Las Vegas Divorce From A to Z
When considering filing for divorce in Las Vegas, Nevada, there are rules that must be followed and specific steps that must be taken. A Las Vegas divorce attorney experienced in family law matters can guide people through the system and help them achieve the best outcome for both parties involved so they can move on with their new lives.
Major issues that every divorcing couple must resolve are the division of assets and debts and whether or not there will be a need for spousal support or alimony. If children are involved, custody, visitation and child support must also be decided. Here is an overview of the steps involved in the process, the applicable law, and commonly used terms.
Anyone who files for divorce must have lived in Nevada for at least six weeks prior to the date of the filing and have the intent to make Nevada their permanent home. The state of residency is called jurisdiction. Venue is which county court in Nevada will hear the case. In Las Vegas, NV the venue is the Clark County Court. It is not required to be have been married in Nevada nor for both parties to reside in Nevada. Only one person needs to be a resident to file for divorce.
If children are involved, the children must have resided in Nevada for six months prior to the date the petition for divorce is filed. Otherwise, the court has no jurisdiction over child custody or visitation issues. There are some exceptions to this rule. If the person filing for the divorce can present evidence that emergency circumstances exist as defined in the Uniform Child Custody Jurisdiction and Enforcement Act, the court may exercise jurisdiction. Evidence that the child or children are in the state and that they have been abused or abandoned is required.
Although Nevada is a no-fault state, which means that one spouse cannot blame the other for conduct that caused the divorce, there are three specific recognized statutory grounds:
1) Incompatibility, which is essentially the same as irreconcilable differences, a common ground in no-fault divorce states.
2) Insanity of one party for two years prior to the filing of the divorce petition.
3) The spouses have not lived together for more than one year prior to the filing date.
A divorce can be initiated in two different ways, depending on whether both parties are in agreement on all the relevant issue;
1) Uncontested divorce: When the parties agree on the issues. One of the following petitions may be filed.
- Joint Petition with No Children: This is a fairly simple document in which the parties both list all the relevant issues and how they have resolved them together. There is nothing left for the court to decide.
- Joint Petition with Children: Detailed information must be provided to the court concerning all the issues that have been resolved particularly with child custody, visitation and support. The children’s names, birth dates and social security numbers all must be provided to the court. Itemization of how the issues have been resolved must be presented so there is nothing left for the court to decide.
Both types of petitions must be verified by each party and notarized and filed with a notarized Affidavit of Resident Witness.
Request for Summary Disposition for Decree of Divorce: When the parties have agreed on the resolution of all issues, the plaintiff may file a petition for summary disposition. The court may grant the divorce without requiring an appearance by either party. The petition must be accompanied by an affidavit swearing that:
- The defendant was properly served
- The marriage is irretrievably broken
- Assets and debts have been fairly and agreeably distributed
- All issues regarding child custody, visitation, healthcare insurance and support have been satisfactorily resolved in the best interest of the children in a way that fairly assures their needs will be met.
2) Contested divorce: When the parties do not agree on the resolution of the issues, one party prepares and files a Complaint for Divorce in the Family Division of the Eighth Judicial District Court. There are two different complaint forms. One form is for people who have minor children and a different form for those who have no minor children. The form will have a blank for the filing party to check the grounds for the divorce. The person who files the complaint is referred to as the plaintiff and must pay a filing fee. The other party is the defendant and pays a fee for replying to the complaint.
An Affidavit of Resident Witness must be filed with the Complaint. This is a statement by a friend, family member or co-worker of one of the parties who is a Nevada resident. The purpose is to affirm that indeed one of the parties meets the Nevada residency requirements. The statement is made in front of a Notary attesting to the fact that the party filing the complaint has been a resident of Nevada for more than six weeks.
The plaintiff may file a request for a Joint Preliminary Injunction which prohibits both parties from depleting their assets or harassing each other. If children are involved, the injunction prevents either party from leaving the state with the children. The plaintiff must serve the defendant with a Summons and Complaint attached. This gives the defendant notice that a complaint for divorce has been filed. An Affidavit of Service must be filed with the court to prove the defendant was personally served as required by Nevada law.
If the defendant cannot be located, the law allows the court to issue an order for Service by Publication. In order to obtain such an order, the plaintiff has to prove he or she has acted with due diligence in trying to locate the missing spouse. Evidence must be presented that relatives and employers have been contacted. Social media has been explored. Every avenue for locating the missing spouse has been explored to no avail.If the court grants the request for service by publication, the court order must be taken to a newspaper deemed by the court to be one of general circulation. The Nevada Legal News is an example of one that has been approved by the court. The notice must be published for five consecutive weeks. At the end of the fifth week, service is deemed to be complete and the divorce process can continue.
