Las Vegas Divorce & Family Law Attorney
This article is our gift to you. It’s 8,000 words of what you need to know about a divorce and other family law matters in Nevada. Reading this article is like having a family law attorney consult, in your living room, for three hours. The article will provide you a solid start to understanding the laws, rules and attitudes of divorce courts. Don’t have time to read all 8,000 words, we understand. Then use the quick links to skip to a section, or schedule a consult one of our Las Vegas divorce lawyers & Nevada family law attorneys.
- Jurisdiction – Who can sue for divorce in Nevada?
- Grounds for Divorce – Do you need a reason to file divorce?
- Annulment v. Divorce – What are grounds to void the marriage?
- Legal Separation – Is legal separation simpler or easier?
- Uncontested Divorce – We both agree to the divorce?
- Common Law Marriage – We are not married.
- Four Areas of Divorce – Only certain issues are relevant in court.
- Filing Divorce Complaint – What forms are used to start the divorce.
- Divorce Motions – What is a motion?
- Temporary Orders – I can’t wait for 6 months to get a divorce.
- Case Management Conference – What is the first hearing in divorce court?
- Discovery – How do I get documents or prove they are hiding assets?
- Divorce Trial – What happens during trial?
Before getting into any of the other issues involved with a divorce in Nevada, the first question to consider is whether Nevada has jurisdiction over your divorce. Another way to look at the question of jurisdiction is to ask whether, if you were to file for divorce in Nevada, the court would actually have the authority to grant the divorce. The Nevada Revised Statutes (NRS), which is the laws Nevada judges, and divorce lawyers must follow, contain the majority of the direction needed in order to make this first determination of a divorce.
The first issue, Jurisdiction, is addressed in NRS 125.020, which states that the court will have jurisdiction if the cause for divorce accrued in Nevada, if either the plaintiff or defendant reside in Nevada, if the parties most recently cohabitated in Nevada, or if the Plaintiff resided in Nevada for the six-week period immediately prior to filing the complaint. In the majority of cases, the issue will be resolved based upon the residence of one of the parties.
To assert residency, more is required more than simply stating that one party resides in Nevada. Specifically, the courts require “corroboration of the evidence.”
For example, in the case of Vaile v. District Court, the husband, arrived in Las Vegas on July 9, 1998. On July 14, 1998, he signed a verified complaint for divorce alleging that he was a resident of Nevada, had been physically present in Nevada for more than six weeks prior to filing the complaint, and that he intended to make Nevada his home for an indefinite period of time. Eight days later, on July, 22, 1998, husband left Las Vegas for a brief vacation and then returned to his job and home in London. Clearly, the husband’s allegations that he was residing in Nevada were untrue. However, the court, without a hearing, took husbands assertions regarding residence as true and entered a decree of divorce. The Supreme Court of Nevada, in reversing the lower court’s determination of residency, defined the word “resided” as carrying with it the idea of permanency and continuity. It does not mean living in one place and declaring residence in another, which is what husband did in this case.
Thus, it is important to understand what residency means and that it can be corroborated before basing jurisdiction on residency of one of the parties. Most times, the corroboration is handled through a form, called an Affidavit or Resident Witness.
Grounds for Divorce
Once jurisdiction has been determined, it is then necessary to look at whether the parties have grounds to obtain a divorce in Nevada. In the complaint for divorce, a party must set forth the basis or “grounds” for a divorce.
In Nevada, there are three grounds for divorce. First, a Las Vegas divorce may be had if one spouse is determined to have been insane for a minimum of two years leading up to the commencement of the divorce action. Secondly, if the spouses have lived separately and apart for one full year without cohabitation, the court has discretion to grant a divorce. Thirdly, and the grounds upon which the vast majority of divorces are sought in Nevada, is for incompatibility between the parties. You will often see this third ground written, as “irreconcilable differences”.
Most people seeking a divorce find the allegation of incompatibility to be the most applicable and convenient of the three grounds and it does not require any further explanation of the reasons the parties are incompatible. In fact, as will be discussed in further detail below, since Nevada is a “No Fault” divorce state, there are very few reasons why alleging specific facts of incompatibility would even be relevant to a divorce proceeding under the incompatibility ground for divorce.
Annulment Versus Divorce
For some parties, and in certain very specific cases, an annulment may be a more desirable way to end a marriage. An annulment may be granted in a case in which the marriage is “voidable” under the law. This is not to be confused with marriages that are void from their inception and do not require a decree of annulment. Marriages which are void are those where there is consanguinity (a certain degree of blood relation) between the parties, or where either party still has a living spouse. NRS 125.290. These marriages are considered to be void without a decree of divorce or annulment.
