to voluntarily pay the bill. A member declaring bankruptcy does not lose the right to receive future retired pay based upon prior or future military service. In cases decided prior to enactment of the USFSPA, an order to pay a portion of retired pay to a former spouse (or a sum of money in lieu of such a portion) was often considered a "debt" dischargeable in bankruptcy rather than a property interest. Since enactment of the USFSPA, courts have generally held awards to former spouses of a portion of military retired pay to be non-dischargeable. Subject matter jurisdiction over a marriage is present as long as the court has personal jurisdiction over either of the parties to the marriage, and every state is required under the Full Faith and Credit clause of the United States Constitution to recognize decrees entered by other states if the other states had such personal jurisdiction over one party and afforded notice in accordance with procedural due process.3 The agency and the birth mother ultimately selected the adoptive parents. While the petition was pending, the birth mother filed an objection to the adoption, alleging that, due to a series of traumatic events that occurred around the child's birth, she was incapable of giving knowing, voluntary, and intelligent consent to the relinquishment of her child. Upon the birth mother's objection, the district court held a hearing to determine the validity of her prior consent. During the three day hearing, the birth mother filed supplemental objections, additional discovery requests, and a motion to revoke the relinquishment of her child because the relinquishment form did not state the names of the adoptive parents. The district court denied all of the requests and motions. At the conclusion of the hearing, the district court determined that the birth mother's consent was valid and, shortly thereafter, granted the adoptive parents' petition for adoption. The Court invited Congress to change the statutory scheme if divisibility of retired pay was desired, stating: "We recognize that the plight of an ex-spouse of a retired service member is often a serious one," and noting that: Probably the most obvious variation from place to place is when to stop counting. California, Nevada, and Arizona are three community property states sitting right next to one another, and it is not unusual for cases to involve parties with ties to any two of them. All three claim to apply the time rule to pension divisions, but they do the math differently. The Supreme Court affirmed. The Court noted that a review of the record showed there was no evidence presented by either party which was the same evidence relied upon by the previous court. The Court further noted for there to be identity of "causes of action," as that term is used, is the identity of the facts essential to their maintenance, and that the identity of the causes of action may appear from evidence in the two cases as well as from the pleadings, citing to Silverman v. Silverman, 52 Nev. 152, 283 P. 593 (1930). The record indicated that there was no evidence to indicate identity of causes of action. The district court and the husband’s attorney limited testimony to events occurring after date of the Missouri decree. For example, in In re Marriage of McGhee,1 the court approved compensation to the former spouse by means of alimony, as set out in the agreement between the parties, when it was imposed by the dissolution court after the member halted the flow of military retirement benefits to former spouse after the McCarty decision. The court termed use of such "back-up" clauses to be making the property award "supportified." Similarly, in deciding In re Marriage of Sheldon,2 the court noted the "close relationship between the amount of a property division and the entitlement, if any, of a spouse to spousal support." In In re Marriage of Mastropaolo,3 the court "conditionally" reversed an alimony award "on condition" that the court’s affirmance of the retirement division became final. And only a bureaucrat could say that going to the Legislature, asking to amend a statute to match how Welfare’s computer is able to do calculations, and having that amendment rejected, somehow constitutes an endorsement just because the Legislature did not also publicly chastise the Welfare Division. Effective April I, 1995, revised regulations" allowed use of formulas under certain circumstances, most commonly so a pre-retirement divorce decree could specify that the denominator in a time-rule calculation was to be the total service time. The Supreme Court affirmed. The Court noted that in determining alimony, a district court is to look at the duration of the marriage; the husband’s income, his earning capacity, his age, health and ability to labor; and the wife’s age, health, station and ability to earn a living, citing to Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1 (1974). The Court further noted that there was no abuse of discretion as the district court followed the Buchanan guidelines. In the absence of a provision explicitly permitting a retiree to recharacterize retired pay as disability pay and so divert money awarded to his former spouse back to himself, the retiree is required to reimburse the former spouse for all sums diverted, according to the highest courts to consider the question in Arizona, California, Florida, Idaho, Illinois, Iowa, Kansas,17 Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Nevada, New Jersey, New Mexico, North Carolina, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Washington. Two others, Alaska and Nebraska (and at least one Washington State court), while not requiring direct compensation, have indicated that other property should be distributed, or post-divorce alimony should be awarded, to compensate the former spouse in such situations. The few federal courts to address the question have reached the same conclusion.18 On the other hand, Steve Dallas, a lawyer character from the comic strip "Bloom County," was once depicted as stating: "Never, never, never sue poor people!" While this over-dramatizes the question, the sobering reality is that mounting a tort case against a number of defendants, often located in several states (or countries), is an extraordinarily complex, and expensive process.1 Without some good faith belief that someone in the reasonable chain of liability