The defendant has 20 days after having been served with the Summons and Complaint to file an Answer to the Complaint. An Answer defines what parts of the complaint the defendant agrees with as well as identifying the parts the defendant does not agree with. If no answer is filed, the clerk will issue, upon request, a default against the defendant. The plaintiff can then submit a Decree for Divorce.
If the defendant files an Answer, the case is set for a case management conference within 90 days. If the Answer includes a Counterclaim, the plaintiff has 20 days to answer it. A Counterclaim raises issues the defendant has against the plaintiff that were not mentioned in the original complaint.
If the court is called upon to divide assets and liabilities and to make awards of child and spousal support, Both parties must file a General Financial Disclosure Form with the court. This requires detailed information of all income, expenses and debts and must be filed within 45 days of service of the Complaint. In some situations, a Detailed Financial Disclosure Form is required. This includes when:
- Either party earns more than $250,000 a year
- The combined income of both parties is more than $250,000
- The combined assets is more than $1,000,000
- One party is self-employed or has a major business interest in a private business
Motions for Temporary Orders may be filed after the Complaint and Answers have been filed. A divorce may take six months and Temporary Orders are needed to make initial, but temporary, decision on residency, custody, visitation and support. They are just what they are titled: Temporary until the court has time to hear each side’s proposals and make final decisions. If the parties can agree on how these matters will be handled, they will file a Stipulation with the court listing each and every issue and how it is being temporarily resolved.
Temporary orders cover everything that may be covered at the end of the divorce including, but not limited to:
- Who lives in the marital home
- Spousal and child support
- Child custody and visitation
- Who pays the debts and household expenses
After the Complaints, Answer, Counter Complaints and Temporary Orders the Family Court judge will order mediation. In Las Vegas, this is referred to as Familiy Mediation Conference (CMC). If mediation fails to settle all the terms of the divorce a Case Management Conference (CMC) will be put on the court calendar. At the Case Management Conference (CMC), dates for discovery are established as well as a date for a trial.
Family Mediation Center: When the parties have disputes over child custody and visitation issues, the court will refer them to the Family Mediation Center to help them resolve their issues and come to an agreement. Issues surrounding child support or other financial issues will not be discussed. The purpose is to focus on parenting and to assist the parties in coming to the best possible parenting agreement. The Mediation Center does not provide legal advice.
The mediation process is founded on principles of confidentiality with only a few exceptions. If any evidence of child abuse or neglect surfaces, appropriate authorities will have to be notified. Another situation that must be reported to authorities is if either party makes any threats of bodily harm or intent to commit a crime.
The mediator will provide a report to the court, but the records of the mediation sessions remain confidential and cannot be subpoenaed and no party can record the sessions. If one party misses a scheduled mediation session, that fact can be included in the report to the court. If one party misses two sessions, that is reported to the court and mediation is terminated.
COPE class is mandatory. All parents who file for divorce in Clark County are required to take a parenting class called COPE. The object of the class is to teach parents how to help their children cope with divorce. A Certificate of Completion must be filed in the court before the final divorce decree will be issued. The judge has the discretion to refuse to sign a final order of divorce until the class is completed. The course can be taken in person or online.
The same process for discovery that is applicable to all civil cases is applicable to divorce cases. This includes, but is not limited to:
- Interrogatories: Written requests for the opposing party to answer certain questions under oath
- Depositions: The parties and their attorneys meet together in person and one party asks questions the other party must answer under oath with all statements being recorded by a court reporter
- Requests for Production of Documents: a written request to an opposing party
- Requests for Admissions: A written request asking the opposing party to admit certain facts are true
- Expert Witnesses; This may be a forensic accountant to value assets or any other expert that may have an opinion on a relevant matter before the court
A Motion is when one party asks the court for something. The Motion may ask a court to order a discovery response the moving party believes was unresponsive. Motions often ask for temporary possession of the home until the final resolution of the issues. Motions may ask for a change or modification of a previous court order on any issue, such as child support, custody, visitation or spousal support. The Motion must be accompanied by an Affidavit of Service, either personal service or by mail, on the opposing party.
Motion for an Order Shortening Time: The moving party can request an order to shorten the times frames in order to have a motion heard in less than 21 days.
Emergency Motions: This is used when a court order concerning child custody, visitation or support is not being followed. It is not used to change or modify any existing order, but only to enforce an existing order.
An Opposition to Motion must be filed within ten days of the service of the motion. If there has been an order shortening time, the order will establish the date upon which the opposition must be filed. The opposition will present the aspects of the motion the party agrees with as well as the parts it opposes and give the reasons why the motion is opposed.
1) Child custody: There are two types of custody in Nevada: Legal custody and Physical custody.