There are four causes for annulment in Nevada. As specifically set out in the NRS, they are: (1) Lack of consent of parent or guardian; (2) Want of understanding; (3) Fraud; and (4) Grounds for declaring a contract void in equity.
A person less than 16 years old can only marry in the State of Nevada if they have the consent of a parent or legal guardian and they obtain authorization from a district court in the State. If a parent or guardian gives consent, the court may authorize the marriage in extraordinary circumstances if the court also finds that the marriage will serve the person’s best interests. Where the parties married without the requisite consent of a parent or guardian, the marriage can be annulled if the party who failed to obtain the consent seeks an annulment. However, if the person continues to freely cohabitate as husband and wife after reaching 18 years of age, then they will not be able to obtain an annulment based upon their being under the age of 16 at the time of the marriage.
“Want of Understanding” is another way of saying that parties must have mental competency to marry. If this mental incompetency prevented a party from assenting to the marriage, a court may nullify the marriage. “Want of understanding” is also a way of saying that parties didn’t clearly make their expectations from the marriage known to one another such as where they would reside after the marriage or whether either of them wished to have children. This is different from fraudulently concealing these marital expectations as is discussed below.
A marriage can also be annulled if a spouse can prove that his or her consent to the marriage was gained by fraud by the other party. This can be difficult to prove and it is very important that a person no longer cohabit as husband and wife with their spouse after they become aware that their spouse induced them to consent to the marriage through the disclosure of fraudulent or untrue information. An example of such a situation would be where a prospective husband wanted to have children and his prospective wife agreed. However, at the time the prospective wife told prospective husband she wanted to have children with him, she concealed from him that she had had a hysterectomy and could not conceive a child. Based upon prospective husband’s belief that they are going to have children together, the parties marry and husband believes they are trying to conceive a child. Wife eventually confides to husband the truth about her physical condition. If husband moves out and seeks an annulment, he would need to prove by clear and convincing evidence that wife concealed her inability to conceive a child at the time he married her.
A marriage, which in many ways is another form of contract, may also be annulled for any of the reasons that a court would be allowed to annul a contract or declare a contract void either in law or in equity. There is no case law on this particular ground for annulment and it is not commonly utilized in seeking an annulment.
Unlike in a divorce, which requires either one or both parties to be residents of the State of Nevada, NRS 125.360 allows for the annulment of a marriage if one of the above conditions exists as long as the marriage was contracted in this State. Thus, if two parties met in Las Vegas while on vacation from different States, and without any understanding of one another or what they each expected from the marriage, went to a chapel on a whim and got married, then realized that neither party was going to move to the other’s State or that they had no actual understanding of what they were doing, they could have the marriage annulled in Nevada even though neither of them resides here.
If the marriage was not entered into in Nevada, then jurisdiction must be established in the same manner as a divorce. Essentially at least one of the parties must be a resident of Nevada, and, in the case of the Plaintiff, must be a resident for at least 6 weeks immediately preceding the filing of a complaint for annulment.
In some cases, a married person may desire to file for a “legal separation” rather than a divorce. In Nevada, when a spouse seeks a legal separation, this means that they are seeking an order from a court defining the rights and obligations of the parties to one another when they are living separately but not getting a divorce. This is called an action for “Separate Maintenance.”
When can a person file a complaint for separate maintenance? Nevada law states that an action for permanent support and maintenance may be brought for the same reasons as a person may file for a divorce. A person may also file for separate maintenance if their spouse has deserted them and the desertion has continued for a period of ninety days. In that case, the deserted spouse may file a complaint for separate maintenance in order to obtain an order from the court requiring their spouse to provide support and maintenance for himself or herself and their children. NRS 125.190.
Just as in a case for divorce, the court may require one party to pay some or all of the attorney’s fees of the other party in order to allow them to participate in the court proceedings on an equal footing as the other party. Further, the court may make determinations regarding the community property of the parties and order one party to pay spousal support and/or child support to the other party.
The ”Uncontested Divorce”; aka Joint Petition
If spouses can agree upon the terms of their divorce, Nevada allows for them to file a Joint Petition for divorce. The requirements and procedure for this summary divorce proceeding are set forth in NRS 125.181 to 125.184. Just as in a case where a party files a complaint for divorce, in order to get a divorce through this summary proceeding, Nevada must have jurisdiction. The jurisdictional requirements are set forth in more detail in the section on Jurisdiction, above, but primarily will require that at least one party be a resident of Nevada for a period of at least six weeks prior to filing the petition.
Once jurisdiction has been established, the parties will have to show that they have lived separate and apart for one year, or that they are incompatible in marriage. The petition must state whether there are minor children and if so, must set forth an agreement regarding the custody and visitation of the children as well as which party will pay child support and the amount of that support. If the parties have property, they will need to set forth their specific agreement regarding how that property will be divided as well as how they will divide any community debts, if any.
