by Discount Las Vegas Lawyer. https://nevadadivorce.org and https://discountlasvegaslawyer.com/nevada-divorce-attorney/
You are about to get started with a divorce in Nevada and wonder what is community property.
How are community property and community debts divided in a divorce? Read on to know where you stand.
NEVADA IS A COMMUNITY PROPERTY STATE
This means that, in a marriage, the name under which an asset is held does not determine which spouse holds an interest in it. This means that even if you buy a house in your name only while married, the house belongs to both your spouse and you (unless your spouse signed a waiver during the purchase).
What’s important is whether the married couple purchased the house during the marriage—and what source of funds were used to make the purchase.
If you have a prenuptial or postnuptial agreement that addresses property and debts what we say here does not pertain to you. Your pre or postnuptial agreement would prevail.
This article assumes that you live in Nevada and do not have a prenuptial or postnuptial agreement.
HOW EQUITY IN A HOME COULD BE DIVIDED
Let’s say you purchased your home before the marriage and once married, you make the mortgage payments from a joint account. If you live in Nevada, this would give your spouse a right to half of any equity increase in the home since the date of the marriage. Before equity distribution, however, your down payment would be returned to you if you sold the house as a part of the property settlement.
Let’s follow John and Mary for a simplified example of the above.
- Mary purchases a home on her own before her marriage to John.
- She puts $10,000 down on the home.
- Once married, the couple opens a joint bank account and makes the mortgage payment with funds from that account.
- After five years of marriage, they divorce.
- Since the date of the marriage, the home has increased in equity by $30,000.
- They sell the home as part of their marital settlement.
- Mary gets her $10,000 down payment back
- The remaining $20,000 in equity is divided between them.
- Any equity from before the date of the marriage belongs to Mary.
HOW ANY OTHER PROPERTY MIGHT BE DIVIDED
The same goes with any other property purchased after the marriage, such as a car, fine art, or jewelry. In community property states, it doesn’t matter in whose name the property (houses, cars, furniture, art work, electronics, etc.) is held under.
Let’s go back to John and Mary.
- A year after they married, the couple buys a vintage car.
- They use funds from their joint account to pay for it, $16,000 in cash.
- John has the car registered in his name only because it was just easier.
- When they divorce, John gives Mary $10,000 for her share of the car now worth $20,000.
- It doesn’t matter that the car is in John’s name only.
In Nevada, the earnings of either party during the marriage belong to both parties. If one of you makes more money than the other and deposits more into a joint savings account, you’re both entitled to half of those funds, not just what you each deposited into the account.
If you keep ownership of real, or other, property and bank accounts separate and don’t use community funds to augment them or to pay for maintaining them, such as maintaining a house you owned before the marriage, then said property and accounts will remain your separate property.
Inherited property doesn’t fall under Nevada community property, BUT there’s a caveat.
For example, John’s mother passed away two years into his marriage and left him a mortgage-free house worth $200,000.
John never used community assets for upkeep because his mother also left him some money for that purpose. John has never commingled those funds. The house belongs to John only and Mary has no rights to it.
If John quitclaims the house to Mary and himself after he inherits it, Mary now has a right to any equity increase in the house from the time he recorded the quitclaim deed. If the house remains in his name only, but he uses community property funds to maintain the house, Mary now has a claim to the house because John gifted the house to their community interest by using community funds.
COMMINGLING OF FUNDS
We find that commingling of funds, mixing separate property with community property, such as John paying to fix the house his mother gave him with funds from a joint account he has with Mary, is the usual way separate property becomes community property. We refer to this as transmutation. There is a presumption that when you donate separate property to the community that it is a gift to the community interest.
The parties share any debt entered into by either spouse during the marriage.
Let’s say John took out a credit card in his name only while married to Mary and stopped making payments at some point. Mary is responsible for that debt same as if she’d opened the account herself. Creditors will look to her for payback if John does not pay.
