When you ask, “what is primary custody?” you are looking at the difference between the two types of physical custody. The first is joint custody. The second is primary custody.
Joint physical custody means that the child spends roughly half their time with each parent. Primary custody is where a child spends more than 61 percent of the time with one parent. For example, if a child spends 4 days a week with one parent and 3 days with the other, that’s still joint custody because it’s less than 61 percent.
The courts here in Nevada prefer joint custody, but they will grant primary custody to one parent if they believe it is in the best interest of the child. You and your divorce lawyer will have to prove those best interest factors.
The court looks into several best interest factors before deciding to award primary physical custody to one parent. The best interest factors are primarily concerned with the child’s development and well-being. The myth of mothers getting primary custody been debunked in recent years.
The judge will consider things like whether one parent will try to keep the child away from the other, domestic violence, and drug or alcohol problems. Sometimes the courts will even look a the wishes of the child if the child is old enough (and mature enough) to make that decision.
At trial, you must present evidence to support your case. Discovery is the process of gathering evidence. It can take many different forms and is a normal part of the divorce process.
Diving into the specifics of “what is discovery in a divorce,” discovery takes many forms. One form is called interrogatories. That is asking yes/no questions of the other side. Your divorce attorney can help with the phrasing of the questions and the right questions to ask. Another is requesting documents. If the other side is not cooperating in a timely manner, then your divorce attorney can send subpoenas to banks, people, and other institutions seeking information.
Each of these forms of discovery is to build up evidence to make your cast to the court.
At a temporary motions hearing, a judge will decide to grant or deny temporary divorce orders that will stand until a judge issues the final divorce orders.
Either party may file a motion for a temporary order. Some of the most common requests are to maintain possession of the marital home, temporary spousal support, and temporary child support. A judge can also set temporary custody orders if the parents cannot agree on a custody schedule. A less typical example of temporary orders is allocating temporary attorney’s fees.
At the temporary motions hearing, both parties will make verbal arguments. The divorce attorneys for both spouses will have already submitted written briefs.
A judge can then decide whether or not to make the temporary awards.
How do you decide what is better for you, divorce or legal separation?
Legal separation is when the court divides your assets and debts. You also determine custody. However, your marriage remains intact in the eyes of the law. Your relationship status is kind of in the middle. You are still married, but not quite in the same way you were before.
Other than that, legal separation is the same as a divorce. Plus you cannot remarry.
There are only a few sensible reasons why someone might choose legal separation over a divorce. The main reason is to keep a spouse’s health insurance. When you legally separate, you can keep your spouse’s healthcare. If you divorce, you cannot.
A legal separation isn’t any less expensive than a divorce. Sometimes it can even cost more if you want to remarry later on. In that case, you would have to return to the courts to file a divorce before you can marry again.
Many people who want a legal separation are actually talking about divorce without saying the word “divorce.”
If you aren’t sure what is best for you, talk to your divorce lawyer about it. They can help you evaluate the pros and cons to decide whether or not a legal separation is right for you.
One of the first questions all divorce attorneys get when someone comes in for a consultation is “Should I file divorce first?”
There are some minor advantages, but by and large, these will not make much of a difference in how the judge rules in your case.
For example, if you and your spouse live in different states, you get to choose where to file for divorce. Different states have different rules. Some states divide assets by equitable distribution, and some do equal distribution. You can select the state with the better rules for your situation.
At trial, the party who filed first gets to speak first and last. They also get to present evidence and call witnesses first and last.
Finally, the most significant potential advantage of filing first is that you get to choose the timing. You can gather all the financial documents and other evidence ahead of time. You also have a chance to mentally prepare yourself, whereas the divorce might come as a surprise to your spouse.
On the whole, these things are minor. Judges and divorce attorneys have to follow the rules set by the state so these will not become significant factors in the outcome of the divorce.
For more in depth information, read Should I File First?
There are a few situations in which the court can order your spouse to pay attorney fees for your divorce lawyer. These situations boil down to substantial differences in income or one spouse acting in bad faith.
If your spouse was the primary breadwinner, then the judge may order them to pay the divorce attorney fees. Keep in mind this could be all or just part of the fees. This can apply if you did not work during the marriage or made significantly less than your spouse. Nevada courts want both spouses to be on equal footing during the divorce process.
Another situation in which we’ve seen judges order one spouse to pay some of the other party’s divorce attorney fees is when one spouse is “acting in bad faith.” This is a legal term for one spouse being unreasonable. Unreasonable could mean needlessly dragging out the process with frivolous motions or untrue allegations. It could also be withholding documentation forcing the other spouse to pay for forensic accounting or to take the uncooperative spouse in front of a judge to force cooperation.