might actually be able to be compelled to pay a resulting judgment, counsel should hesitate before filing such an action, even when evidence of liability seems clear. Some points are obvious, such as how long the member has been in the jurisdiction, where the member does his banking, and where he sends his children to school. Investing in local businesses, contributing to local charities, or joining voluntary organizations such as church, civil, professional, or fraternal organizations, indicate ties to the community. Getting married, or buying a burial plot in a place might be construed as evidence of residential intent. Since there is no difference between that result and the presumptive maximum the minority time-share parent was already paying, there would still be no need to deviate. The "bottom line" of this procedure was to always pay more actual money to the member, and less to the former spouse, than was shown on the face of an order dividing retirement benefits by percentage. The medical benefits available to qualified spouses are for treatment at uniformed services medical facilities, and benefits under programs that have undergone a variety of name changes, from CHAMPUS ("Civilian Health and Medical Program of the Uniformed Services") to "US-VIP," to "TRICARE." The specifics of coverage have changed over the years, sometimes rapidly, and are beyond the scope of these materials. The district court entered a partial decree of divorce in January 1976, which terminated the marriage, however, it expressly reserved jurisdiction to issue a subsequent decree regarding the division of community property and community debts, and the award of alimony. That supplemental decree was entered May 1976. Decisions resolving both fee disputes were received in the following ten days. Both said that we were entitled to our fees as charged. But the delay had predictable effects. The decision came in two days after escrow closed on the last parcel of real estate from which we might have actually collected the fees owed. As of this writing we are trying to have the money interpled, but it looks like the Bar’s fee-dispute resolution system - again - delayed matters so long that the paper confirming my entitlement to tens of thousands of dollars in outstanding fees has become totally worthless. SUP> The authorities cited by mother for that proposition, however, are not on point. She cites Krymko v. Krymko2 for the proposition that a period of abduction can be included in the time a child is considered "present" in a state for purposes of establishing that the child lived there for six months. This may or may not be true, but would seem to have no application to determining the period from the child¡¯s departure until the date the left-behind parent commenced proceedings. Hague Convention judgments by either state or federal courts ordering or denying a return of a child are afforded full faith and credit.3 However, full faith and credit is only to be accorded a decision if a Hague Convention claim was actually adjudicated in the action in accordance with both the Hague Convention and ICARA.4 Thus, a Hague determination should not be considered either precluded or implied from a state court custody decision. The Carlsons were married in 1925 and were still married at the time of the lawsuit. In June 1945, the Mastens filed suit and attached the property known as the Ash Meadows Ranch. At the time of the attachment, the Carlsons were the record owners. The suit filed by the Mastens was based upon a judgment obtained by them in California in 1933, against Mr. Carlson. After the attachment was levied, on July 26, 1945, Mr. Carlson by quitc deed conveyed his interest in the attached property to his wife. On August 9, 1948, the Mastens obtained judgment against Mr. Carlson in Nevada, and the property previously attached was sold on execution sale to a T. A. McCall upon his bid of $20,000. The wife then brought action to quiet her title. The substance of her cause of action is that on June 1, 1945, the property was all hers and that her husband had no interest in it, although he appeared as one of the record owners. The district court held that the property was community property. While courts have been uncertain how to characterize the nature of the SBP,3 those squarely addressing the question have concluded that a spouse is "to be awarded a proper share of both the former husband’s military retirement plan and the survivor benefit plan," because of the "´potential unfairness’ to the wife should her former husband predecease her, thereby extinguishing pension rights."4 This view of the time rule essentially provides to the former spouse an ever "smaller slice of a larger pie" by getting a shrinking percentage of a retirement that is increasing in size based upon post-divorce increases in the wage-earner's salary and years in service. Cost of living adjustments seem to cause great difficulty to many practitioners and judges, and even to some actuaries. They are a valuation factor, however, that must be taken into account in dividing military retirement benefits. Simply put, a cost of living adjustment ("COLA") is an increase in the sum of a retirement intended to fully or partly offset the effect of inflationary or other changes in the cost of living. Specifically, a dollar sum starting at $100.00 per month for those with a 50% rating, to $750.00 for those with a 100% rating, was restored;5 the sums are scheduled to increase by an additional 10% each year through 2014, by which time full concurrent receipt will be paid. In 2005, retirees with a 100% disability were accelerated to immediate full concurrent receipt. Family court has too often been treated by the rest of the bench and Bar as a red-headed step-child of lesser standing. It is probably time for any conceivable rationalization for such treatment to be purged from the statutes. SUP> Further, NRS 123.140 provides a method by which a spouse may record a written "full and complete inventory of the separate property of a married person, exclusive of money." Recording the inventory serves as notice of that spouse’s separate property title to the property.7 The father sought to move with the children to Pennsylvania. The father indicated that his mother owned a four bedroom house there which would provide a bedroom for each child. The grandmother also had an established