First off, you should understand the difference between sealing and not sealing your divorce file.
If you do NOT seal your divorce documents file, it remains part of the public record. As such, anyone who wishes to do so can present themselves at court and ask to see the file; people you know, people you’ve never met, any attorney. For instance, if you wished to see someone’s divorce file at court, you need only present yourself at the clerk’s office at Family Court, show some identification, and request the file.
You will be shown into a reading room and asked to sign out the divorce file you requested. It will be retrieved by the court clerk and brought to you. You will be able to read the entire file, as well as ask for copies of certain pages or documents in it, or even request that the entire file be copied. You will not be allowed to leave that room or the court with the file.
Other than a very few smaller counties in Northern Nevada, most counties’ family courts’ databases can be accessed online. At this time, only the case number, name of the parties, and names of the pleadings, such as joint petition for divorce, complaint for divorce, decree of divorce, and all other documents pertaining to your divorce, such as affidavits and financial disclosures, are visible to the public; the documents themselves are not visible, at least not at the time of this writing. Only attorneys have access to a paid service through which they can see full pleadings online.
If you file a formal request for the court to seal your divorce file, none of the court pleadings having to do with your Nevada divorce will be accessible to the public or attorneys, other than your own attorney and as long as he or she is still your attorney of record, once the Order to Seal has been signed by the Family Court judge and filed by the Clerk of the Court.
A court order will be needed to access the file after it is sealed, except by the parties to the case who will have to present themselves at court in person and show identification.
If you obtained your divorce by a Default process (when the other party did not sign divorce documents and did not respond to the Complaint for Divorce) you will not be able to seal your divorce in Nevada. This is to allow access to the file by the Defendant.
If anyone were to search the court’s online database once your divorce is sealed, nothing would show up at all either under your name, your spouse’s name, or under the case number.
Should you seal your own divorce? This is a very personal decision. Do you feel uncomfortable at the thought of any stranger having access to your divorce file and reading the financial settlement you arrived at with your spouse? Were there acrimonious affidavits filed by you or your spouse and you wish to keep those private? Does just knowing that your divorce is part of the public record bother you?
If so, you might want to seal your Nevada divorce file.
You’ll find much incorrect information surrounding how to establish residency for a Nevada divorce online. Not surprisingly, this is one of the most-asked questions we get by email and phone. So, in the spirit of setting the record straight, here are the 6 most-asked questions pertaining to what the court looks for as proof of your Nevada residency:
- Do both my spouse and I have to be Nevada resident to file a divorce in Nevada?
No. Only one of the parties must have resided in Nevada for a minimum of six-weeks before filing a divorce. If you are filing for an annulment and you obtained your marriage in Nevada then you need not be a Nevada resident. The Court has jurisdiction to set aside the marriage. However, if you want to annul a marriage from another state residency is required.
- How do I prove I’m a resident?
The main proof comes in the form of an Affidavit of Resident Witness. The individual who signs this sworn Affidavit in front of a notary must be another Nevada resident who knows you to have lived in Nevada for a minimum of six weeks before the date your divorce is filed. This can be a friend, relative, co-worker, landlord, employer or employee, just anyone else at all who is a Nevada resident and is willing to sign this affidavit. If you are moving to Nevada and plan to get divorced here then be social and get to know a friend, co-worker or neighbor. Surprisingly people who have lived here for a year sometimes have difficulty finding a resident witness because they have not bothered to get to know someone on a regular basis, i.e., who has seen them physically present in Nevada each week for 6 weeks. Remember, if children are involved the Court requires that they reside in Nevada for 6 months before the Court will exercise jurisdiction over custody and visitation of the children.
We create the affidavit, notarize, and file the resident witness affidavit as a part of our Nevada divorce service to you.
- Do I have to change my driver’s license to Nevada before I sign my divorce documents?
The Department of Motor Vehicles (DMV) does require that incoming residents trade in their out-of-state driver’s license for a Nevada driver’s license before the first 30-day period of residency has expired. However, we are working for you and not for DMV so if you provide us with sufficient identification and evidence that you actually now reside in Nevada we will notarize you signature reminding you that you are under oath.
That said, the Court generally does not ask to see your driver’s license unless you must make a court appearance in your divorce. If you cannot obtain a driver’s license DMV issues a state identification card which will be sufficient. A passport alone with an out of state address will not be sufficient to prove that you are a Nevada resident.
If your divorce is uncontested, it’s unlikely that you’ll have to appear in court and show as much proof as stated above, though it has occurred in the past. However, if the divorce is contested and your spouse challenges your residence then you will have to come up with other proof that you live here. Under these circumstances it is a good idea to corroborate your Nevada residency in the form of:
- Nevada driver’s license
- voter registration (if you vote)
- rental or utility company receipts (if you rent/own a place where the utilities are in your name)
- car registration, if you own a vehicle.
- Can I just move to Nevada, get my divorce, and leave?