Finally, the other situation is if there is a substantial difference in income and the divorce case goes to trial. Then the judge will sometimes order the spouse with higher income to pay both attorney’s fees. However, most cases settle so this is rare.
Keep in mind that Nevada is a no-fault state for divorce. The judge cannot award attorney fees simply because one party initiated the divorce. For more information, read It’s His Fault, He Should Pay the Attorney Fees.
A couple needs to figure out five main areas of divorce before they can file a joint petition,settle, or have a judge grant their divorce orders. Those areas are:
- Dividing Assets
- Dividing Debts
- Spousal Support
- Child Support
- Child Custody
If the couple does not have any children, then they only need to worry about the first three.
When the court goes to divide their assets, it will look at what is community property versus separate property. Community property is anything the couple gained after their marriage. Separate property would be something one party owned before the marriage that did not mix with community funds.
Debts work in the same way. The court will look at debts acquired before marriage and then split community debts equally.
Spousal support gets a little more complicated and will only apply in some situations. There is no hard and fast law in Nevada about how to calculate spousal support. Talk to your divorce attorney if you think spousal support should be part of your divorce decree.
Some complex situations will need extra consideration. For example, if one or both spouses own a business. That business will need a business valuation and then split equally. Dividing retirement funds are another example of a complex situation which requires extra attention.
With children, the courts are more specific. Nevada prefers the parents have joint custody of the child to foster healthy relationships with each parent. You can use a child support calculator to find the exact amount of child support one or both parents must provide. However, you can modify child support orders.
There are many myths about child custody, mostly spread through television that can make learning the truth from your divorce attorney confusing. When you look at how the court determines custody, you’ll find specific rules on best interest factors for determining child custody that the courts must look at to make that decision. Pursuing primary custody of your child can be tricky since the courts prefer joint custody.
Nevada had a set of statutes determining these best interest factors for child custody. These statutes set rules on what judges must explicitly take into consideration.
The major factors that will cause a parent to lose custody of their child are domestic violence and child abduction. If you have a record of domestic violence or removing your child from the state, your chances of getting even joint custody are slim.
The judge will then look at how well the parents work together. Nevada’s guidelines try to promote good relationships between the child and both parents. The court will look into how well the parents talk to each other and their willingness to co-parent. Are your conversations polite? Are they focused on the best interests of your child instead of any personal grievances? The more agreeable you and your ex-spouse can be, the better your chances of custody.
How agreeable are you and your ex about visitation flexibility? For example, if your spouse wants to trade weekends, will you say, “No, this is what the court order says, so that’s what we’re sticking to” or will you try to work it out? Remember, the more agreeable you can be, the more favorable the judge will look at your case when determining child custody.
Courts will consider the child’s preferences once they reach a certain maturity level. Nevada does not have a set age. It’s up to the judge to see if the child is mature enough to have a reasonable opinion. Usually that starts between ages 12 and 14, but it depends on the child. This gives the child a voice in the decision, not a choice.
Some people get surprised by the factors the courts do not take into consideration. Finances do not have any bearing on the decision. Being motherly doesn’t get you primary custody either. The courts are almost exclusively looking to promote stability for the child and healthy relationships with both parents.
Fore more information on child custody, read our Child Custody A to Z Guide.
Nevada is a community property state. The rules around community property are important to understand because they will play a huge part in how the court divides your assets and debts during a divorce.
Community property consists of assets that you and your spouse acquired after you married. The same goes for debts. During a divorce, the court splits community property 50/50 with your spouse. Anything you earned before the marriage is separate property.
For example, any income, vehicles, homes, or investments that you acquired after you married are all community property. A notable exception is anything inherited by one spouse. Inheritance stays separate.
During your divorce, your divorce attorneys and the courts will look at all of your assets. Then they’ll carefully sort through what you accrued before the marriage and during the marriage.
Be aware of commingled assets. Mixing separate assets with community assets can turn the whole thing into a community asset. A house you purchased before the marriage but paid the mortgage with money you earned after could become community property if an attorney or accountant can’t figure out how to separate the separate property from community property.
There are eight other states like Nevada that use community property to divide assets and debts. That’s something to keep in mind when you go to file a divorce in Nevada.
Here in Las Vegas, the real estate crash hit everyone pretty hard. Specifically, couples found themselves with a lot of negative equity in their homes. In other words, their homes are upside down or underwater. There are a few options for dividing a home underwater, but it can get tricky.
When a couple goes to divorce, and their home is underwater, the first question we get as divorce lawyers is “what do I do with this house?” It’s a common question.
The first question we ask the couple is whose name is on the mortgage? Are both spouses names on the mortgage? If they are both on the mortgage, then we need the spouses to agree on what to do with the house.
