Retirement-division case law

Brian and Bryanna Ho were married for nearly seven years and had two young children. Both filed for divorce in October 2022, and their cases were combined. During the marriage, Bryanna stayed home to care for the children while Brian, a registered nurse, was the primary earner. The couple agreed on joint legal and physical custody of the children, so custody and child support were not part of this appeal. The appeal focused on two money issues: how the court divided the couple's property and how it calculated alimony (support payments from one former spouse to another). The first issue involved a Fidelity retirement account. During the marriage, Brian took out about $24,000 from that account (in two withdrawals of $12,500 and $17,500) and moved the money into the couple's joint Wells Fargo account. He testified he used the money to pay off shared credit card debt, and Bryanna did not dispute that. After the withdrawals, the account was worth roughly $2,486.31. The trial judge, however, found there was "no proof" of where the money went, called the withdrawals "unilateral and unsupported," and decided to treat the account as though it still held its pre-withdrawal value of $30,000 when dividing the property. To keep the split even, the court then shifted $10,686 of the marital home's equity from Brian to Bryanna. Notably, the same court also expressly found that neither spouse had committed "marital waste." The Court of Appeals held this was contradictory. If the court found no waste, then the withdrawn money was presumed spent for the benefit of the marriage (here, to pay off community debt). A community asset must be valued as of the date the divorce decree is entered - which was about $2,486.31, not the pre-withdrawal $30,000. By valuing the account at $30,000 without finding waste, the court effectively penalized Brian for waste it had said did not exist. The appellate court reversed this part and sent it back for a proper valuation and recalculation of the property division. The second issue was alimony. Bryanna asked for alimony so she could finish her education, explaining she had stayed home by agreement during the marriage. The trial court awarded her $1,650 per month for three years. In doing so, it decided Brian was capable of earning $12,680 per month - the monthly average from his 2022 tax return - even though his most recent 2023 financial disclosure showed a much lower gross monthly income of $7,271.16 plus small, occasional overtime. The court found Brian's explanation for why he stopped working overtime (the end of pandemic bonuses, more nurses hired, and his new custody schedule) not credible, and concluded he was reducing his income to lower his support obligations. The Court of Appeals agreed the trial court could award alimony and had properly analyzed the required statutory factors. But it found the *amount* was not supported by substantial evidence. The court had effectively added about $5,000 per month of "imputed" (assumed) income to Brian's figure without identifying how much of that was supposed to be overtime versus regular pay, and without evidence showing Brian could actually work that much overtime given the end of pandemic conditions and his new parenting duties. The appellate court also pointed out a factual mistake: the trial court described Brian's parenting time as a flexible "visitation" schedule, when in fact he had been awarded joint physical custody, which limited his availability to pick up extra shifts. Because the trial court did not properly account for Brian's changed circumstances or his actual ability to pay, the appellate court reversed the alimony amount and sent it back for reconsideration. Because it reversed the underlying rulings, the court also reversed the order requiring Brian to pay $4,245 of Bryanna's attorney fees.

