1. My wife says she won’t’ give me a divorce. Do I have to stay married to her?
No, you do not. Despite the fact that this hasn’t been true for a number of years, especially in Nevada where no-fault divorce has existed for a number of years, we still hear the question often. This misconception used to be true (hence, how it became one), back when a specific reason and strong proof had to be given to obtain a divorce in Nevada, but it’s no longer the case.
Your spouse can make getting a divorce more difficult, prolonging the process, in a number of ways (avoiding service, sending you on wild goose chases for documents and old bank account statements, etc. filing motions that are essentially harassment, etc.), but no Nevada judge is going to force you to stay married to him or her.
2. I get to keep my house because I bought it before my marriage. Correct?
Maybe. Maybe not. Nevada is a community property state, which means that anything owned in either spouse’s name alone still belongs with the community property assets, with some exceptions.
For instance, if you owned the house before the marriage and used only your separate funds, earned before the marriage, to make mortgage payments and to handle the upkeep on the property and to make improvements, then yes, the house will go to you in a divorce.
If any community funds were used to cover upkeep or to make improvements, the house moves into the realm of community property. It makes no difference if the mortgage or deed is held in the name of one spouse only.
If you did use community funds for the aforementioned house expenses, your spouse would be entitled to half of the increase in value of the property since the time of your marriage. You would retain whatever down payment you made on the house before the equity is split.
Community funds in the context of this answer are funds from a joint bank account, and any funds earned during the marriage by either you or your spouse even if they are in an account you do not share with your spouse.
3. My spouse cheated on me. I’m going to get all of our property, correct?
Not correct. Because Nevada is a no-fault state on divorce, it doesn’t matter at all who cheated and who didn’t; it’s not even looked at by the court when it comes time to divide marital assets.
Yes, we understand you feel it’s unfair. We feel for you. Nevertheless, it’s still a fact around which there is no getting around. Even if your spouse cheated, he or she will receive his or her equitable share of the marital assets.
You can always try to mediate this if you feel very strongly that you should get more of the assets than your spouse (mediation is a far superior way to handle property division in a divorce, whether or not cheating or any other wrong-doing took place), but if a Nevada judge gets to make the decision, the assets will be divided fairly between the two of you.
4. I’ve been a stay-at-home mom throughout the marriage so I will get full physical custody of our children.
This is a very common misconception. Again, because it used to be true.
You could possibly get full custody of your children; however, Nevada family courts favor shared physical custody and are likely to grant each parent equal time with the children, unless the children are at risk of coming to harm in the presence of their other parent.
Of course, if your spouse agrees that the children should live with you full-time, and will visit with him or her on weekends, the court will not object. But, the court is not likely to grant you full physical custody of your children if you ask for it and your spouse is not willing to give it voluntarily. Unless, again, there is a good reason as to why the children aren’t safe with their other parent (drugs, alcohol, mental illness, abuse of any kind, etc.)
Legal and Physical Custody of the minor children: some people confuse physical and legal custody when they divorce in Nevada.
- Legal custody is the right of a parent to see a child’s medical and school records and to have a say about the child’s education and religious upbringing. No more, no less. A parent can have legal custody without having any physical custody at all.
- Physical custody determines which parent the child lives with, or states that a child lives with both parents, sharing about equal time between them. Typically, a parent who has either full or shared custody also has legal custody.
- There is also Sole custody, meaning that a parent has both legal and full physical custody, with the other parent having essentially no say in a child’s upbringing. Sole custody is not easily granted by the court. When one parent gives up (or forced to give up) legal custody, the court likes to see a replacement guardian put in place to share legal custody with the sole custody parent. This is an effort on the court’s part to avoid the child becoming a ward of the state should anything happen to the parent with sole custody.
In all of the above scenarios, visitation can still take place. In other words, a parent with no legal or physical custody rights could still be granted visitation.
Finally, be careful before you ask for full physical custody unless you have a strong provable reason that your child would be endangered by their other parent. Family court in Nevada highly favors shared physical custody and is likely to see you as a trouble maker if you push for full physical custody without a really good reason.
5. If we have shared custody, neither of us pays child support, correct?
This is also a very common misconception. One party will typically still pay some child support to the other party even with shared custody. The court follows the formula below – you can read about this in more detail on our divorce with children page.
Easy formula to figure out your child support obligation:
- Take the percentage of each party’s gross salary according to the number of children:
For one child, the sum of:
- For the first $6,000 of an obligor’s monthly gross income, 16 Percent of such gross income;
- For any portion of an obligor’s monthly gross income that is greater than $6000 and equal to or less than $10,000, 8 percent of such a portion: and
- For any portion of an obligor’s monthly gross income that is greater than $10,000, 4 percent of such a portion.
Subtract the smaller amount from the larger amount The party with the higher income pays the difference to the other party.
- John and Jane have one child and no reason to deviate from the Nevada statutory guidelines on child support.
- John’s gross monthly salary is $1000 per month, so his obligation to Jane for child support is $160 per month.
- Jane’s gross monthly salary is 800 per month, so she is obligated to John for $144 monthly for child support.
- Difference between $160 and $144 is $16, so John pays Jane $16 per month.
6. I didn’t work during our marriage. I will get alimony for the rest of my life if I divorce in Nevada. Correct?
This used to be true, especially for long-term marriages where the wife stayed at home raising the children and had not worked at all during the marriage.
It’s no longer the case.
Courts are a lot less likely to grant life-long alimony to a spouse, unless it was a very long marriage, the other spouse never worked and is incapable of earning due to physical or mental disability.
Otherwise, a judge might grant temporary alimony while the spouse that stayed at home retrains in a new career, or revives an old career.
Nevada law on alimony (NRS 125.150 states the following regarding the circumstances under which a judge might grant alimony in a divorce:
- the standard of living to which the couple was accustomed
- the career of both spouses before the marriage
- whether one spouse has advanced the other spouse’s career
- age and education of the parties
- the ability to pay of the spouse who will be paying alimony
7. My friend told me I can get a divorce in Nevada in just one day. Is that true?
Not anymore. We do wish this misconception about getting a divorce in Nevada would go away. We still get the question nearly every day despite the fact that this hasn’t been true for at least 10 years!
Back in the 50’s when it was popular to get a divorce in Nevada because of the short residency requirement, yes, you could often get a divorce in Nevada in a day (after establishing residency). And even just 15 years ago, you could get it done in just a few days. What happened is that between budget cuts, the now much larger population of Nevada, and the many people who establish residency to get a divorce, family courts in Nevada have become overwhelmed.
How long a divorce in Nevada takes depends in large part on how busy the court is at the time your divorce is filed. It also depends on how busy your divorce judge happens to be at the time he or she is assigned your case.
Our office does get final decrees back from the court in just two or three days occasionally, but the norm is more like 7 to 10 days and even up to three weeks sometimes.
All of the above timeline is based on a joint petition divorce (you both signed the divorce documents before filing the case). If you file a complaint for divorce, it will take 12-16 weeks or so if your spouse can be personally served and up to 26 weeks if publication has to take place.
The best thing to do to dispel misconceptions about divorce in Nevada is to talk to your attorney about any concerns you have regarding any aspect of your divorce. Don’t assume and don’t just accept for granted what your friend who went through a divorce three years ago tells you. That person is not in the trenches every day dealing with divorce court and they don’t know the law like your lawyer knows it.