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Frequently-asked Questions in a Divorce with Children

This should help answer your most pressing questions if you are either contemplating Divroce with children divorce or are currently going through a divorce and you have children with your spouse. In most divorces that involve children, we get asked most of these same questions each and every time.

Why do I have to pay Child Support when I share physical custody with my spouse?
In many cases, even when parents share physical custody fairly equally, one parent will end up paying at least some child support.

First off, for your arrangement to be considered shared physical custody, the court likes to see a time split that amounts to a near-equal number of hours shared by the parents, outside school hours. For instance, if your child is with you from Friday after school until Monday when you drop him off at school, and is then with your spouse from after school on Monday until Friday morning school time, that would be considered equal time even though your child is with you for only two full days. This is because, since there is no school on the weekend, you have spent pretty much the same number of the child’s awake hours with the child, as did the parent who had the child from Monday after school through Friday morning before school.

In Nevada, child support is calculated according to a specific formula which you’ll find on our Divorce with Children page.

Do I have to buy health insurance for my child(ren) even though they don’t have coverage now?
Nevada expects one parent to be responsible for health care cost of the child(ren), usually in the form of a health insurance policy. If neither parent can cover this cost, an explanation must be given in the divorce pleadings. Both parents are expected to share, fifty/fifty, medical costs not covered by the insurance. If Mother incurred the medical expense for the child, she must present Father with the invoice within 30 days of incurring it. Father must then reimburse Mother his fifty percent share of that expense.

Can I include college expenses into the decree of divorce?
Nevada has no rules or laws about this, so it’s discretionary. The parties can agree to include it in the decree of divorce, but the judge has no jurisdiction over it, therefore cannot force a parent to pay for the college education of a child.
Can I ask for money for extra-curricular activities for the child(ren)?
Quite possibly. Extra-curricular activities such as sports, private school tuition, costs of child care, are all items on the allowed list of deviations from the child support guidelines. (NRS125B.080). Below are some of the most common deviations:

  • Cost of health insurance
  • Cost of child care
  • Special educational needs of the child
  • Age of the child
  • Legal responsibility of parents for the support of others (such as children from a previous relationship)
  • Value of services contributed by either parent
  • Any public assistance paid to support the child
  • Any expenses reasonably related to the mother’s pregnancy and confinement
  • 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
  • The amount of time the child spends with each parent
  • Any other necessary expenses for the benefit of the child
  • The relative income of both parents

Can I move out of the State of Nevada with my children?
Leaving the state permanently or temporarily without your spouse and taking your children with you while you are married is perfectly legal. Once you file a divorce, however, the rules change. You will need your spouse’s written consent and if your spouse won’t give permission, you will need to obtain a court order from the judge assigned to your divorce case.

If the child(ren)’s habitual residence has been Nevada for at least six months and you move outside the State of Nevada with your child(ren) and your spouse subsequently files a Complaint for Divorce asking for physical custody, a Nevada judge might well order the children back to Nevada. The judge would look at your reason for moving; if moving closer to family or work was not the reason, and it appears that the move was simply malicious towards your spouse, it’s highly likely that you’d have to return the child(ren) to Nevada.

The jurisdiction of children under the Uniform Child Custody Jurisdiction Act is the state where the children have lived for the majority of the 6 months immediately preceding divorce filings.

As always, this is general information; you should always consult an attorney before taking action.

 

Author: Office of Attorney James E. Smith — http://nevadadivorce.org/about_nevada_divorce.htm

Child support for dummies and for smart people who need help

In Nevada, child support is pretty much set in stone, except for a few court-allowed deviations. You never have to scratch your head too much on how much childchild support in Nevada support has to be paid.

Essentially, it goes like this:

  • 18% of your gross income for child support for 1 child
  • 25% of your gross income for 2 children
  • 29% of your gross income for 3 children
  • and 2% more of your gross income for each additional child if you have more than 3 children.

Child support is paid to the primary physical custodian from the other parent’s wages, salary or other income.