If the final decree of divorce states that John is responsible for paying back the debt, the creditor still has the right to go after Mary for payments if John defaults.
Though Family Court has jurisdiction over John and Mary, it has no jurisdiction over a third party such as a credit card company. Usually, credit card companies do not go after an ex-spouse to collect, but it has happened, and they have a right to collect from Mary.
Same thing with any debt at all, be it a car, a house, furniture, or art work. Say John bought a car during the marriage, in his name only, and he gets the car as a part of the divorce settlement. But, also as a part of their settlement, Mary takes responsibility for the car payments. A year after the divorce, she defaults on the payments: the car company will repossess it from John even though it’s Mary’s debt, not his.
The bottom line is that Nevada is not a title state but a community property state. For the purposes of a divorce, a community is like a partnership with each party reaping benefits for both partners or incurring debt for both of them. The two become one.
NRS 125.150 is where you’ll find the Nevada statutes that pertain to division of property in a divorce.
Do you wonder if you’ll have to pay alimony if you divorce? Or spousal support if you separate? This article will explain it.
If you have questions about how to divide your property in your divorce, or if you’re ready to get started with your divorce, read more here
I recently discovered my husband of only three years has large sum of child support arrears.
He does not use joint bank account to make payments.
Will I be responsible for this debt also via marriage?
MJ, best to call our office on this one. There are too many variables to discuss it here. 702-420-7052
Thanks for the blog.
You’re welcome, Marie!
Before I got married my mom and I bought a house. The House was purchased with her Inheritance from her mom. House paid in full at time of purchase. Currently my husband and I live in the house. I want to get divorced. Would he be Entitled to any part of the house. We will have been married a year in January.
Marilyn, provided your spouse didn’t pay for anything for the house, that you didn’t use community funds for maintenance and home improvements, then it would be all yours. Otherwise, he would be entitled to 50% of any built-up equity during the marriage.
I bought my house before I married my wife , we were married a few months after I purchased the real property, 4 years later it’s a bit rocky and just about a year ago we jointly rolled our bank account together, I put the down payment on the house myself
If we divorce , how might that go down in court
Elliot, she’d be eligible for half of the equity increase since the marriage. Before the equity is divided, you’d get your down payment.
I am going to get divorced from my husband of 12 years. His Dad died a few years back and his condo was sold and then his mom helped us to find a townhouse that was affordable from the money obtained in the sale of his dad condo. The new property was put in his mother’s name and his name. Do I have any rights to that property? It’s completely paid off and no monies are owed on it.
an inheritance is not considered community property. The only way it would be is if community property funds were used for any mortgage payments before it was paid off, or used for maintenance or upgrades.
My wife decided she wants a divorce. We put money down on a purchase of a home that was from an inheritance of hers. The home was titled to both our names and after the sale we received a check and put it in savings account we both access. She has taken funds from savings and is withholding them from me. Am I intitled to a share of finances that where commingled into a marital asset?
Duane, this is a touchy subject, best consult with an attorney about your specific situation.
what if my husband and i decide to pay each of our debts separately (verbal) and just file for joint divorce? would that go under “any community debt has already been divided”?
Hello Em, that’s acceptable. Do address that in the joint petition divorce in case there’s ever an issue with payments being made. Creditors can come after a spouse, or ex-spouse, if payments aren’t being made (community property). If you have a final decree of divorce that states you are each responsible for debts incurred in each of your names only, they are less likely to come after you if your spouse stops making payments.
I am curious about gifts given between spouses.
For example, If I bought a ring for my husband as a gift, using my own separate monies from a prenuptial settlement (kept in a separate non shared account) I would personally consider that item as his if we divorced. Would the court agree?
Secondly, if we gave each other at various times pieces of jewelry or other items which we called gifts (xmas, birthday, special occasions), purchased from monies kept in a jointly held account, but only funded by monies he inherited, would we have to split them or would they be considered sole and separate property by the recipient, or would they have to be divided ?