The parties will also need to address spousal support by either waiving it, or setting forth which party will pay spousal support to the other party, the amount of the support and how long the payments will be made. The wife will also need to state whether she would like to be restored to a former legal name.
This summary divorce proceeding is often the most economical way for parties to get divorced and most useful in cases where parties have not been married for a long period of time, don’t have children and have very little community assets and debts to dispose of. However, parties who have been married for a long period of time and accumulated a lot of assets and/or debts can often find a way to agree upon how they want to accomplish and equitable division. Furthermore, even if children are involved, parents can often come to an agreement as to the custody and visitation schedule without needing court intervention. Sometimes parties might seek the help of a neutral mediator in order to make sure that they have adequately and fairly addressed all of the issues that need to be resolved before preparing and filing their petition.
If the parties are able to come to an agreement, they, or their Las Vegas family attorney(s), can prepare a joint petition and submit it to the court with all of the other required paperwork. The Las Vegas divorce can be finalized without the necessity of ever having to go to court if it is done properly.
Common Law Marriage
Though the term “Common Law Marriage” is one that most people have heard of and believe they understand, it is important to know that Nevada has not recognized common law marriage since March 29, 1943. The Nevada Legislature defined a legally valid marriage as a civil contract to which the parties consent and which must also be solemnized. Therefore, it is necessary to obtain a marriage license and to have an officiant solemnize the marriage in order for it to be valid in Nevada. NRS 122.010. Common Law marriage, where parties simply say that they want to be married and hold themselves out to others as being married is not valid in Nevada.
However, even though Common Law marriage is not recognized in Nevada, there are situations in which parties who were not legally married such as in the case of a void marriage, may still be able to have a court enforce certain rights and liabilities incurred as a result of such a relationship once such relationship has come to an end. For example, a party whose marriage has been annulled may still have rights to property acquired during the relationship.
One such remedy is called the “Putative Spouse Doctrine.” a putative spouse is entitled to many of the rights of a legal spouse. For relief to be granted under the doctrine, the parties must show that they participated in a proper marriage ceremony and that one or both of the parties believed in good faith that no impediments prevented the marriage from being valid and proper. See Williams v. Williams, 120 Nev. 559, 97 P.3d 1124 (Nev., 2004). In the Williams case, the Supreme Court of Nevada found that the parties entered into the marriage in good faith and with the belief that there was no legal impediment to the marriage. However, when they discovered after 27 years of marriage that wife was not divorced from her previous husband, the marriage was void and husband’s complaint for annulment was granted.
Even though the marriage was void, the wife was a putative spouse and, in fairness, was entitled to share in the division of the property acquired during the marriage just as if they had been legally married. The parties believed they were married for 27 years, raised two children together and believed that their property was community property, therefore the same laws that apply to the division of community property in a legal marriage were applicable here. However, the Court did not extend the relief granted under this doctrine to allow for an award of alimony.
When can a court award property acquired by non-married parties who cohabitated but are not married? In these cases, the courts may be able to apply basic contract principals in order to determine the parties’ respective interests in property acquired while they were cohabitating. In 1984, The Supreme Court of Nevada was faced with a case involving a couple who had cohabitated for 23 years. The couple had three children during the course of their relationship. They had also pooled their money and purchased assets together. The residence was titled in both of their names as husband and wife, even though they were not married. After the couple parted ways, the “wife” filed an action to determine her interests in the property.
After examining the facts and looking to case law in California and other jurisdictions, the court found that, “un-married persons wo are living together have the same rights to lawfully contract with each other regarding their property as do other unmarried individuals. Their agreement may be express or implied, as alleged in the instant case, from the conduct of the parties.” Hay v. Hay, 100 Nev. 196, 678 P2d 672 (Nev., 1984). In effect, the court can look to contract principals and make determinations regarding their rights and obligations as though they are dissolving a business partnership. Though the parties did not enter into a written agreement to acquire property together, the parties’ actions with respect to how they purchased and held their property allowed the court to imply that they had a contract. Courts can also employ the doctrine of Quantum meruit, which translates to allowing the division of property or compensation to a party based upon as much as the parties deserve under an implied contract.
In the Hay case, though the Court expressly stated that Nevada did not recognize common law marriage, it was not fair to allow one party to a relationship such as this to abscond with all of the property they had acquire together simply because they were not married. In this case, once the court determined that they had an implied contract to hold their property together as a community, the laws of community property could be applied “by analogy” in determining how to divide the property. It is important to note, however, that this type of implied contract in a relationship between two un-married co-habitants will not be extended to a relationship based upon “meretricious sexual services,” which Black’s Law Dictionary defines as being, “of the nature of unlawful sexual connection.”
