English v. English

12 Citing cases

  1. Montoya v. Sasso (In re Sasso)

    560 B.R. 801 (Bankr. D.N.M. 2016)   Cited 1 times
    Observing that "New Mexico is a community property state."

    Social security benefits are generally considered separate property. SeeEnglish v. English, 118 N.M. 170, 175–76, 879 P.2d 802, 807–08 (Ct. App. 1994) ("Social security benefits are considered separate property and cannot be used to set off an equal distribution of community property upon divorce.") (citation omitted); Trinosky v. Johnstone, 2013 WL 4515931 at *5 (N.M. App. 2013) (observing "that social security benefits are generally separate property absent transmutation") (relying on English, 118 N.M. 170, 879 P.2d 802 ). See also, In re Marriage of Peterson, 243 Cal.App.4th 923, 197 Cal.Rptr.3d 588 (Ct. App. 2016) (determining that federal social security law preempts state community property law, and that social security is separate property under federal law); Luna v. Luna, 125 Ariz. 120, 123, 608 P.2d 57, 60 (Ct. App. 1979) (holding that "the Social Security disability benefits received by petitioner are his separate property and no offsetting award ban be made to respondent/appellee.").

  2. Montoya v. Sasso (In re Sasso)

    Case No. 7-12-14564 JA (Bankr. D.N.M. Apr. 14, 2016)

    Social security benefits are generally considered separate property. See English v. English, 118 N.M. 170, 175-76, 879 P.2d 802, 807-08 (Ct.App. 1994) ("Social security benefits are considered separate property and cannot be used to set off an equal distribution of community property upon divorce.") (citation omitted); Trinosky, 2013 WL 4515931 at *5 (observing "that social security benefits are generally separate property absent transmutation") (relying on English, 118 N.M. 170, 879 P.2d 802). "Once initial legal status of property is determined, a change in that status is a transmutation issue which must be proven by clear, strong, and convincing evidence."

  3. Stanley v. Stanley

    956 A.2d 1 (Del. 2008)   Cited 6 times

    At least eight states have concluded that they cannot be considered. See Johnson v. Johnson, 726 So.2d 393, 396 (Fla.Dist.Ct.App. 1999); In re Marriage of Crook, 211 Ill.2d 437, 286 Ill.Dec. 141, 813 N.E.2d 198, 204 (2004); In re Marriage of Berthiaume, 1991 WL 90839 (Minn.Ct.App.); English v. English, 118 N.M. 170, 879 P.2d 802, 808 (Ct.App. 1994); Wolff v. Wolff, 112 Nev. 1355, 929 P.2d 916, 921 (1996); Olson v. Olson, 445 N.W.2d 1, 11 (N.D. 1989); In re Marriage of Swan, 301 Or. 167, 720 P.2d 747, 752 (1986); Reymann v. Reymann, 919 S.W.2d 615, 617 (Tenn.Ct.App. 1995); Mack v. Mack, 108 Wis.2d 604, 323 N.W.2d 153, 157 (1982). 439 U.S. 572, 588, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979).

  4. Webster v. Webster

    716 N.W.2d 47 (Neb. 2006)   Cited 19 times
    In Webster v. Webster, 271 Neb. 788, 796, 716 N.W.2d 47, 54 (2006), we stated that 42 U.S.C. Β§ 407(a) (2000) β€œpreempts state law that would authorize distribution of Social Security benefits, and that Social Security benefits themselves are not subject to direct division in a dissolution proceeding.

    These courts have accordingly found impermissible any consideration of Social Security disparity in the property division of divorcing parties. See, e.g., Cox v. Cox, 882 P.2d 909 (Alaska 1994); In re Marriage of Hillerman, 109 Cal. App. 3d 334, 167 Cal. Rptr. 240 (1980); In re Marriage of Crook, 211 Ill. 2d 437, 813 N.E.2d 198, 286 Ill. Dec. 141 (2004); Wolff v. Wolff, 112 Nev. 1355, 929 P.2d 916 (1996); English v. English, 118 N.M. 170, 879 P.2d 802 (N.M. App. 1994); Olson v. Olson, 445 N.W.2d 1 (N.D. 1989); Swan and Swan, 301 Or. 167, 720 P.2d 747 (1986); Reymann v. Reymann, 919 S.W.2d 615 (Tenn. App. 1995). In In re Marriage of Crook, the court explained:

  5. Morris v. Brandenburg

    356 P.3d 564 (N.M. Ct. App. 2015)

    Appellate courts treat claims made in the district court but not pressed on appeal as abandoned. English v. English, 1994–NMCA–090, ΒΆ 14, 118 N.M. 170, 879 P.2d 802. And the law requires that courts avoid reaching constitutional questions that need not be decided.

  6. Morris v. Brandenburg

    2015 NMCA 100 (N.M. Ct. App. 2015)

    Appellate courts treat claims made in the district court but not pressed on appeal as abandoned. English v. English, 1994–NMCA–090, ΒΆ 14, 118 N.M. 170, 879 P.2d 802. And the law requires that courts avoid reaching constitutional questions that need not be decided.

  7. Trinosky v. Johnstone

    No. 31,594 (N.M. Ct. App. Jul. 17, 2013)   Cited 2 times
    Observing "that social security benefits are generally separate property absent transmutation"

    Generally, "[s]ocial security benefits are considered separate property." English v. English, 1994-NMCA-090, ΒΆ 20, 118 N.M. 170, 879 P.2d 802. To the extent that finding of fact number 28 does not acknowledge that social security benefits are generally separate property absent transmutation, it may be incorrect.

  8. Giovanetti v. Uzueta

    NO. 30,703 (N.M. Ct. App. Apr. 9, 2012)

    Respondent's filing of her requested findings and conclusions after the district court had already entered its final order thwarted the purposes of the preservation rule that the district court be timely alerted so that it could avoid or correct error and that Petitioner have the opportunity to respond to Respondent's position for the benefit of the district court. Cf. English v. English, 118 N.M. 170, 174, 879 P.2d 802, 806 (Ct. App. 1994) (holding that the wife had preserved issues raised in her requested findings and conclusions filed after the court's first supplemental judgments because the court had withdrawn its first supplemental judgment and the wife's appeal was from the second supplemental judgment). Moreover, Respondent's supplemental requested findings and conclusions were not timely.

  9. Gilmore v. Gilmore

    147 N.M. 625 (N.M. Ct. App. 2009)   Cited 17 times
    Recognizing waiver by conduct in divorce litigation

    The result of that calculation is then multiplied by the total amount of retirement benefits and then that number is divided by two." English v. English, 118 N.M. 170, 176, 879 P.2d 802, 808 (Ct.App. 1994). The "ratio of community service years to total service years is multiplied against the amount of benefit the participant receives at retirement . . . even though that date may be after the divorce."

  10. In re Matter of Overby

    No. A04-174 (Minn. Ct. App. Sep. 14, 2004)

    A few foreign authorities support this position, requiring a former spouse's share of pension income to be based on a single-life annuity. See, e.g., Potts v. Potts, 790 A.2d 703, 719-20 (Md. Ct. Spec. App. 2002); English v. English, 879 P.2d 802, 807 (N.M.Ct.App. 1994); Ferriera v. Ferriera, 490 N.Y.S.2d 389, 391 (N.Y.App. Div. 1985). But under ERISA, a survivorship annuity is presumed and cannot be waived without the consent of the recipient's spouse.