Hello Jane, a gift is a gift; it doesn’t matter whose money was used to buy it either. Gifts given without an attachment of some sort are just that: a gift you get to keep. A gift given with an attachment, however, such as an engagement ring given with the promise of marriage and the marriage not taking place, that gift goes back to the giver unless the giver says you can keep it. If you got an engagement ring and you then married, the ring stays with you because the promise of marriage was fulfilled.
Wow! I didn’t know that all the money made during the marriage had to be split equally at the divorce! My ex made over $5,000 a month and I only made minimum wage. We both did upkeep on the house. Except that I used my money for the extras, like paint and cabinets. He only replaced the carpet. He never would put me on his bank account. At the divorce he said I spent all my money on myself. But, he spent all his money on his bad habits. Doesn’t he owe me quite a bit of money???
Hi Patricia, you were most likely owed something in the divorce based on what you say here. However, you’ll have to address the court with your findings and how the court will look at it will depend on how long ago you were divorced. It it’s been less than six months, you can certainly petition to have the divorce set aside and then revisit everything. Without more details, it’s best for you to consult with an attorney about this issue.
Wondering me and my still married wife have lived apart for 2 and 1/2 years.. with no cohabitation witchin that time.. are we classified as separated due to grounds clause in divorce
Hello Jeff, you are separated if you’re living apart, but you’re still married until a divorce is granted.
I purchased a home before getting married. We have a joint bank account, but he has been out of work for almost two years. Therefore, it has been only me paying the mortgage. Would this still fall into community property. So out of the three years we’ve been married, and three years in this house, I’ve been paying the mortgage for two of them. Also, when he did work I made more money when he did work, so I have had the responsibility of paying the mortgage for the entire duration.
Josie, community property includes income made by either party during the time of the marriage. As far as the marital home, it would remain yours since you bought it before the marriage, but you might have to give your spouse his share of the equity which would be half of any equity increase since the date of the marriage. I’m going to use small numbers to demonstrate. Say you bought a $100,000 house and put $20,000 down on it. Now say it was worth $110,000 when you got married and it’s now worth $140,000, which means a $30,000 increase in equity during the marriage. You would first subtract your down payment from the $30,000 increase, leaving $10,000 to be split between your spouse and you. I hope this helps.
I purchased a home here in Nevada in2010 moved out here. My son and daughter in law live with me. My son who I put on the house 1 year ago is going through problems now. Is she entitle to my home.
Hello Judy, she could be entitled to half of his share of the equity. It would be up to a judge.
I have a friend in an abusive relationship in Nevada she wants to divorce him but is scared he will run up their credit cards when she does. Does she have any protection or recourse?
She should reach out to a women’s shelter. They’ll help her. The divorce can be filed with a preliminary injunction. This way, if he charges up the cards, she can ask that he pay the bills.
My father passed away, he was divorced and it’s only my sister and myself. Im currently going through a divorce…who would get the property and assets if I wish not to receive anything and just let my sister take it all?
Kimberly, inheritance, as long as you haven’t commingled it into community property (meaning deposited it into a joint account or used it to fix up the marital home, for instance), is yours alone. Your spouse isn’t entitled to any of it.
After my husband and I separated, I purchased another home. During this time I used my own money/own bank account to fix up the home. Will my husband be entitled to the proceeds when I sell the home in our divorce?
Hi Julie, if your husband willingly signs divorce documents that state the house is yours alone, you’re good. However, if you end up in a divorce trial, it will be up to the judge. He or she will want lots of details, and will consider other property you both own. Until the divorce is final, legally speaking, the house belongs to both of you since it falls under community property. It’s highly likely a judge would let you keep the house based on what you say, however it depends on what financial shape your spouse is in; if he’s destitute and his share of the equity is his only financial cushion, the judge might grant him his portion of the equity. That’s the best I can do on a response without more details.
