OVERVIEW OF DIVORCE
Filing for divorce can be one of the most stressful times anyone will experience. But, before deciding to go down this path, it is best to learn and understand your legal rights and the divorce process in general. It is always recommended to consult with an attorney if you have any questions and/or concerns regarding your legal rights and options.
WHO CAN GET DIVORCED IN NEVADA
One spouse (or both) must live in Nevada for at least 6 weeks before filing for divorce, and intend to remain here indefinitely. A friend, family member, or co‑worker will have to sign an affidavit stating under penalty of perjury that they know that the spouse is indeed a Nevada resident.
TYPES OF DIVORCE
• Joint Petition (Uncontested) – A Joint Petition divorce means the married couple petitions the court for a divorce together. They both sign and file the Joint Petition for Divorce as a simplified, uncontested or no‑fault divorce. They generally agree to proceed with the divorce in a collaborative manner, without major disputes over fault, property division or child custody. Many couples file a settlement agreement with their petition. The judge must review and approve the joint petition and any attached settlement agreement before he/she enters a divorce decree, or final dissolution of marriage. This is the quickest and simplest way to obtain a divorce in the State of Nevada. There typically is not a court hearing for this type of divorce.
• Complaint for Divorce (Contested) – If the spouses cannot agree on all the terms of the divorce, one spouse can file for divorce separately by filing a “Complaint for Divorce.” The person who files for divorce is the “plaintiff” and the other spouse is the “defendant.” The plaintiff’s complaint for divorce will list what the plaintiff would like out of the divorce, and the defendant can respond to the divorce by filing an “Answer and Counterclaim” stating what he or she wants out of the divorce.
THERE ARE FOUR (4) MAJOR ISSUES THAT THE COURT WILL DECIDE DURING A DIVORCE.
• Termination of the marriage.
• Parent/Child issues – child custody, child support and visitation
• Division of community assets and debts
• Alimony (spousal support)
- Termination of the Marriage
Nevada is a “no fault” divorce state, which means the person asking for a divorce does not have to prove that anybody did anything wrong to cause the divorce. A person asking for divorce only needs to claim that the parties are “incompatible,” meaning you just don’t get along.
- Parent/Child issues – Child Custody, Child Support and Visitation
Children born during a marriage are presumed to be the children of the husband so generally, paternity is already established and the court will then proceed to deal with custody, visitation and child support issues. Local rules require that all contested child custody issues be resolved by the court prior to the setting of a trial date on property, debt and alimony issues.
• Legal Custody gives a parent the right to make long-term decisions about the raising of a child, and key aspects of the child’s welfare ‑‑ including the child’s education, medical care, dental care, and religious instruction.
In most child custody cases, legal custody is awarded to both parents (called “joint legal custody”), unless it is shown that one parent is somehow unfit, or is incapable of making decisions about the child’s upbringing. A history of drug abuse, domestic violence, or child neglect would play a role in this decision, which is focused on what’s best for the child (not the parents).
• Physical Custody is a parent’s right to have the child reside with him or her. Physical custody may be granted solely to one parent. It is rare for a parent to have sole physical custody of a child, however, unless the court finds his or her co‑parent to be unfit. Parents may also share physical custody evenly, or the child may reside with one parent the majority of the time. If the child resides with one parent more often than the other, the home of the parent the child resides with more frequently will generally be considered the child’s primary residence.
• Visitation describes the time each parent has with the child(ren) on a pre-arranged schedule. There is no correlation between child support and visitation. A custodial parent may not withhold visitation because the non‑custodial parent is delinquent on child support. Specificity is important in visitation schedules to ensure clarity in the event law enforcement is required.
• Child Support. Nevada law contains specific guidelines for the correct amount of child support to be awarded and is determined by statutory formulas relating to the non‑custodial parent’s gross income. In other words, if one party has sole or primary physical custody, the non‑custodial parent pays child support at a percentage of his or her gross monthly income as follows: NRS 125B.070:
• 1 child, 18% of gross monthly income;
• 2 children, 25% of gross monthly income;
• 3 children, 29% of gross monthly income;
• 4 children, 31% of gross monthly income;
• For each additional child, an additional 2% of the parent’s gross monthly income will be added.
The minimum amount of support that will be awarded is $100.00 per month/per child regardless of income (unless there is a specific court order stating otherwise). In Nevada, either parent may be ordered to pay temporary or permanent child support. Temporary support is usually only for the time while the custody, divorce or separate maintenance action is pending.
- Division of Community Property and Debt.
Nevada is a community property state. Meaning marital assets are owned by both spouses equally 50/50. Community property begins at the marriage and ends when the couple physically separates with the intention of not continuing the marriage. So, any earnings or debts originating after this time will be separate property.
Any assets acquired before the marriage are considered separate property, and are owned only by that original owner. A spouse can, however, transfer the title of any of their separate property to the other spouse (gift) or to the community property (making a spouse an account holder on bank account). Spouses can also comingle their separate property with community property, for example, by adding funds from before the marriage to the community property funds.
Spouses may not transfer, alter, or eliminate any whole piece of community property without the other spouse’s permission, but can manage their own half. However, the whole piece includes the other spouse’s one half interest. In other words, that spouse cannot be alienated from the one half that belongs to them.
Community property includes but is not limited to bank accounts, personal property, businesses, real property (house, commercial buildings, land), stocks, bonds, retirement plans, retirement pensions and plan(s), debts, vehicles and valuable collections.
Property and debts that typically get divided during a divorce are:
• Bank accounts
• Houses and mortgages
• Household items and furniture
• Cars and car loans
• Credit card balances
• Tax debts
• Pensions and retirement accounts
• A business owned by a spouse
- Alimony (spousal support).
Alimony is financial support made to a spouse during and after a divorce. This is separate from any child support payments that need to be made due to the child custody situation.
Alimony is awarded on a case‑by‑case basis in Nevada, and there is not a set formula that courts must use when calculating awards. The Nevada State Bar has created a calculation system (the “Tonopah Formula”), but its application isn’t mandatory. Instead, the courts evaluate a series of factors:
• Each spouse’s financial resources,
• The length of the marriage,
• Each spouse’s age and health,
• Each spouse’s earning capacity, occupation, and income,
• Each spouse’s work experience, education, and marketable skills,
• The time and cost of education and training you need to find work,
• Your standard of living while married,
• Your contribution to the marriage (including household responsibilities and child care), and
• How marital property is distributed during the divorce.
PEOPLE OFTEN WONDER HOW LONG THE DIVORCE PROCESS WILL TAKE.
There is no easy answer to that question, since all cases are different. If you and your spouse can agree to most or all of the terms of your divorce, a divorce can be finished fairly quickly. If you and your spouse cannot agree on very many things, you may have to go to court several times before the divorce can be finalized.
If you’re considering filing for a Divorce…We Can Help!
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