However, if the parties have a 40/60, 60/40 or 50/50 time share of physical custody, then the Court will take a look at both parents’ incomes and figure out child support as follows:

If one parent makes $2,000 a month and the other parent makes $4,000 a month and they have 2 children, then the parent who makes $2000 per month pays the other parent $500 per month, and the parent who makes $4000 per month pays the other parent $1,000 a month. The Court subtracts the lower amount from the higher amount so that the parent who makes $4000 per month pays to the parent who makes $2000 a month $500 a month in child support. Confusing?

The example below, which you can also find at http://nevadadivorce.org/divorce_with_children.html along with the deviations for child support, should help:

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 $180 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 $180 and $144 is $36, so John pays Jane $36 per month.

Aside from child support the parents must maintain medical insurance from the children. The custom and practice in Nevada is to divide any out of pocket medical deductibles, premiums, co-pays are non-covered items equally.

The parent who incurred the expense has 30 days to submit the medical provider’s bill to the other parent, who then has 30 days to pay his or her half share.

Facts you should note about child support:

  • it is not tax deductible to the parent paying it.
  • child support in Nevada is paid up to the time the child either graduates from high school at 18 or until the child has reached the age of 19 if the child has not graduated from high school.
  • There is no legal obligation for a parent to pay for college, although the parties can contract for that in a child support agreement.
  • The minimum amount of child support in Nevada is $100 a month per child
  • The Court is able to deviate both upward and downward on the child support obligation but it’s discretion is limited, and the Court has to make specific findings for the deviation.
  • Even if the parents make the same amount of money and share legal and physical custody equally, the Court still wants the amount of the child support obligation of each parent in the Decree of Divorce or Child Custody Agreement.

This is so that the District Attorney’s Child Support Agreement will have something to enforce in case one parent leaves the children with the other parent full-time and does not start to make child support payments.

  • Child support is reviewed at least every 3 years. If there is an increase in income of more than 20% or a decrease in income of more than 20%,  then child support can be reviewed at any other time.
  • Willfully under-employment or unemployment is not eligible for a decrease in child support.
  • Child support must be paid even when the spouse who has physical custody refuses to allow  child visitation.
  • Being late 30 days will allow a wage garnishment on your wages or salary to occur.
  • Additional remedies for non-payment of child support include seizing tax returns, suspending professional  and drivers’ licenses, denying issue of a passport and possible jail time.
  • If a party gets re-married, has another child and get divorced again, child support to the first child will continue as is while additional child support to the second child will be ordered, though it will be modified due to the first obligation.

 

Alimony 101 for Nevada

SPOUSAL SUPPORT AND ALIMONY

Contrary to popular belief spousal support and alimony are alive and well in Nevada.

Spousal support is financial support given by one spouse to the other while the parties are still married,  before a divorce, usually as part of a separate maintenance action (a.ka. legal separation).

Alimony is financial support given by one spouse to the other spouse after a divorce. Alimony payments are deductible to the payor and considered income to the payee by the IRS.

Alimony is separate from any property settlement. Since women have entered the workforce, alimony isn’t granted to them as often as it was in the past when a large number of women were stay-at-home moms or homemakers.

But, again, each situation is different. Even if a woman is employed, she might be entitled to some alimony for a period of time if her income is well below that of her spouse, or if she needs to study to get a degree or training of some sort to be able to support herself. This can go both ways. If Wife has been making considerably more money than Husband, she might have to pay him spousal support, or alimony.  

If the marriage was short-term, but a spouse will suffer unduly because of a big difference in income between the parties, a judge might well grant short-term alimony to allow that spouse time to figure out how to increase his or her income. 

If one of the spouses needs to be trained, or retrained, in a career, rehabilitative alimony might be granted. If you have to pay this, it would be wise to set a termination date on it to keep the party receiving the rehabilitative alimony from stretching the training for longer than necessary. 

WHEN DOES A JUDGE CONSIDER GRANTING ALIMONY?

  • when there is a disparity in income between the parties
  • when the couple has been married or in a domestic partnership for a long period of time
  • when a spouse needs financial support because of a health issue
  • when a spouse needs retraining to get back into the workforce

Other considerations under NRS 125.150 (Nevada law on alimony) include:

  • 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

Note that Nevada is a “no fault” state,  so bad acts (such as cheating on a spouse) that do not cause economic harm or “community waste” are not grounds for temporary spousal support or alimony. If you need support right away when you file for divorce, you can file a motion with Family Court for temporary spousal support. This will get you a hearing in front of the judge sooner.

