In order to get a divorce in Las Vegas, Nevada a necessary prerequisite is that the court has jurisdiction over the matter. Generally, the Family Court has jurisdiction of a case if the parties have been domiciled in Las Vegas, Nevada for at least six (6) consecutive weeks prior to initiating the divorce and the parties intend to make Las Vegas, Nevada their permanent home.
With regard to child custody, the rules are different and can be confusing; that is, initially, in order for the court to issue lawful orders regarding children, those children must have resided in Nevada and nowhere else for six (6) consecutive months prior to the commencement of the divorce. Pursuant to the Uniform Child Custody Jurisdiction Act (UCCJEA), a court that does not satisfy the above mentioned residency requirement may gain jurisdiction in Nevada as a result of domestic violence or abuse/neglect under the UCCJEA's emergency jurisdiction provisions or a Nevada court may have jurisdiction because it is the most convenient forum within which to hear the matter.
Child support jurisdiction is governed by the Uniform Interstate Family Support Act (UIFSA). Like the UCCJEA, UIFSA courts determine how much child support to impose on an obligor and whether or not that support order may be modified. Generally, a support order may only be modified by the issuing state while any state where the obligor is located may enforce a valid child support order.
Commencing a Divorce
In Nevada, a divorce action is commenced with the filing of the complaint for divorce. That complaint will contain what is known as the Plaintiff's "prayer for relief"; that is, what you want out of your divorce. Depending on the individual circumstances of your case, we could ask the court for primary custody of the children, child support, spousal support, distribution of property, attorney's fees, etc. In some cases, you may be able to recover damages for domestic violence or reimbursement for abandonment, among other things.
Once the complaint is prepared, it is filed with the court and served upon your spouse or his/her attorney. Thereafter, the opposing party has 20 days to respond to your complaint with an answer and, in some cases, a counter-claim. If the opposing party fails to respond timely, he/she will be defaulted and you will be awarded all that you ask for.
After a complaint and answer is filed with the court and served upon all parties, either the Plaintiff or Defendant will file a motion for temporary orders such as custody, support, exclusive possession of certain property, attorneys fees, etc. Once filed, a hearing date will be set by the court at least one month from the date of filing. If there is an emergency between the time your motion is filed and matter is heard, we could request that the court shorten the time within which to hear the matter.
On the date of the hearing, both parties will be allowed to argue their points as outlined in their respective motions after which the court will issue temporary orders based upon the facts and law presented. Be advised, all orders issued prior to trial are temporary pending trial, unless the court or parties specify otherwise.
If children are involved in your divorce, the court will mandate that you and your spouse attend mandatory mediation through the court's Family Mediation Center. At mediation you are not required to agree to anything you do not want; however, you are obligated to negotiate in good faith and at the very least try and reach an agreement concerning custody.
At the court date following mediation, the court will inquire as to the results of mediation and whether or not the parties are close to resolving the matter. If mediation is unsuccessful and the parties cannot agree to terms, the court will set a date for an Evidentiary Hearing; that is, a Trial before a Judge BUT NOT a jury.
Before trial, your case will move into a new phase: Discovery. There, we will use the litigation tools at our disposal, such as Depositions, Interrogatories, Request for Production of Documents and Requests for Admissions in order to collect the evidence we need to diligently represent you at trial.
Once discovery concludes, the trial is held. There, witnesses testify, exhibits are presented and arguments made that promote your interests over your spouses. Once trial concludes, the court will issue its orders and announce an absolute decree of divorce.
Best Interest Standard
The Nevada State Legislature has determined that the State's policy is: 1) to ensure that minor children have frequent associations and a continuing relationship with both parents after the parents have become separated or have dissolved their marriage; and 2) to encourage such parents to share the rights and responsibilities of child rearing. That policy is further codified in NRS 125.460.
Furthermore, in Nevada, as in most States, child custody determinations are decided according to the "Best Interests of the Child" standard. Here, that standard is codified in Nevada Revised Statute 125.480(4) et. seq. Pursuant to that statute, the court must conduct an analysis based on numerous factors, the most pertinent of which are the following:
- which parent is more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent (NRS 125.480(4)(c)),
- the level of conflict between the parents (NRS 125.480(4)(d)),
- the ability of the parents to cooperate to meet the needs of the child (NRS 125.480(4)(e)),
- the mental and physical health of the parents (NRS 125.480(4)(f), and
- whether either parent or any other person seeking custody has engaged in an act of domestic violence against the child, a parent of the child or any other person residing with the child (NRS 125.480(4)(k)).