The reason Nevada does not recognize common law marriage is because public policy supports marriage and encourages parties to marry, which also allows for more clearly defined rights upon divorce. However, as can be seen, there are times when, in fairness, courts must recognize that denying a party rights to property which they participated in acquiring, is unfair.
Four Areas of Divorce Court Authority;
Generally, when parties go to court to obtain a divorce, they need for the court to make decisions in four main areas: (1) child custody, (2) child support, (3) division of assets and debts, and (4) spousal support. The court will also have the authority to make temporary orders pending the finalization of the divorce as well as order that the wife may take back her maiden or former legal name. Each of these will be discussed in further detail below.
The custody of children as a result of a divorce is of paramount importance to the courts. In general, if the court in the divorce case also has jurisdiction over the children of the parties, then they will also be responsible for determining issues such as custody and visitation of the children. A married parent will need to make sure that they follow the law with respect to the custody of the children and should not leave Nevada with the children until there is an order in place allowing them to do so.
The amount of child support a parent may have to pay can depend upon several factors, including whether the parties have primary or joint physical custody. Nevada has a formula for determining child support. NRS 125B.070 states that the obligation of support shall be calculated as a percentage of the parent’s gross (income before taxes) monthly income. The percentage used is based upon the number of children the parties have.
Division of Assets & Debts
In granting a divorce, the court must make an equal disposition of the community property of the parties. NRS 125.150(1)(b). In theory then, all property acquired during the marriage should be divided equally. However, it is not always that simple and sometimes the court may find a compelling reason to divide the property unequally.
In cases of property requiring a deed, such as a marital residence, if the parties hold the property in “joint tenancy,” this same rule applies. However, if it is possible to trace separate property contributions to that property, such as a down payment made by one party prior to the marriage, or improvements made to the property with one parties’ separate funds, such as an account that the spouse had prior to the marriage which has not been comingled with community funds, then the court can order reimbursement of that spouse’s separate contribution and then equally divide the community’s remaining share of the asset.
Division of property in a Las Vegas divorce can be a very complicated process, requiring the parties to show the source of funds used to obtain the property. When making a determination regarding reimbursement of some or all of a party’s separate property contribution to a community property asset, the court will look at the intention of the parties when they decided to place title to the property in joint tenancy, the length of the marriage, and any other factors presented by the parties which the court deems relevant in making a just and equitable disposition of the property. See NRS 125.150(2)
A court in a divorce proceeding will typically be tasked with deciding whether and how much spousal support is appropriate. Many people believe that spousal support, or alimony, is a given in a divorce case. However, whether a court will order spousal support is discretionary. The law provides that the court may award an amount that appears “just and equitable.” NRS 125.150(1)(b). What is “just and equitable” will vary depending upon the facts of each case.
The courts will usually look to the following factors when determining the issue of spousal support.
- The financial condition of each spouse;
- The nature and value of the respective property of each spouse;
- The contribution of each spouse to any property held by the spouses (either as joint tenants, tenants in common, or as community property);
- The duration of the marriage;
- The income, earning capacity, age and health of each spouse;
- The standard of living during the marriage;
- The career before the marriage of the spouse who would receive the alimony;
- The existence of specialized education or training or the level of marketable skills attained by each spouse during the marriage;
- The contribution of either spouse as homemaker;
- The award of property granted by the court in the divorce, other than child support and alimony, to the spouse who would receive the alimony; and
- The physical and mental condition of each party as it relates to the financial condition, health and ability to work of that spouse.
NRS 125.150(9). A brief look at all of these factors shows that a determination will be different for each case. There is no “formula” as there is when determining child support. Therefore, when preparing for a case involving a request for spousal support, it will be important to present facts that address all of the above factors as well as any other factors that a party believes is relevant to the request for support.
Further, a court has the ability to allow an award of alimony to a spouse to allow them to obtain education or training in order to increase their ability to earn a living and support themselves after the divorce. This type of alimony would be temporary and solely for the purpose of education and training. When considering a request for this type of alimony, the court would look to whether the party from whom a spouse is seeking alimony has obtained greater job skills or education during the marriage and whether the spouse seeking the alimony provided financial support to the other spouse while they pursued and earned the greater job skills and education. NRS 125.150(10). The court may then order the other spouse to pay all or some of the costs associated with obtaining education or job skills depending upon the circumstances. NRS 125.150(11).
Complaint & Answer
To commence a divorce case, the first step is to prepare and file a Complaint. The Complaint must set forth the cause or causes for divorce. This would be one of the causes discussed above, such as incompatibility. The complaint must also state that the court has jurisdiction for the reasons prescribed by statute, such as that the Plaintiff has resided in Nevada for at least six weeks immediately preceding the filing of the complaint. See NRS 125.030.