In Nevada, a judge has a lot of discretion in deciding whether to grant alimony or not, as well as how much and for how long:

  • If it’s a marriage of less than 3 years, alimony is unlikely though not impossible.
  • If the marriage is from 3 to 20 years, alimony could be granted for as many years as half of the length of the marriage,  e.g, if married for 10 years, alimony is paid for five years.
  • If the marriage was longer than 20 years then permanent alimony is highly possible, and even likely.

You can read a summary of the statutes here.

If you prefer, you can read the entire divorce statutes, NRS Chapter 125,  on the Nevada Statutes website

WHEN DOES ALIMONY CEASE?

By law (in Nevada), alimony stops when the spouse receiving alimony either passes away or remarries.

You can modify alimony if there is an increase or decrease of 20% of more in the paying party’s income.  This is considered a change of circumstances. However, the Court will look to see if the payor is under-employing or un-employing himself to avoid paying an amount he or she does not wish to pay. A motion for change must be made in good faith, such as a lack of employment opportunities or a change in health making it impossible to continue paying the same amount due to loss of income because of it.  A request to modify alimony must be made in good faith.

Parties also have the option to stipulate to non-modifiable alimony which would preclude a modification motion. An option to monthly alimony payments is a lump sum non-modifiable alimony.  In fact, with much older couples the Court will often consider lump sum alimony instead of periodic payments simply to avoid the payee becoming suddenly destitute because of the untimely death of the payor.

Ready to file your divorce, or have questions about filing? We’re here

Thinking of hiring a typing service or independent paralegal for your divorce?

paralegalBecause of a new law in Nevada, paralegals and legal document typists now have to act only as scriveners and cannot give any sort of advice or guidance to their clients. They are also more closely regulated by both the Secretary Of State and the Nevada State Bar. Paralegals who are non-attorney supervised can only assist the public through entities called Document Preparation Services.  All paralegals are required to be registered with the State of Nevada, exemptions limited to employees of lawyers and certain nonprofit entities.

Under the new law (NRS 240A), a Document Preparation Service (DPS) must register with the Secretary Of State, be issued a unique registration number, and post a $50,000 bond to protect the public against fraud and/or incompetence, all before they can do business in Nevada. The law makes clear a distinction between document preparation services and the practice of law. The Nevada Bar has authority to charge the DPS with the unauthorized practice of law and subject the DPS provider to misdemeanor charges as well as cease and desist orders.

This new law regulates what a DPS can and cannot do. One of the things they are forbidden to do is give legal advice.

What you need to know if you plan to file your own case at court and have the documents typed by a paralegal or typing service instead of being represented by an attorney:

  • Paralegals who own and, or, operate, a DPS would be advised to have their clients consult with a lawyer first so that the client is not only properly advised, but also understands clearly which forms to ask the DPS to type.
  • Only after that consultation with the attorney can the DPS type up, as a scrivener, whatever legal documents have been advised by the lawyer should be filed for a specific type of case.
  • This new law does not permit a paralegal or typing service to advise a client of a mistake they might be making when requesting that any certain document be typed up and filed. Should this situation occur, the only option left to the paralegal or typing service is to tell the client to consult with an attorney before coming back to him or her for the typing of the documents.
  • The DPS must have a written contract with each client clearly stating its fees.
  • The DPS contract must provide client with an estimate of time it will take to prepare the documents requested by client.
  • The contract between the DPS and the client must state that the document preparer is not an attorney.
  • The contract must also state that the client has the right to file a complaint with either the Secretary Of State or the Nevada Bar against the DPS for any wrongdoing.
  • DPS must give written notice to the client that no attorney will represent client at court.
  • DPS must show each client its bond and Secretary of State registration information.
  • DPS must provide client with the names of all document preparers working in its offfices.
  • The contract and notice must be translated into Spanish or into any other native language of any clients serviced by the DPS.
  • The client must be told that they are not protected by the attorney/client privilege insofar as his or her discussions with the document preparer.
  • DPS must provide client with its local business license(s).
  • Receipts must be given and monthly statements if appropriate–all on the letterhead of the DPS
  • The letterhead for the DPS must contain its address, phone, tax identification number and registration number with the Nevada Secretary Of State.
  • What many people don’t understand when they hire a paralegal or typing service is that they are representing themselves at court. Even if a client hires a paralegal or typing service that claims that they are “attorney supervised,” only the client’s name(s) appear on the court pleadings; not the name of the attorney who supervises the typing service.