One option is to do a short sale on the house. You could also let the bank foreclose on it. The courts allow both of these options.
If one of the spouses wants to keep the house, even though it’s upside down, and can afford to keep it post-divorce, that is also an option. A common reason to keep the house is if there are children. Keeping the house can mean a little extra stability in their lives while their parents go through the divorce process. We try to keep someone in the house if they can afford it. Again, both spouses have to agree on this if they are both on the mortgage.
There are options for dividing a home underwater in a divorce. They can be a little riskier than, but it’s been a reality here in Las Vegas for the last several years.
One of the main questions we get when dividing assets and debts is, “are retirement plans considered community property?” Any retirement plan you have counts as community property, in part. This includes your 401(k), IRAs, and pensions.
The key determining factor is the length of the marriage while you were contributing to your retirement account. Remember that your income is community property. Using it to build up your retirement accounts make those community property too.
Let’s use the military as an example. Say you serve for 20 years and have a spouse the entire time. Then you divorce after you retire. The court considers your spouse fully vested. So they would get 50% according to community property rules.
If you serve for 20 years, marry 10 years in, then divorce after you retire it becomes a different story. Your spouse is 50% vested because they were with you for half your military career. This means they would get 25% of that retirement account. To clarify, if your spouse was with you for half the time you were building up the account, they would get 25%. Because they were married to you half of the time, they get half of the half.
Dividing retirement accounts can get tricky because of the time involved. Even if you are filing a joint petition, having a divorce attorney look over how you divide your assets can make sure everyone is getting what is due to them.
Nevada is a community property state. That means that a judge will divide all assets and debts 50/50 between the spouses in a divorce. Anything can you or your divorce lawyer can prove is separate property will remain yours.
You can agree to any other type of division you want. If you have a prenup or a postnup in place, that can have almost any agreement. In rare cases, if a judge finds the prenup to be extremely unfair or signed under duress, then it can be nullified. If you and your spouse are filing a joint petition, then you can agree to whatever division you wish.
Leaving it up the court to decide will result in the judge dividing community property and debts equally.
A common situation for divorced couples is when one parent wants to move out of state and bring their child. Is a parent allowed to leave Nevada with a child?
The court’s first concern is what type of child custody you have. It is much easier to make the move with your child when you have primary custody. Joint custody makes it a little more complicated.
Primary physical custody makes this easier because the court has already looked at the child’s best interest factors and awarded you custody. With primary physical custody, there are two main factors the judge will look at.
First, do you have a good faith reason for leaving? A good faith reason needs to be something like a better job opportunity, an ailing parent, or moving closer to family. If the court suspects you are trying to punish your ex-spouse, then they will not allow the move.
Second, can you work out a child visitation schedule with the other parent? The Nevada courts believe it is important for children to have a strong relationship with both parents. If you and your ex are willing to work together on visitation, then the judge will more likely allow the move. You and your divorce lawyer will have to prove both of these factors to sway the judge in your favor.
If you have joint custody of your child, moving out of state will be a little more difficult. You first need to convince the court to give you primary custody. Which means they will consider the best interest factors for the child, not your situation. Only if they determine that giving you primary custody is in your child’s best interest, then they will examine whether the move is better for the child.
Only when they meet all the above criteria, can a parent leave Las Vegas with a child.
Most people overlook the importance of the financial disclosure form. It is mandatory. You must file it with the court.
Judges use the financial disclosure form any time the court must make financial decisions relating to the divorce. That means the court will use it almost every time in a contested divorce. The judge uses it to figure out divorce attorney fees, alimony, and child support.
When you fill out the form, make sure you are as accurate as possible. The form asks about your income, expenses, assets, and debts. You are signing this form under penalty of perjury. (Perjury is willfully telling an untruth in court. Penalties vary, and none of them are good.) You must also attach three pay stubs. If you are self-employed, then you need to attach year-to-date income plus P&L statements.
Make sure you do this right. Most people underestimate how important the financial disclosure form is. They don’t realize how closely the judge looks at this until they’re sitting in the courtroom.
The easiest way is if both parties agree to stipulate the amount. You and your ex can agree at any time on an amount deviating from Nevada’s child support formula. That’s your right. The catch is that if one party becomes difficult, then it’s hard to enforce.
There are two ways to modify child support through court intervention.
First, every three years you can have the court review your financial situation without any penalty. The court protects your right to do that because situations change. All you have to do is file the financial documentation, and the court will re-evaluate the numbers.
Second, you can have the court adjust your child support at any time if one party has a 20% change in income. Like the other method, you must file financial documentation for the court to review. However, if you’re wrong, you will probably have to pay your ex’s divorce attorney fees.