The party filing the complaint is called the Plaintiff. The Defendant in the case, the party against whom the Plaintiff has filed their Complaint, must be personally served with the complaint.
It is critical for the case to proceed that the Plaintiff take the proper steps to ensure that he or she properly serves the Defendant. Rule 4 of the Nevada Rules of Civil Procedure (NRCP), sets forth the steps that must be followed. First, the Plaintiff must obtain a summons issued by the clerk of the court upon the filing of the complaint. Copies of the summons and complaint must both then be personally delivered to the Defendant by a person over the age of 18 who is not a party to the action. The Plaintiff cannot simply mail the complaint and summons; he or she must deliver the copies to a third party to personally deliver them to the defendant.
Once the Defendant is served with the documents, he or she then has 20 days from that date within which to file an “Answer” to the complaint. In the Answer, the Defendant will admit or deny the Plaintiff’s allegations or, he or she may state that they deny the allegations based upon lack of knowledge or information sufficient to form a belief as to the truth of the allegations. NRCP 8(b). A Defendant may also submit a “Counterclaim” with the Answer, setting forth his or her own allegations against the Plaintiff, which the Plaintiff will then be required to answer.
Nevada law also allows for an additional document to be issued and served upon the Defendant along with the summons and complaint. This document is called a “Joint Preliminary Injunction.” This document is effective against both parties and informs both parties that they are prohibited and restrained from disposing of the joint, common, or community property of the parties, from harassing and committing an assault or battery upon their spouse, children or other relative of the parties and also prohibits one party from taking the children out of the State of Nevada without written consent of the other parent or permission of the court. Once it is served upon the Defendant, he or she is bound by it and the court can punish them with contempt for disobeying it.
Sometimes, a Plaintiff may be unable to locate the Defendant in order to serve him. In other cases, the Defendant might avoid service to such an extent that the process server is unable to serve him or her. In such a case, Nevada allows for the Plaintiff to serve the Defendant by publication. NRCP 4(e)(1). However, a party must have tried all other avenues to locate and serve the Defendant and then set forth all of the measures taken (due diligence) in a sworn affidavit submitted to the court, before the court will issue an order allowing service to be had by publication. The Order will require publication in a newspaper designated by the court and publication must run at least once a week for a period of 4 weeks. Additionally, the court may order publication in a newspaper outside of Nevada if deemed necessary to give reasonable notice to the other party. Finally, the court may also require that the party mail a copy to the Defendant’s last known address. Service will be deemed completed upon the expiration of the four weeks of publication or four weeks after the date of mailing if the court has required mailing.
Change to Maiden Name
If the wife has changed her last name as a result of the marriage, the court has the authority to order that she be restored to her maiden name or a prior legal name. Thus, if the wife desires to have her former name restored, it is essential that she request the court order the change in the decree. NRS 125.130(4). If she fails to do so and then wants to revert to a former name later on, she will have to file a separate change of name petition.
If a Defendant is served, either by personal service or publication, then the clock starts running on the time for them to file and answer. If the twenty days runs and Defendant has not responded, the Plaintiff can then start taking steps to have the court enter a decree of divorce by default. NRCP 55 and NRS 125.123. The Plaintiff must submit an affidavit containing all of the factual allegations in support of the default along with an affidavit of any other person, such as the process server detailing the steps taken to attempt service, the order for publication and proof of publication, as well as affidavit corroborating the residency of the Plaintiff. The Affidavit must be based upon the personal knowledge of the affiant, contain only those facts that would be admissible in evidence if there were to be a trial, contain factual support of all of the allegations therein, and establish that the affiant is competent to testify to the contents of the affidavit. NRS 125.123. If the affidavit in support of the application is sufficient, the court may enter a decree of divorce by default or the court may enter a decree by default after hearing oral testimony.
Once a decree of divorce by default has been entered, it is possible for the defaulting party to later ask the court to vacate or set it aside for certain reasons. It does happen sometimes that a Defendant wasn’t evading service but truly was unaware of the proceedings against him or her. Thus, NRCP 60, sets forth the basis for having a default decree set aside. First, if a defendant was not personally served with the summons and complaint, he or she may petition the court, within six months after the date of service of written notice of entry of the decree to vacate it. The written notice of entry of the judgment is a separate document filed with the court evidencing that the party is mailing an attached copy of the decree to the other party. If a decree is entered by default but the Plaintiff does not then take the extra step of preparing the Notice of Entry of the Decree, mailing it to the defendant and filing it with the court, then the six-month time period has not run.
