Do You Know Your Divorce Rights?

Posted: 17 September, 2019

Americans have more rights than any other people in the history of the world.  Born under a Constitution which included a “Bill of Rights” we know our “unalienable” rights and demand them anytime we need them.    We know we have the right to remain silent, the right to free speech, and the right to express our religion.    But, do you know your rights when it comes to a divorce?

Right to a No-Fault Divorce

Nevada, like all states, is a no-fault divorce state.  This means that being granted a divorce does not require you prove wrongdoing. Either spouse can merely state they no longer get along.   Your spouse cannot challenge your claim.   The court must give you a divorce if requested.

This is a major change from just a few decades ago when a spouse had to prove the other spouse was at fault to be granted a divorce.  It is helpful to keep in mind that, even in a no-fault system, the judge can still make decisions on the terms of the divorce.   Although the judge can’t stop the divorce, he decides how to divide the assets, sets a custody schedule, and can decide on alimony amounts.

Right to Divorce in Your State

Divorce laws are controlled by State Government, not by the Federal Government.   You have the right to have your state of domicile make decisions on your divorce.  One spouse cannot go to another state with more favorable laws and immediately file for divorce.

There is a difference between domicile (where you live) and residency (where you have an address). In Nevada, that domicile period must be at least six weeks.   Six months if you have children.  Lawyers call this jurisdiction.

Right to a Hearing

Before a divorce court makes any decisions, you have a right to be noticed of the hearing, to confront your spouse’s claims, and to submit your own claims.    You do not have a right to a jury trial in divorce court.

All contested divorces in Nevada are decided by a judge.  The judge, not a jury, determines all questions of law and fact. The judge makes all final decisions, if you and your spouse cannot reach an agreement. After listening to witnesses, hearing expert opinions, and reviewing evidence, the judge will make a final decision regarding the division of marital assets, child custody, child support, and alimony.

Right to Community Assets

Nevada is a community property state. Any assets, or property the couple have acquired are presumed to belong equally to each spouse. The name on the title does not matter. This same presumption applies to martial debts. The presumption is the debts should be divided equally.

The issue lawyers will argue is what is community property, and its value.   The presumption is anything acquired is community property.  There are a few exceptions like an asset acquired acquired before the marriage or by inheritance.  After this issue is settled you have the issue of the value of the asset (or debt).   This gives a divorce attorney loads of wiggle room when dealing with a couple who own a business, or complex assets.

Right to Stay in the Marital Home

Spouses have the right to remain in the marital residence.   It does not matter whose name is on the title of the home.  If married, a spouse has a right to stay in the marital home until a court says otherwise.   Courts may issue an order for one spouse to have “exclusive possession” of the home.  Typical reasons are economics or violent behavior.  However, until the court does, a spouse cannot evict a spouse from the marital home.

Right to Joint Physical Custody

Nevada law presumes that children benefit from meaningful and consistent contact with both biological parents. That presumption does not necessarily mean an exact 50-50-time division.   Dividing a seven-day week is not practical.   Most courts prefer week-on/week-off, one parent having the child four days one week and three days the next week.   These are the typical “joint” custody schedules the courts lean towards.

Right to Joint Legal Custody

The joint custody presumption also applies to legal custody of the children.  Legal custody deals with medical issues, religion, and schooling.    Both parents have a right to be involved in these decisions.  A judge may order “Sole Legal” custody only under extreme circumstances.

Right to Child Support

The Federal Government commands every state to have a child support formula or lose funding.  Nevada’s formula is based on the type of physical custody, the gross incomes of the parents, and the number of children.  Here is a child support calculator;

Nevada does cap the monthly child support amount.   Nevada also allows for the calculation to be modified up or down.   The courts can modify the calculation up or down if they find a justifiable reason to do so.

Right to Alimony Support

A court may award alimony that is considered both just and equitable. It can be awarded as a specified principal lump sum or it can be specified periodic payments. There is no fixed alimony formula. Which means the court has the discretion to consider several factors.  The most common factors are the length of the marriage, standard of living during the marriage, and earning capacity of each spouse.

Alimony can be awarded on either a temporary or permanent basis. Also, an ex-spouse can petition the court to either increase or reduce alimony.