Therefore, pursuant to case law and statutory law, a court will award custody to the parents jointly unless one or the other parent proves by his/her conduct that he/she will not foster a close and continuing relationship between the child and the other parent, is unable or unwilling to co-parent or cooperate with the other parent concerning the minor child's well being or suffers from a mental or physical defect such as a psychiatric disorder or chronic drug addiction.
One issue that will certainly be dispositive with regard to child custody is domestic violence. As illustrated above, the commission of an act of domestic violence or abuse/neglect by one parent upon the other or a child will create a presumption that the parent committing the act of domestic violence is unfit to have either joint or primary physical custody of the minor child. However, that presumption may be overcome upon a showing of clear and convincing evidence to the contrary.
In Nevada, child support is governed by NRS 125B.070 et. seq. and NRS 125B.080 et. seq. In the first instance, a child support obligor, the non-custodial parent, must pay a percentage of his/her gross monthly income according to the following schedule:
(1) For one child, 18 percent;
(2) For two children, 25 percent;
(3) For three children, 29 percent;
(4) For four children, 31 percent; and
(5) For each additional child, an additional 2 percent.
In addition, the non-custodial parent's support obligation is capped according to the following schedule:
INCOME RANGE PRESUMPTIVE MAXIMUM
Monthly Income is at least But Less Than Amount is
$0 - $4,235 $630
4,235 - 6,351 693
6,351 - 8,467 758
8,467 - 10,585 819
10,585 - 12,701 883
12,701 - 14,816 945
14,816 No Limit 1010
Finally, the presumptive maximum amount may be adjusted pursuant to NRS 125B.080(9) considering the following factors:
(a) The cost of health insurance;
(b) The cost of child care;
(c) Any special educational needs of the child;
(d) The age of the child;
(e) The legal responsibility of the parents for the support of others;
(f) The value of services contributed by either parent;
(g) Any public assistance paid to support the child;
(h) Any expenses reasonably related to the mother's pregnancy and confinement;
(i) The cost of transportation of the child to and from visitation if the custodial parent moved with the child from the jurisdiction of the court which ordered the support and the noncustodial parent remained;
(j) The amount of time the child spends with each parent;
(k) Any other necessary expenses for the benefit of the child; and
(l) The relative income of both parents.
With regard to child support in the event the parties share physical custody, two cases are of paramount importance: Rivero v. Rivero and
Wright v. Osborne. In
Rivero, the Nevada Supreme Court defined the meaning of joint physical custody. Generally, parties share custody when the time the child spends with that parent falls within the range of 40% to 60% of the week/month/year. In
Wright, the Court ruled that where parents share custody, who will pay what and what that amount will be depends upon what one parent would pay the other if they had primary physical custody, subtracting the greater amount from the lesser, with the parent that would pay the greatest amount paying the difference to the one that would pay the lesser amount.
There are two forms of spousal support: 1) support that is awarded pending trial and 2) support awarded after trial or pursuant to the Decree of Divorce, commonly known as alimony or rehabilitative alimony. With regarding to temporary support, the rule of thumb is as follows: a trial court will award a spouse temporary support if he/she has a financial need for support and the other party has the ability to pay. With regard to post-divorce support, the standard is what is "just and equitable." The Nevada Supreme Court has enunciated several factors to consider in making that determination, the most pertinent of which are as follows:
1. The relative age of the parties;
2. The length of the marriage;
3. Their relative income;
4. Their relative marketability in the work place, and;
5. Their relative education.
After considering these factors, the trial court may award permanent alimony, alimony for a period of years, rehabilitative alimony or a lump sum payout by one party to the other other.
Division of Property
Nevada is a community property state. The rules concerning what constitutes community property and how that property is divided are fairly straightforward. In the first instance, any property acquired during the course of the marriage is considered community property. Concomitantly, property acquired prior to the marriage is separate property unless the party owning that property has by word or deed done something to convert its character to community property.
In determining how to divide community property, the trial courts are commanded to make an "equal" rather than "equitable" distribution of community property. The distinction is critical. An equal distribution is a division of debts and assets that comes as close to a 50/50 split as possible. An equitable distribution divides property based on principles of equity and fairness, or to make one party whole for the bad conduct of the other party, such as for fraud or waste of community assets due to gambling, misfeasance, etc.
Although there are many cases and statutes that deal with attorney's fees in Nevada, with regard to divorce cases, a seminal case governs the analysis: Sergeant v. Sergeant. According to
Sergeant, where there is a substantial disparity in income between the parties, the spouse in the stronger financial position is obligated to pay for the other spouse's attorney's fees and costs in order to place the two on "an equal playing field" with regard to possible outcomes. What this means is that if you were the primary bread winner in your household when you and your spouse were married and your spouse now finds herself/himself scrambling to support themselves, you will likely be paying your spouse some amount for attorney's fees and costs.