If, however, the defendant was served with the summons and complaint but failed to answer, it will be much harder to have the decree set aside. The defendant can move for the court to relieve him or her from the judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could have been discovered in time to move for a new trial under Rule 59(b) (which only gives a party ten days after entry of judgment after a trial); (3) fraud (whether heretofore dominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; or, (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that an injunction should have prospective application. If requesting the decree be vacated for the first three reasons above, that request must be brought within 6 months after the proceeding or the date that written notice of entry of decree was served.
Motions During Divorce
In addition to temporary restraining orders discussed above, courts can enter other orders in a Las Vegas divorce case prior to entering the final decree of divorce. A party can request that the court order the other party to pay temporary spousal support, child support, and even request the court order the other party to pay some or all of their attorney’s fees. NRS 125.040(1). It is very common for a party to file a motion for the court to make a temporary determination regarding the custody of minor children as well as award spousal support and attorney’s fees. These types of monetary awards would be beneficial in cases where one party earns significantly more money than the other or where one party has primarily stayed home raising the parties’ children while the other worked.
With respect to a request for attorney’s fees, the court will look to see if there is a disparity in income between the parties. The Supreme Court of Nevada held in Sargent v. Sargent, 88 Nev. 223, 495 P. 2d 618 (Nev. 1972), that a wife must be afforded her day in court without destroying her financial position. This would imply that she should be able to meet her adversary in the courtroom on an equal basis.” Thus, the court recognizes that it would not be fair for the party who earns the greater income to have all of the income at his or her disposal for paying his or her own Las Vegas family law attorney while the other either must borrow from others or sell his or her own property in order to have representation. Even though this case references the wife being able to have her day in court, this case applies equally to both spouses and a wife can be ordered to pay attorney’s fees to her husband if she earns more than him. Further, any time a party files a motion requesting financial relief, the party will be required to fill out an affidavit of financial condition or Financial Disclosure Form, setting forth their financial situation in detail and providing proof of income. See EDCR 5.32.
The law also allows a court to “make any order affecting the property of the parties, or either of them, which it may deem necessary or desirable to accomplish the purposes of this section.” NRS 125.040(2). Motions brought pursuant to this section of the statute are usually seeking relief allowing one party to have temporary exclusive possession of the marital residence. In Clark County, EDCR 5.21 also allows for a party to request exclusive possession of the marital residence and requires such a request to be accompanied by an affidavit upon personal knowledge setting forth the facts and justification for the motion.
Sometimes, when a party commences a divorce proceeding, they need immediate intervention to resolve some issues which cannot wait until a trial. In those cases, NRS 125.050 allows for the court to make a restraining order or any other order that the court deems necessary to prevent an act or conduct which it appears the other party is about to do which would defeat or render any ultimate order less effectual. The party seeking such an order must show that it is probable that the other party is going to take some type of detrimental action in the absence of the court’s intervention. This order would be temporary until the court is able to make a final determination in the case.
Some examples of situations in which a party might want to request a temporary order would be if one party has begun closing out bank accounts or selling assets and the other party wants to ensure those assets are still available for equal distribution later on; or where one party has denied the other access to the community residence and all of their belongings therein. The purpose of seeking an order to remedy this situation would be to prevent or stop such conduct and preserve the status quo during the divorce process.
Case Management Conference
A Case Management Conference, or CMC, is required in every contested divorce case. The court will schedule the CMC within 90 days after the defendant files an answer. Both parties and their attorneys will be required to attend the CMC and discuss the discovery needed in the case. The court will then issue a Case Management Order setting forth the timelines for the parties to participate and complete discovery and any issues necessary to the resolution of the issues in the case. The court will usually give the parties their trial date, which is the day that the parties will present their testimony, witnesses, and documentation supporting their claims to the court and ask the judge to grant them a divorce on the terms they have requested.
Discovery in a divorce case is governed by Rule 16.2 of the Nevada Rules of Civil Procedure (NRCP), which sets forth mandatory pre-trial disclosures that each party must make. The Eighth Judicial District Court Rules (EDCR), in Clark County, have some exemptions to the mandatory pre-trial discovery requirements of NRCP 16.2 and allow for the parties to agree to extend some of the discovery deadlines.
“Discovery” is the term used in a legal proceeding to describe the process of gathering and disclosing information. The discovery “tools” most commonly used to obtain information and facts are Interrogatories, Requests for Admissions, Requests for Production of Documents, Subpoenas, and Depositions. Each of these will be discussed more fully below.
The Rule allowing for Interrogatories is NRCP 33. Interrogatories are written questions one party asks another which he or she must answer in writing and under oath within 30 days. Commonly asked Interrogatories in Divorce cases are questions requesting financial information such as specific information regarding assets and debts. For example, an Interrogatory might request the party list all bank accounts with specific identifying information such as the financial institution(s) where each account is held, the account number(s) for each account, and the name(s) on the account.