Should a DPS be found to break any of the above rules, the Nevada State Bar would send them a Cease and Desist through Civil Court. If the DPS does not abide by it, the Attorney General will file criminal charges against the DPS, and, or force the service to close.

Author: Attorney James E. Smith — http://nevadadivorce.org/about_nevada_divorce.htm

What Does Conscious Uncoupling Have to Do with Divorce?

divorce mediation and conscious uncouplingGwyneth Paltrow certainly got tongues wagging with her way of handling, and looking at, the dissolution of her marriage to Chris Martin. Perhaps in the future couples will say that they are uncoupling rather than divorcing. The more enlightened ones might even say that they’re undergoing a “conscious uncoupling” as Ms. Paltrow said. With people living longer than ever, and our world advancing at an unprecedented pace, marriage might one day not be expected to last forever. This is merely an exploration of what might be and not said to offend those who still believe that couples should mate for life.

No matter what you choose to call it, if you married legally and no longer want the relationship, it all boils down to divorcing, albeit if done consciously, it will be without fighting, without “punishing” your soon-to-be-ex by manipulating community funds, or taking all the money out of mutual accounts, without using the kids to fight battles, without bashing your spouse to anyone who will listen.
You could say that conscious uncoupling is a collaborative divorce, albeit one on steroids, since the premise behind conscious uncoupling includes nurturing the spiritual aspect of divorce.

If you think about it, divorce involves moving forward and changing for both parties, for the children too, even. Moving forward in life and changing is essentially personal growth. Furthermore, personal growth and spirituality go hand in hand. When you make personal growth a priority in your life, you become spiritual; when you make spirituality a priority, in time you grow into your best self.
The best way to keep a divorce civil, to remain conscious during the split, is to divorce in a non-combative, collaborative way.
What’s the best way to do so?

Resign yourself to biting your tongue a lot throughout the process, for one. In other words, commit to remaining civil with your spouse at all times. During negotiations over how to split the bills and any money you both have a right to, commit to not blurting out what he or she did that might have brought on the divorce, such as cheating, or not helping carry the load, or allowing the kids to eat Cheetos for breakfast in front of the T.V. It has nothing to do with property and debt division. Same with going off about money in the middle of a conversation to decide physical custody and visitation.
Be open-minded when discussing physical custody and visitation with the children. That other person is still their parent, just like you. Also, arrangements about the children that work for John and Mary may not be the best thing for your family. Think. What’s right for your particular situation? Don’t just mimic what other people are doing. Both parents should spend a few days going over in their own mind how it might best be handled and then, if not able to share it with each other in person because you fear you’ll fight about it, do it by email until you can come up with a plan that works best for the children to continue thriving between your two households. Be careful and conscious before you click Send.
Do the same when deciding how you’ll split property and debts and any retirement accounts.

Lastly, agree to disagree civilly on the things there is no way you’ll ever agree on—these things are most likely the reasons for your divorce. People do keep growing as individuals and sometimes, unfortunately, you grow at a different rate, or in a different direction from your spouse. If you aim to be a conscious, spiritual person, or just someone who wants the best for your children, someone who wants to respect the love you once had for the person you are now divorcing, you will aim for a conscious uncoupling.

If you feel you might have difficulty negotiating directly with your spouse, especially if you have children and property to divide, you might consider a mediation session with a qualified divorce mediator, many of whom are family law attorneys. A divorce with terms arrived at with the help of a licensed, professional mediator is known as a Collaborative Divorce, or Mediated Divorce. We explain this in detail here.

In a large majority of divorce mediation cases that come through our office, just an hour or two resolves all issues. Besides feeling good about your conscious uncoupling, the glicken is that you stand to save  thousands of dollars in attorney fees.

Author: Attorney James E. Smith — http://nevadadivorce.org/about_nevada_divorce.htm

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