- Legal custody: This refers to who has decision making authority for the children. This is particularly important in areas of health care decisions, educational issues such as where the child will attend school and the religious training of the child. Joint legal custody is generally awarded unless there is evidence that it would not be in the best interest of the children.
- Physical custody: This determines the parent with whom the children will live. It is closely aligned with child support. Physical custody is determined under the standard of what is in the best interest of the children and the parent with whom the child will live the majority of the time will be awarded primary physical custody.
Parents are expected to formulate their own Parenting Plan including custody issues during the mediation process. If they are unable to come up with their own plan, the court will establish custody based on the best interest of the child.
A common court order grants joint legal custody to the parents. This means they must jointly make important decisions involving the children. Primary physical custody is awarded to the parent the court concludes is the one that serves the best interest of the children. Depending on the age and maturity of the child, the family law judge may interview the child and take into account the child’s preferred placement.
Motion for a Change in Custody: Either parent can make a motion for a change in custody. The motion must present a substantial change in circumstances since the order that is being asked to be changed was entered. A family law judge can only change or modify a previous order if it is determined that the change is in the best interests of the child.
Motion for Relocation: If one parent wants to move out of Nevada and take the minor children along, they must obtain a court order allowing them to move. The other parent can grant permission to the moving parent or object. Again, the court will make the decision based on the best interest of the child.
2) Child visitation: The court hopes the mediation process has resulted in the parents putting together a joint Parenting Plan that includes visitation.
If not, the court will look at the requests of each parent and issue orders according to what appears to be in the best interest of the child. If there have been allegations of abuse or other misconduct on the part of one parent, the court can order no visitation or supervised visitation.
3) Child support: A non-custodial parent will be ordered to pay child support to the parent who is awarded primary physical custody. This is to pay for the costs of the children’s “care, support, education and maintenance.” Courts generally order child support to be paid monthly or bimonthly. Some of the factors the court considers according to Nevada law in ordering support payments to the custodial parent include, but are not limited to:
- Ages of the children
- Income of both parents
- All necessary expenses of the children
- Child care costs
- Health insurance costs
- Any special needs of a child
The court can take into consideration any other relevant factor. Nevada statutes put a cap on the percentage of income a non-custodial parent must pay for child support. The custodial parent who is receiving child support may not deny visitation to the non-custodial parent on the grounds that the child support has not been paid.
When joint physical custody is awarded, the court looks at the income of each parent and how much time each parent spends with the children. There is a mathematical calculation the court uses to determine the amount of child support, if any, one parent is required to pay the other.
1) Community property: Nevada is a community property state, which means that all property, including income, acquired by the couple during the course of the marriage is considered owned equally by each spouse and should therefore be divided equally between them in the divorce. Examples of community property include:
- Pension plans
- IRAs and 401(k)s
- Real Estate
- Military Retirement Benefits
Some community property is simply divided and split equally between the parties. Retirement benefits generally require a more complex order, called a Qualified Domestic Relations Order (QDRO) that deals with the specific rules of apportioning the benefits under a retirement plan. Provisions need to be made for the person receiving benefits under the ex-spouse’s retirement plan to receive all the benefits to which the person is entitled in the event the owner of the retirement plan dies.
2) Separate property: Property that is not community property includes:
- All property owned by each individual spouse prior to the marriage if it has remained separate property during the course of the marriage.
- Any property that was a gift to one spouse
- Any property that was inherited by one spouse
- Any property that was the result of an award for damages pursuant to personal injury
3) Property in dispute: Disputes arise about whether property is separate or community. Also, disputes are common over how to divide jewelry: Was it a gift and the separate property of the recipient or was it intended to be a family asset. When there is a dispute, the court will ask for clear and convincing proof that the property was owned by the spouse prior to the marriage and was never commingled, was a gift to one spouse or falls under any other exception such as a personal injury award. The court considers:
- When the property was acquired
- Which party acquired the property
- Under what circumstances was the property acquired
- Was the property used as separate or community property
4) Commingled property: This presents a difficult determination as to how to value community interest versus private property interest. There are Nevada Supreme Court cases a family law attorney can consult to assist in this valuation.
5) Valuation of assets: Assets need to be valued so the court can determine how they can be equally divided. The value of some assets may give rise to disputes between the parties. For example, when the community income has been due to one person’s private professional practice, such as accountants, doctors, lawyers and other business owners, the value of the private practice or business must be calculated.
Forensic accountants specialize in this type of work. They need all income and expense information for the business. The goal is to maintain the integrity and future of the business while assuring a fair and equal distribution of the business as a community property asset.