Requests for Admissions are governed by NRCP 36. Requests for admissions are different from Interrogatories in that Admissions require that the party either admit or deny a specific factual allegation as opposed to seeking an informative answer to a question. For example, a party may ask the opposing party to admit that he or she transferred money from a particular joint account of the parties to an account in that party’s separate name. Admissions require immediate attention as the failure to respond within thirty days can lead to the admissions being deemed or considered admitted and used against the party who failed to answer.
Requests for Production of Documents are a discovery tool allowed by NRCP 34, which allows a party to request the other party produce documents or permit the inspection of documents, tangible things, and even to request entry to property to conduct an inspection and/or appraisal of the property. In divorce cases, these requests are most commonly used to obtain financial documentation such as bank statements, credit card statements, bills, and investment account statements. A party upon whom these requests are served will also be required to respond within 30 days.
Depositions are governed by NRCP 30, which allows a party to take the testimony of any person, including a party, upon oral examination. The deposition will be transcribed after the person being deposed (the deponent), has been administered an oath that they will testify truthfully. The deposition testimony can then be used at trial if necessary. A party may take the deposition of the other party or any other person. Depositions are useful in determining what a witness named by a party may know about the issues in the divorce. For example, If a party hires an expert witness who reviews information and gives an opinion on a matter relevant to the case, the other party may depose the expert in order to ask questions of that witness prior to trial. If a party wishes to take the deposition of a person who is not a party to the case, it will likely be necessary to issue a subpoena requiring their appearance. A party may take their spouse’s deposition by serving a written Notice giving them not less than 15 days’ notice of the date and time of the scheduled deposition.
Subpoenas can be used for different purposes in the discovery process. It is important to know that there are different kinds of Subpoenas. The first, is a document which commands a person to attend a trial or deposition and to give testimony at a designated place and time. A party may also issue a Subpoena to a person or entity requiring that they produce evidence or permit inspection of evidence. A Subpoena may also be issued which commands a party to appear at a certain time and produce certain evidence at that time. A subpoena must usually be personally served on the person and give them not less than 15 days’ notice of the date and time to appear and/or produce evidence. A subpoena is issued by the Clerk of the Court and failure to obey a subpoena without an adequate excuse can be cause for being held in contempt of court.
Thus, the Rules allow for many different ways for parties to get evidence regarding the marriage, and financial situation of the parties as well as any other issues deemed relevant in a divorce proceeding.
Offer of Judgment
In many cases, one party may believe that they have obtained all of the information they need to have a full understanding of the situation of the parties and how the law would likely apply or what they believe would be a fair resolution. In that case, they may wish to avoid the cost and time of preparing for and conducting a trial. Often, parties can settle all claims related to their property and debts without going to court. One way to try to induce the other side to settle a case before trial is to present them with what is called an “Offer of Judgment.” NRS 125.141 allows a party to submit to the other side a formal proposal to allow a decree of divorce be entered on the terms proposed in the offer regarding the parties’ property rights. This offer can be submitted to the opposing party at any time more than ten days prior to the trial date. The opposing party will then have ten days to accept the offer. If they accept the offer, then the court will enter a decree of divorce incorporating the terms of the offer. If the party does not accept the offer within ten days, the offer is deemed rejected. The offering party is not allowed to enter this offer into evidence at trial; however, the party who rejected the offer is then put in the position of having to achieve a better result at trial. If they do not achieve a more favorable result at trial, they then run the risk of having to pay the offering party’s attorney’s fees and costs related to the adjudication of those property rights incurred after the date the offer was made. It is important to note that such an offer of judgment can only be made relating to the property rights of the parties. Thus, a party cannot make an offer of judgment relating to the custody and visitation of their minor children.
Though most parties generally desire to settle their divorce case without having to go through a trial, if the parties are unable to do so, it is important to understand the process leading up to trial and the trial itself. At the time the court schedules the case for trial, the judge will also set a “Calendar Call,” just prior to the trial date, where the parties and their family law attorneys must appear in court for the purpose of informing the court whether they are ready for trial and if any issues have already been resolved so the judge will know what issues he or she must resolve at trial.
If the parties to a divorce action are unable to resolve all issues prior to the trial date, then they will have to participate in a trial, which involves presenting all testimony and evidence to the judge. Each party will also ask the judge to grant them specific relief. In Nevada, divorce actions are heard only by a judge. Juries do not determine divorce cases. Once the judge has heard all of the evidence, he or she will make orders regarding the issues at trial. These orders will be drafted into a final Decree of Divorce which will be signed by the judge and filed or “entered” by the court.