relationship with the children. The father testified that his mother was one of eleven children and that there would be an extended family of aunts and uncles within driving or walking distance. The father indicated that he expected to inherit the home when his mother died. The district court allowed the move. The qualifications for admission are sufficiently exacting that when the Board of Governors of the State Bar of Nevada approved Standards for Certification of Family Law Specialists in February, 2005, it recognized the existing Nevada Fellows of the AAML as certified specialists. This created a group able to draft standards and create a specialist certification test for other family law practitioners in Nevada. The essential purpose of the Hague Convention is to return children to their countries of habitual residence, where custody proceedings can then be held. Put into general phraseology of Nevada Domestic Relations Law, the Hague Convention treaty determines - between signatory countries - which court has subject matter jurisdiction to make custody determinations, and the children are sent to that jurisdiction for those proceedings. Nothing more. There are attorneys, and some trial level judges, who have tried to hold the language used in pre-Mansell divorce decrees to that "higher standard of clarity," arguing that the language of the USFSPA itself provided adequate "notice" of the issue to the former spouse as of 1982. Since virtually every published decision before Mansell had rejected the construction of the language embraced by the majority in Mansell, however, that argument has been almost universally rejected by appellate courts as sophistry, or at best a misdirected retroactive application of the Mansell holding.1 that physical custody shall be shared by the parents in such a way to ensure the child or children of frequent associations and a continuing relationship with both parents." Hearing on S.B. 188 Before the Assembly Judiciary Comm., 61st Leg. (Nev., Apr. 2, 1981) (summary of supporting information). This does not include divided or alternating custody, where each parent acts as a sole custodial parent at different times, or split custody, where one parent is awarded sole custody of one or more of the children and the other parent is awarded sole custody of one or more of the children. Id. In 1956, the parties entered into a written agreement settling maintenance and property rights. Each party was separately represented by counsel. The agreement specifically provided that the husband was obligated to the wife for her support and maintenance until she died or until she remarried, whichever occurred first. The agreement further provided that it could not be altered or modified except "in writing and executed with the same formality of this agreement by both parties." The agreement provided if a divorce proceeding was initiated, the agreement and its provision would be incorporated by reference and made a part of any decree granted. The agreement then stated that "notwithstanding the incorporation of this agreement in any such decree or judgment, this agreement shall not be merged in such decree or judgment, but shall survive the same and shall be binding and conclusive on the parties hereto, their heirs, executors, administrators and assigns for all time." Id. at 226-27. The wife came to Nevada and filed for divorce. The district court entered a decree which provided that "the certain property settlement agreement entered into by and between the parties hereto on the 21st day of March 1956 be ratified, approved and confirmed to survive this decree of divorce." Id. at 226-27. When the husband asked that the alimony award be modified, the district court concluded that it lacked jurisdiction to do so. The Supreme Court reversed. The Court noted that in McGlone v. McGlone, 86 Nev. 14, 464 P.2d 27 (1970), that a fit parent is to be preferred over nonparents in child custody cases and that custody may not be given to a nonparent unless the parent is found to be unfit. The Court concluded that the presumption of parental preference as a matter of law had been overcome. The Court found that the father’s attitude and conduct was one of callous indifference and abandonment. The Court found that the record presented conclusive evidence of husband’s unfitness. The Court noted that the best interests of the children were paramount citing to NRS 125.140; Cooley v. Cooley, 86 Nev. 220, 467 P.2d 103 (1970); Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969); Timney v. Timney, 76 Nev. 230, 351P.2d 611 (1960) and that those interests would best be served by placing the care and custody of the two children with their grandparents. If the member's "Tax Home" is in some jurisdiction that does not have a State income tax on active duty pay (which is common), so that the member may not even have to file a State tax return, the evidence is less persuasive. Often, when the member's tax home is such a State, further discovery will reveal that the member has little or no other connection with that jurisdiction. Ohio X You can find Legal Authority For Use in Requesting Fees in a Pro Bono Case The Marren and Page Case List Wiese v Granata The Marren and Page Case List Kennedy v Kennedy The Marren and Page Case List Summers v Summers Military Retirement Benefits Component of a Civil Service Retirement Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar The Marren and Page Case List Barrett v Franke In re Wilsons Estate Peters Child Custody Jurisdiction in Nevada Divison of Military Retirement Benefits In Divorce Section XI Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Initial Petition for Return The Marren and Page Case List Peardon v Peardon Todkill v Todkill Cord v Co New Uniform Child Abduction Prevention Act UCAPA Division of Military Retirement Benefits in Divorce Section II Subsection A In Search of a Coherent Theoretical Model for Alimony Section I An Introduction to Pensions in Nevada Divorce Law Section I The Marren and Page Case List Johnson v Johnson Pereira v Pereira Van Camp Valuation of Military Retirement Benefits Legal Authority for Use in Requesting Fees in a Paid Case The Marren and Page Case List Mack Ashlock Legal Authority For Use in Requesting Fees in a Pro Bono Case available at lvfamilylawyer.com by clicking above. 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