Tarik Hacham and Dounia Sebai married in 2011 and had two children. In 2020, during a period of marital strain, the family took an extended trip that ended in Morocco. There, after a heated argument, Tarik took Dounia's and the children's passports and refused to return them. Tarik filed for divorce in a Moroccan court, which denied his requests to bar the children from leaving Morocco and ordered him to return the passports or face a daily fine. He did neither. Dounia, meanwhile, filed for divorce in Nevada and obtained an emergency order allowing her to get temporary replacement passports; she returned to Las Vegas with the children. The Moroccan court later issued a divorce decree awarding Dounia primary custody. Back in the United States, Tarik at first lived in Arizona and, according to the opinion, exercised less than his agreed parenting time or none at all before moving to Las Vegas in September 2022. During the Nevada divorce case, a discovery commissioner found that most of Tarik's responses to Dounia's requests for financial information were inadequate and that he had not acted in good faith. The commissioner ordered him to fully comply by a deadline or face a "negative inference" penalty - meaning that any information he withheld would be treated as supporting Dounia's side of the case. The district court adopted that order without objection from either party. After a trial, the district court awarded the parties joint legal custody but gave Dounia primary physical custody, finding that the statutory "best interest of the child" factors were either neutral or favored her. The court also ordered the Moroccan apartment sold with the proceeds split equally, and ordered Tarik to pay Dounia an equalization payment of roughly $51,000 because about $102,000 of the $160,000 he had withdrawn from his 401(k) retirement account - money both sides agreed belonged to the marital community - could not be traced to legitimate community expenses. Throughout the case, the court repeatedly questioned Tarik's credibility, noting contradictory statements and testimony belied by documents in evidence. On appeal, the Court of Appeals rejected all three of Tarik's challenges. First, it refused to consider his argument that the Moroccan decree - which he claimed favored Dounia solely because she is the children's mother - violated his equal protection rights, because he never raised that argument in the district court and did not cogently argue it on appeal. In any event, the court concluded the custody decision rested on a comprehensive best-interest analysis in which the Moroccan decree was only one factor. Second, the court held the negative inference did not violate Tarik's due process rights, because he had specific notice at the discovery hearing that withheld information would be construed against him and had time to comply before the penalty took effect; and it held the district court properly treated the Moroccan apartment as community property, since Tarik's only support for his separate-property claim was a bare statement that he "bought a condo in 2008 prior to the marriage," with no documentation. Third, the court upheld the 401(k) ruling, because Tarik's evidence traced only about $57,000 of the $160,000 to community obligations, leaving roughly $102,000 unaccounted for. The court also held that Tarik waived his argument about the tax consequences of the 401(k) withdrawal by not raising it at trial.

Milan Rupel and Theresa Galten married in 2001. In July 2017, Galten filed for divorce, raising only issues about how to divide the couple's debts and assets. The case went to a five-day bench trial (a trial decided by a judge rather than a jury) in 2019. After the original judge retired, a new judge entered a divorce decree in February 2021 that largely repeated the earlier findings. Both sides appealed. Several disputes were at the center of the case. First, Rupel had transferred $90,550 he inherited from his mother into a shared "community" bank account. At trial, both spouses agreed (stipulated) that this money had become community property - meaning property owned jointly by the marriage. But the district court instead labeled the transfer "marital waste" (spending or destroying marital money for a selfish purpose unrelated to the marriage) and awarded Galten half of that amount ($45,275) as a separate award. The Court of Appeals found this was a mistake: because the money was community property to be split evenly, giving Galten a separate $45,275 award and then also splitting the account meant she effectively received an extra $45,275. The court reversed that award and directed the district court to simply divide the account equally. Second, the couple disputed the value of an investment called the Kai-Zen Plan, a premium-financed retirement plan whose future value could only be estimated. Each side's financial expert gave a value - Galten's expert said about $405,531, Rupel's expert said about $143,714 (or $148,714, as also stated in the opinion). The district court instead used $554,902, a figure that came from a years-old projection on a trial exhibit that itself said the value was not guaranteed. The Court of Appeals held that relying on that outdated estimate was an error and sent the valuation back to the district court for more fact-finding. Third, there was a bank account in Galten's name that held $63,789.67 before the marriage. Community funds were later added to it. The district court found the pre-marriage amount was Galten's separate property, but it wrote $67,789.67 in the decree - $4,000 more than the record supported. The Court of Appeals agreed this was a clerical error and sent it back to be corrected, but otherwise upheld the finding that the original amount was Galten's separate property. The court rejected the parties' other arguments. It held that money Rupel spent maintaining his separate vehicles, and cash he withdrew after the divorce filing for meals, haircuts, massages, and similar expenses, was not marital waste, because there was enough evidence supporting the district court's findings. It held that the district court was correct not to enforce a supposed agreement to end the community on December 31, 2019, because the emails and testimony showed the spouses never actually agreed on the essential terms. It held that Galten did not prove Rupel earned an extra $100,246 in 2016, since Rupel and his accountant testified that figure resulted from a reporting error later corrected. And it rejected Galten's argument that the court lacked jurisdiction, concluding the decree was a final judgment.