Even though the Decree is final, there are circumstances under which a party can seek to obtain a different result. Rule 2.24 of the Eighth Judicial District Court Rules provides that any Motion requesting the court rehear and reconsider its prior ruling, must be brought within ten days after service of written notice of entry of the Decree of Divorce.
Additionally, a party may file a Motion for a New Trial or for an Amendment of the Judgement pursuant to NRCP 59 for Irregularity in the proceedings of the court or adverse party, misconduct by the prevailing party, accident or surprise which ordinary prudence could not have predicted or newly discovered evidence which the party could not, with reasonable diligence, discovered and produced at the trial. This type of Motion must also be filed within ten days after service of the Notice of Entry of Decree of Divorce.
If more than ten days have passed, a party may file for relief from a judgment or order pursuant to NRCP 60. A motion under this rule can be brought within six months of service of the notice of entry of decree if the party seeking relief can show: (1) Mistake, inadvertence, surprise or excusable neglect; (2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under NRCP 59(b), meaning within ten days after service of the notice of entry; or (3) Fraud, misrepresentation or other misconduct of the adverse party.
Finally, if none of the above reasons for seeking relief from the Decree are applicable, there is the option of filing an appeal of the case. Nevada has a Court of Appeals and a Supreme Court. An appeal of the decision of the trial court to an appellate court must be based upon an error of law or abuse of discretion. Probably the most important thing for a party to know about an appeal is that the timing of filing the appeal is critical. Rule 4 of the Nevada Rules of Appellate Procedure (NRAP) provides that an appeal from a judgment must be filed within 30 days after the date that written notice of entry of the judgment or order appealed from is served. A party can also appeal from an order granting or denying a motion for a new trial. NRAP 3A.
Once the parties have either settled their case or a judge has made a decision on a divorce case after a trial, a Decree of Divorce must be drafted which contains specific and detailed information regarding the resolution of each issue in the case. The Decree is the official document which governs all the terms of the divorce. The Decree must be signed by the judge and filed with the clerk of the court. It is important for the Decree to be as detailed as possible to avoid possible confusion in the future. If the language is unclear and can be open to different interpretations, this can cause problems down the road for the parties. If disagreements occur the parties could end up back in court requesting the court to construe its decree. After time has passed, it may be difficult for the judge to be able to recall the intentions of the parties and/or the court at the time the Decree was drafted. In that case, if there are two possible interpretations to a judgment, the court will then have to adopt the one which renders it more reasonable, effective, and conclusive, and which makes the judgment comport with the facts of the case. See Murphy v. Murphy, 64 Nev. 440 (1947) and Lindsay v. Lindsay, 52 Nev. 26 (1929). Given that it is usually undesirable to undergo the time and expense of going back to court, it is crucial that both parties fully understand the terms of the Decree at the time it is drafted and entered.
Because an order or decree is not effective until “entered” by the court, as discussed above, there may be situations where a court may need to enter an order “nunc pro tunc,” meaning that the court may change the date the order was entered to an earlier date in cases where the interests of justice require it. The court has the power to enter an order nunc pro tunc, if necessary to correct clerical mistakes. NRS 155.127. The Supreme Court of Nevada has construed the power to enter such orders as fairly broad. For example, in once case the parties to a divorce had gone through a divorce trial and the judge made his ruling. Between the time of the judge’s decision and the Decree being entered by the court, the wife died in car accident. In that case, the husband argued that the wife’s death prior to the entry of the decree invalidated the decree. However, the Supreme Court of Nevada held that since the facts justifying the entry of the decree had been adjudicated during the parties’ lifetimes, it was proper for the court to enter the decree before the wife died.
Enforcement of Orders
Once a Decree has been entered and notice of entry served, it becomes an order enforceable by all legal means. In divorce cases, it is not uncommon for one party to fail to abide by the terms of the Decree, such as failing to pay the child support or spousal support the court ordered them to pay to the other party. In that case, there are remedies.
For enforcement of child support, many parties may avail themselves of the services provided by the District Attorney’s Family Support Division. The District Attorney’s office is able to enforce orders for support through garnishing the wages or bank accounts of the party required to pay.
A party may file a Motion to compel the other party to comply with the terms of the decree, such as paying child support or spousal support in the original divorce case as well. The court retains jurisdiction over cases in order to be able to enforce its decrees and to redress such problems which may arise after the Decree has been entered.
Additionally, the courts have the power to hold a party in contempt for disobedience of an order. The court has the power to hold a party in contempt and order them to pay attorney’s fees to the other party, monetary sanctions, or even order them to serve jail time. Thus, it is important to understand that even though the divorce proceeding may be over, the court still has the power to ensure that the parties comply with the terms of the divorce decree or else face potentially harsh consequences.