6) Apportionment of debts: In a community property state like Nevada, all debt incurred during the course of the marriage is divided equally between the two spouses. Even if one party incurred debt in his or her name only without the other spouse’s signature, it is still considered a community debt. Specific debts will be assigned to one party or the other to pay in a manner that divides them equally between the two spouses. The court may take all financial issues into consideration and one person may be assigned more of the debt in order to offset a property award or award for spousal or child support. The spouses can come to a mutual agreement about the division of property and are encouraged to do so. They then file a Stipulation with the court listing all the assets and liabilities and how they have agreed to apportion them.
Technically, spousal support is the financial support one spouse receives from the other one under a temporary order during the pendency of the divorce process. Alimony is an amount of support awarded to be paid by one ex-spouse to the other after the divorce is final. Several factors are considered with the goal that the award is fair and equitable so that each spouse can maintain a standard of living that is reasonable and as close to what they both enjoyed prior to the divorce. There are two main types of alimony in the state of Nevada:
1) General alimony: One party is ordered to pay the other a financial sum that will enable the ex-spouse receiving alimony to maintain a reasonable standard of living. It may be permanent or temporary. Factors the court considers;
- Overall financial condition of each party
- The length of the marriage
- Age, health and earning capacity of each spouse
- Standard of living throughout the length of the marriage
- Whether or not one spouse gave up a career in order to stay home with minor children
- Education, training and career options of each spouse
2) Rehabilitative alimony: This is awarded for a temporary period of time while the spouse receiving the alimony obtains training or education in order to become self-supporting. The court looks at whether the spouse who needs the rehabilitative alimony provided support to the paying party so the paying spouse could further his or her education and career. Rehabilitative alimony may include all costs incurred for furthering education and training of the recipient spouse as well as support during the time of the training and education.
The court may structure alimony payments in any manner that seems fair and reasonable. It can be awarded in a lump sum or paid on a regular basis, usually monthly. Separate property may be used to make alimony payments. Either party can seek a modification in the amount of the alimony payment any time there is a change in circumstance. A 20 percent more change in income by the paying spouse is prima facie evidence of a change in circumstance.The payment of alimony is tax deductible. The receiving spouse must claim the alimony as income.
Affidavit of Service: All documents filed with the court that are required to be served on the opposing party must be accompanied with an Affidavit of Service. This proves service was made and details whether it was made in person or by mail.
Decree of Divorce: The divorce is final when the judge has signed the Decree of Divorce and it has been filed with the court. The Decree of Divorce itemizes all the issues that have been raised and how they have been solved. It lists all the property distribution, distribution of debts, alimony and child support and all the terms of custody and distribution. After the judge signs the document and it is filed with the clerk, the other party will be served with a copy of the decree along with a Notice of Entry of Judgment.
Legal Separation: There are situations where a legal separation is a better option than a divorce. An order granting a legal separation may divide assets as well as issue orders for support, custody and visitation. The reasons for choosing a legal separation over a divorce may be because one party may lose health care benefits if a divorce is granted but can stay on the health insurance policy of the spouse if the parties are only separated and not divorced. Sometimes, people do not want to obtain a divorce due to religious reasons.
Motions for Modification: Any time there is a change in circumstances such that one party believes a change in a previous court order is warranted, that party can bring a motion before the court articulating the grounds for requesting the change.
Prenuptial agreement: A prenuptial agreement outlines how property is expected to be divided in the event of a divorce and the entitlement of one party to provide support to the other. If the agreement is well drafted according to the law, it will be enforced. It will not be enforceable if: o It is unconscionable o Failed to disclose financial information o It includes limitations on child support
Protective orders: If there is any issue of domestic violence or other danger one party presents to the other, the party in danger can seek a protective order from the court preventing or limiting contact from the party deemed dangerous. A Temporary Protective Order (TPO) may be issued and become an Extended Protective Order (EPO) if evidence is presented justifying such an order.
Qualified Domestic Relations Order (QDRD): This is an order for a retirement plan to be used to pay alimony, child support or a sum to equalize division of assets. For a spouse who receives benefits under this type of order has the same obligations as the participant in the plan.
Service by Publication: If the defendant cannot be found to receive service of the Complaint, then the court may grant a request to serve by publication. Before the court grants this, a plaintiff need to show that he or she used due diligence in trying to locate the defendant. This includes contacting relatives, friends, former employers and anyone who might be able to give provide an address. If the court is satisfied there has been due diligence, the request to serve by publication will be granted.
Stipulation: When both parties agree on how an issue should be resolved, they file a stipulation with the court. The court approves it and turns it into a binding court order.
Stipulated decree: When the parties have agreed to all terms of the divorce, including the division of assets and liabilities, spousal and child support and child custody and visitation, they can file a request for Stipulated Decree and neither party is required to make a court appearance.
Venue: The Nevada District Court where one of the parties resides or the cause for the divorce arose.