Your divorce documents will state that, at the time you sign your divorce documents you have the intent to remain in Nevada after your divorce. Your Affidavit will state that it is still your intent to remain in Nevada for an indefinite period of time. The court has nothing to say on the fact that you might change your mind afterwards. However, this does not mean that you can come to Nevada, spend 6 weeks here, sign your divorce papers and leave town. You would be advised to remain in Nevada until your uncontested divorce is finished up. If you already have filed a case in another state and it is still pending, and, maybe that case is moving too slow for you, you cannot come to Nevada to live here 6 weeks and file here as that is called forum shopping and is not allowed. The case in the other state would have to be closed or dismissed for you to file a new case in Nevada.
- I’m getting divorced because of an Immigration issue. Can I just move to Nevada, get a divorce, and leave?
There have been many instances in the recent past where Immigration officer have questioned the validity of Nevada divorces obtained to benefit parties in an Immigration case. Our office had a case where there was a paralegal company in New York City advertising Nevada Divorces and gave out inaccurate information on residence. Although the divorce took place in Nevada when an immigration application for a visa was attempted the immigration officer wanted much more evidence than just a cousin’s affidavit that he had seen the client in Nevada for 6 weeks. If immigration suspects fraud by a non-citizen they can abort the immigration application and deport a person or not allow them reentry in to the country.
- What constitutes a legal residence?
The term, legal residence, applies to the place a person spends most of his time and is the home that is recognized by law.
Residency as a legal term has different meanings in different contexts in the law. Also different jurisdictions define residency in different ways because of different laws. Some people consider themselves to have two residencies, especially when they have a second home. A deployed member of the military may be a permanent resident of Nevada even if he or she has been in Iraq for the past two years. Bankruptcy may require that you live in Nevada 6 months before you file whereas you only have to live in Nevada 6 weeks to file for divorce. California may require that you live there 6 months before you file for divorce instead of Nevada’s 6 weeks. So context is everything where it comes to residency.
This is a question we get asked so often from both annulment and divorce clients that we decided to address it in more depth here.
First off, whether you are filing an annulment or a divorce, it is always less expensive and faster to have it granted if your spouse signs the papers. However, if your spouse refuses to sign, or you cannot find him or her, here’s how to file a one-signature divorce in Nevada.
Nevada law requires that your spouse be served with the Complaint for Divorce (or Complaint for Annulment), and then be given 21 days after the date of service (consecutive calendar days) to respond to the complaint. To make it simpler, the rest of this article will mostly refer to “complaint” rather than repeating Complaint for Divorce or Complaint for Annulment over and over.
When you serve the Complaint for Divorce, be sure to also serve a Joint Preliminary Injunction to keep the Defendant from cleaning out your joint bank accounts or transferring anything you own jointly into his or her name only.
Also, if you are in need of temporary child support or spousal support, or want exclusive use of the family home for the duration of the divorce, you should file a Motion for temporary support which will be heard by the judge sooner than any possible divorce trial.
If you have no idea where your spouse resides, you might want to consider hiring an investigator before filing your divorce so that the 120-day deadline on filing the Affidavit of Service doesn’t elapse while you are attempting to find him or her.
If a skip-trace does not turn up the whereabouts of your spouse, publication of the Summons must take place. This requires that the Summons be published once a week for five weeks (when filed in Nevada). And just as in when the Defendant is served personally, there is a 21-day waiting period after the last date of publication before the Default can be submitted to the court.
A Default essentially means that the Defendant does not object to the divorce or annulment. A Default is granted by the court with proof of service, either personal or by publication.
To properly respond to a complaint the Defendant must file an Answer and Counterclaim with the Family Court where your case was filed, and must do so no later than 21 days after he or she was served with the Complaint.
Please note, that if you are in a domestic violence situation, it would be far better to have the Defendant served rather than face a violent situation when you ask your spouse to sign the papers.
Should your spouse file an Answer and Counterclaim after he or she has been served, your divorce or annulment will be considered a contested matter. If your spouse contests, the first thing the court does is set a Case Management Conference, which is essentially forced mediation. We are strong advocates of mediation as it avoids much anxiety for the parties as well as save them a lot of money. Our philosophy is, if you can’t come to an agreement on your own, why not enter into mediation before filing and therefore avoid high attorney fees for both sides (minimum of $2500-$5000 for each party in most cases) just to end up in mediation anyway?
For details or to start the process of filing a Complaint for divorce, visit this page: http://nevadadivorce.org/one_signature_divorce_complaint.html
Are physical custody and legal custody the same thing? Oftentimes, clients see them as one, when in fact, these are two different aspects of custody that are addressed in a divorce with children.
- Physical custody refers to time a parent actually spends with his or her children.
- Legal custody refers to a parent’s right to make decisions on major issues regarding their child(ren).
Regarding physical custody, Family Court in Nevada operates from a belief that both parents should have as much meaningful and quality time with their children, post-divorce, as possible.
