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What is the Difference Between a Legal Separation and Divorce?

In Nevada, when you decide to dissolve a marriage relationship, you have two options:legal separation versus divorce

  1. File a divorce, unless you object to divorce for religious or personal reasons, or you are uncertain if you want to dissolve the marriage.
  2. If you don’t want to completely sever the marital ties, you have the option to file an action for separate maintenance instead, also commonly known as a legal separation.

Couples who wish to protect themselves from the financial obligations entered into by their spouse after a separation, but either object to divorce or want to take some time before filing for one, usually choose this option.

Another reason for choosing a legal separation over divorce is when one party is on the health insurance of the other and does not want to lose the coverage it offers.

If a divorce is filed later, the terms of the Separate Maintenance are incorporated into the Decree of Divorce.

Essentially, a legal separation addresses all issues normally addressed in a divorce, falling just short of dissolving the marriage.

Issues addressed in both divorce and separate maintenance:

  1. Spousal and child support.
  2. Possession and/or division of community property and deb.
  3. How future income property and debt are to be handled.
  4. Disclosure and modification provisions.
  5. Relationship to divorce decree and reconciliation.
  6. Tax issues.
  7. Attorney’s fees.
  8. Estate planning.

Before filing for divorce, which dissolves the marriage completely, especially when you have minor children, it’s wise to consider filing a legal separation first as a way to test if you really do wish to end the marriage.

Below are some circumstances and conditions under which you should consider a legal separation instead of a divorce:

  1. Older couple where medical insurance and spousal benefits are important.
  2. Couple with children who want to cause minimal trauma to children during separation.
  3. Couple who are on the fence about divorce and want to do a trial separation.
  4. Long marriage where the cost and consequences of unwinding the community property is not worth the attorney’s fees, appraisal costs and expert fees.

Often separate maintenance provisions have a clause that indicates that in the event of a divorce the obligations, duties, rights and responsibilities contained in the decree of separate maintenance will be incorporated by reference into the decree of divorce.

In Nevada, a court filing for a separate maintenance cannot be done as a joint petition, as there is no Nevada Revised Statute allowing for a joint decree of separate maintenance, whereas it is possible to file a joint petition for divorce and obtain a decree of divorce.

The parties are free to include any provisions in their legal separations or divorce pleadings as long as they are in compliance in with the law and not against public policy. For example, in Nevada, parties to a divorce or separate maintenance cannot agree to lump sum child support. The Supreme Court has ruled against that.

Courts always reserve the power to look out for the best interests of the children. The contract is between the parents; the children are the concern of the State.

If the parties reconcile after a legal separation filing, the decree of legal separation will be terminated; if the parties separate again, a new legal separation filing will be required unless the first filing contained a provision that the first decree of legal separation will continue in full force if the parties reconcile then separate anew.

In a divorce, there is a six months period of time during which the parties can ask the court to have the final decree of divorce set aside. After six months has elapsed, the parties’ only option if they wish to reconcile is to get married again.

 

Should you seal your Nevada divorce file at court?

Seal your Nevada Divorce CaseFirst 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.

 

How to file a one-signature divorce in Nevada

This is a question we get asked so often from both annulment and divorce clients that one-signature divorce in Nevadawe 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

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

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

5 Most Asked Questions About Filing a Divorce or Annulment in Nevada

5 Most Asked Questions About Filing a Divorce or AnnulmentIn our busy family law office, there are certain questions that, regardless of their situation, ALL clients ask us during their first conversation with us.  Here are the 5 Most Asked Questions About Filing a Divorce or Annulment in Nevada –  questions we hear every day. And, more importantly, the answers.

1.  Am I eligible to file in Nevada?
Divorce: To be eligible to file a divorce in Nevada, you must have lived in Nevada for a minimum of six weeks before filing. The court will require proof of your residency in the form of an affidavit by another Nevada resident. This affidavit will state that you have lived in Nevada for a minimum of six weeks before filing your divorce action and that you have the intent to remain in Nevada.

Annulment: If you were married in Nevada, there is no residency requirement for filing an annulment here. If you were married outside Nevada, the same residency rule for filing a divorce applies to an annulment.

2. I’ve never done this before. What kind of divorce (annulment) do I need to file?
In a divorce, if your spouse and you agree on all the issues, and your spouse is willing to sign divorce papers, you’ll want to file a Joint Petition Divorce. If your spouse does not agree to sign the papers,  you’ll want to file a Complaint for Divorce (which requires only your signature to file). Click here to read the procedure to follow in detail if your spouse won’t sign divorce papers.

For an annulment, when both parties sign, the annulment case is either filed as a Joint Petition for Annulment or as a Complaint/Answer. Which of these you can file depends on the valid reason for your annulment (we can help with that). When only one party signs, a Complaint for Annulment is filed followed by process service. Click here for details on filing an annulment when your spouse won’t sign the papers.

3. What if I can’t find my spouse?
For either an annulment or a divorce, we file your case, get a Summons issued and then procedure requires us to do what’s called a “skip-trace” based on your spouse’s last-known address in an attempt to find him or her. If the process server is able to find your spouse based on the skip-trace search, the process server will attempt to serve the Complaint for Divorce and the Summons on your spouse.
If the process server is unable to find your spouse, he or she will provide us with an Affidavit of Due Diligence, which must be filed before the judge will sign an Order to Publish. The Summons will be published once a week for five weeks as per court requirement.

In both above instances, the Defendant has 21 days to file an Answer and Counterclaim at court after he or she has been served, either personally, or through the process of publication. If, after being served, the Defendant does not respond by filing an Answer and Counterclaim, a Default will be requested and once granted, the final decree submitted for the judge’s signature.

4. How much does it cost?
Uncontested Divorce:

  •  If both parties sign the divorce documents, the attorney fee ranges from $350-$425 (plus court costs).
  • If only one of the parties to the divorce signs the documents, the attorney fee is $650, provided the Defendant does not contest the divorce (plus court costs). If only one party signs, the other party will have to be served with the Complaint and Summons; the cost of the process server varies.

Uncontested Annulment:

  • If both parties sign, the attorney fee is $499, plus court costs.
  • If only one party signs, the attorney fee is $799. Court costs and process service costs are separate.

We add up the attorney fee and the court costs and divide the total into two equal payments. The process server fees are collected approximately 10 days after filing, right after the Summons has been issued by the Court.

5.  How long will my divorce or annulment take?

Whether it’s a divorce or annulment, if both parties sign the papers, it takes 1-2 weeks, at the most 3 weeks (if the court is very busy) for the judge to sign the final decree of divorce  or final decree of annulment, after which the decree is filed with the court clerk, the last required step to finalize your divorce or annulment.

If your spouse did not sign the documents, it will take approximately 6-10 weeks to finalize your case if your spouse can be served personally, and approximately 16-20 weeks (sometimes longer) if publication must take place.

We hope we’ve answered these 5 most asked questions about filing a divorce or annulment in Nevada in a way you understand. If not, feel free to contact us for clarification.

Conexa Nevada Divorce provides attorney representation at paralegal prices and we are happy to answer any of your questions, whether it’s about filing divorce papers in Las Vegas, Nevada or getting an annulment in Las Vegas, Nevada or both.

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

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