If you have children under the age of 18 with your current spouse, and the children reside in Nevada with you, they must have resided in the state for a minimum of six months before Nevada District Court Family Division will take jurisdiction over them, in the event of a divorce.
There is some confusion over this because you, as a party to the divorce, are considered a Nevada resident after living here consistently for six weeks and you can file a divorce at that point. You can’t address issues of child custody, visitation, or child support. At the six-month mark, Nevada is considered the “home state” of the children and the Court will pass rulings on physical custody, visitation, and child support.
What prevents the court from taking jurisdiction over the children until they have lived here for six months is the Uniform Child Custody Jurisdiction Act (UCCJA). This came into effect in 1968 and by 1981, it had been adopted by every state in the U.S. This law was designed to discourage parents from taking their children to another state without the permission of the other parent, as was happening on a frequent basis in divorce situation, creating confusion, not only for the children, but for the courts who had to make rulings on the residency of the children involved.
As you can read here, the UCCJA operates upon novel principles that:
1) establish jurisdiction over a child custody case in one state; and,
2) protect the order of that state from modification in any other state, so long as the original state retains jurisdiction over the case.
If a non-custodial parent cannot take a child to another state and petition the court of that state for a favorable modification of an existing custody order, the incentive to run with the child is greatly diminished. There are exceptions, however.
Did you move to Nevada with your minor children less than six months ago and are now divorcing? Is the safety of a child at stake because of bad behavior on their other parent’s part? If so, Family Court here can make an exemption to the six-month residency rule in a Nevada divorce and the residency of minor child.
If you are able to show an emergency as defined by Uniform Child Custody Jurisdiction Act, a Nevada judge could make a ruling over your child(ren) who have resided in Nevada for less than the required six months. This could be either a temporary, or permanent ruling.
You’ll find much incorrect information surrounding how to establish residency for a Nevada divorce, or a Nevada annulment while browsing online. Not surprisingly, this is one of the most-asked questions we receive. 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 when it comes to filing a Nevada divorce:
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 not long before you plan to file a divorce, be sure to make some friends in your neighborhood or at work. You will need your resident witness to sign an affidavit that states that not only has he or she known you to have lived in Nevada for 6 weeks, but that he or she sees you three to four times per week. If you have children and they live here with you in Nevada, they must reside here for 6 months before the Court will exercise jurisdiction over their custody and visitation.
Do I have to change my driver’s license to Nevada before I sign my Nevada 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 photo identification and evidence that you actually now reside in Nevada we will notarize your signature reminding you that you are under oath.
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.
If your divorce is uncontested, it’s highly unlikely that you’ll have to appear in court and show as much proof of your residency, 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 moved here for a legitimate reason (work, family, etc.) and have the intent to remain.
Under the above 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 at least until your uncontested divorce is granted.
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. When an immigration application for a visa was filed after the Nevada divorce was granted, the immigration officer wanted much more evidence of the applicant’s Nevada residency 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 or her time and is the home that is recognized as yours by law. For instance, you have a driver’s license issued by that state, and/or you claim Nevada as your home state on your tax filings, and/or you claim Nevada as your home state on your LES if you are military.
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. Context is everything when it comes to legal residence.