Ideally, after a divorce, the children’s parents will share joint legal and joint physical custody. In Nevada, as long as the children spend between 40% to 60% of quality time with each parent, the parents are considered to be sharing joint physical custody.
If one parent cares for the children more than 60% of the time that parent is considered by the Court to have primary physical custody of the kids. This can affect child support.
Even when parents have a joint physical custody agreement, there is likely to be child support paid by one parent to the other if there is a disparity in income between the parties.
When parents share joint legal custody, but one parent has primary physical custody, the other parent is entitled to, and likely to have, reasonable visitation with the children.
Reasonable visitation must be defined in the decree of divorce, though parents are free to define it any way they want. The Court just wants something definite in the decree such as dates or days, as well as time of day and the exchange location are put in the Decree.
If the divorced parents live in two different towns, then one parent will typically have primary custody of the children for purposes of attending school.
Sole physical custody, meaning the children live full-time with one parent and never visit the other parent, is not customary for Nevada, though it happens frequently nevertheless. If one parent can’t be located, is unfit because of child abuse, mentally challenged, or a sex predator, then the court is likely to grant sole physical custody to the other parent. This happens often enough when one parent has been sentenced to prison for a long period of time, for instance.
One should be cautious when accepting lightly what the court might recommend what they term as a temporary physical custody arrangement. What’s often not said at such time, is that usually what the Court decides at the first hearing on temporary physical custody often ends up being the permanent custody decision in the case.
Once the decision on temporary physical custody has been made by the Judge, or during the case management conference, and has then been signed by the judge, it’s often difficult to change that decision without showing a significant change in circumstances. One would have to show that a change is in the best interests of the children before a judge would agree to modify any physical custody order already in effect, even if it’s only a temporary order. Any change in custody must be approved by a judge; parents cannot simply write up their own amendment to the physical custody. A stipulation for a change must be filed by the parties and an order must be signed by a judge.
Legal custody essentially gives a parent, even one with no physical custody, the right to participate in life decisions affecting the welfare of their children in the following areas:
- medical decisions
- extracurricular activities
A motion must be filed with the court to take legal custody away from one parent. It cannot be addressed as a part of a divorce, though both actions can take place simultaneously.
To go further down that continuum if an absent parent does not pay child support or make any effort to be involved in the child’s life for a year, then the active parent can seek to terminate the parental rights of that absent parent.
So, to reiterate, physical custody is the time a parent actually spends with a child. Legal custody is the right by a parent to make decisions on important issues in a child’s life.
It’s discouraging when the person to whom you promised to spend the rest of your life with simply disappears, seemingly without a trace.
We had a female client recently, we’ll call her Lisa for the purposes of this article, whose husband of ten years left the home without notice, just leaving a brief note to say he was leaving and not coming back. The parties own a home and have two children together.
Months went by and the Husband made no contact with Lisa, and no amount of asking relatives or friends turned him up. Finally, not knowing what to do, she called our office wondering if she could even file a divorce since she could not find him anywhere.
We reassured her that, in Nevada, the law allows for being able to obtain a divorce even in these circumstances. This is how to obtain a divorce when your spouse has disappeared.
We do it in this way:
- We file a one-signature divorce on behalf of the Plaintiff and get a Summons issued.
- We then do a skip-trace to attempt to find the Defendant (the missing spouse).
- If he or she cannot be found that way, we will obtain an affidavit of due diligence. Based on that, we’re able to get an order to publish from the judge.
- Once publication has taken place, once a week for five weeks, we are able to submit a Default to the court on Day 22 after the last date of Publication, if the Defendant has not filed an Answer in court.
- Once the Default has been granted, we submit the final decree of divorce for the judge’s signature.
- After the judge has signed the decree, the court clerk files it and the divorce becomes final.
Because Lisa owned a home with her husband and had two children with him, we also did the following:
- Obtained an Order from the judge to allow the judge’s clerk sign a Quitclaim deed that transferred ownership of the parties’ house to Lisa only.
- Obtained full physical custody of the parties’ children for Lisa. If her spouse, the children’s father, ever wants visitation, he will have to petition the court. Both parties still retained legal custody as this is a separate matter from physical custody and must be addressed separately.
- Once the divorce was granted, we forwarded a copy of the final decree of divorce to the District Attorney’s Family Support Division so that Lisa could get child support for the children. The District Attorney’s office has many investigative resources and powers to find Lisa’s husband. Once they do, they will garnish his wages, suspend his licenses, or attach any IRS refund due him to cover any child support due to Lisa for the children of the parties.
In addition to all of this, though this didn’t happen in Lisa’s case, the judge might order a Plaintiff to pay a private investigator to find the missing spouse. Also, if there is equity in the house owned by the parties and it gets sold by the Plaintiff, the judge might also order the Plaintiff to keep Defendant’s share in a separate account for him or her, for at least a period of about a year.
Author: Office of Attorney James E. Smith — http://nevadadivorce.org/about_nevada_divorce.htm