My spouse and I are agreeing to uncontested divorce. The home we have resided in for 10 years (married only 5 of the 10 years) is only in my spouses name. I however, put down the money for down payment and also additional costs for upgrades at time of purchase. Both of us work and have a joint account which we have paid monthly mortgage payments and household costs. From what I understand from this article it appears the equity would be divided equally from the time of actual marriage? Please advise. Thank you in advance.
Yes, Sharon, in this scenario, you would be entitled to half of the equity increase since the marriage.
Been married for 28 years and want to get a divorce. My name is on almost all the credit cards and i have accumulated most of the debt. Will I be responsible for all that debt?
you could be. Though in a community property state like Nevada both parties are responsible for debt no matter whose name is on it, our family courts are discretionary and if the judge can see that you accumulated most of the debt after you separated, s/he could well say that you must keep it and pay it yourself.
my sister husband passed a away, leaving property with no will. IT has gone to probate, but daughter thinks she could get all the money. Where is the community property, the money to purchase the property was both their money. I HE did put her name on the contract. So what rightsa did she have?
I made a mistake it the the comment I sent you. She is not on the title of the property.
this isn’t a divorce question, but I can say that your sister is the heir to her husband unless he made arrangements to the contrary.
My spouse of over 10 years will be sentenced in 2 weeks for the molestation of my oldest son for 6 years of his childhood. We are pushing for the max sentence. I know that the VA will already be allocating most if not all of his benefits for disability to me and my kids but I want to put all of the debt in the divorce on him. I know I run the risk of creditors coming back to me but for those that won’t it will help a great deal. With him possibly being in prison for life or at least 25 years will I be able to still do it this way?
Hello Rachelle, that sentence is separate from the divorce. You can divide the debts however you wish. Reach out if you need help filing the divorce. Will he sign the paperwork?
My ex husband sold his home in CA, and we purchased a home in NV for cash from the sale of his home. All the monies went through his bank, never co mingled, but I’m on the grant deed and sale.
Am I entitled to half the home?
Susan, that would depend on the judge. Some of them in our court don’t seems to give much weight to deeds; commingling funds is what they consider important.
Before marriage I owned a house for 12 in my name. My wife made no contribution to its upkeep, but money was used from a joint account she was added too after marriage. Several days before the property sale, she signed a Grant, Bargain and Sale Deed, which is on filed at the Clark County Recorder, granting me sole and separate property. The understanding and agreement was this was all my money. The sales money was deposited into the only account I had, our joint saving account. During the marriage, she never made any deposits, or spent one penny from this account. Now she is claiming half of this money from the sale of my house is hers. Is there any exceptions to the community property law, since all claim to the property had been waived?
If the money is in a joint account it is considered commingled. Some judges don’t seem to pay much attention to deeds. If you want to keep property separate then don’t let the other person contribute to its maintenance or use joint funds to make payments or for maintenance and updates to said property.
My wife and I have been separated over a year now she is not willing to divorce me without a fight . So I have been procrastinating about starting process . Being that I’m still legally married am I able to purchase a home without her in state of Nevada
It could be an issue as Nevada is a community property state so she’s technically half-owner of any property you purchase during the marriage. You can divorce even if she doesn’t want to; we can file a one-signature divorce and have her served.
Hello my name is Lana I’ll be married 2 years this April, but together 7 years all together, he bought the house before we got married, the marriage is not working out, am I entitled to half of the house if we were to sell.. I am not on any of his bank accounts..
provided you didn’t sign your rights away on the house, and provided he used community property funds to make payments and do maintenance on the house, you are entitled to half of the equity increase in the house since the date of your marriage. He’d get his down payment back before any equity split. A simple example: if there is a $10000 increase in equity since the date of the marriage, and he put down $3000, you would split the remaining $7000 50/50.
Husband and I have only lived together 5 months in last 3.5 years. He has had his income direct deposited to bank account only his name for majority of marriage and makes bulk of income. Will money he has amassed in these accounts while we have been physically separated (although legally married) be divided equally under Nevada’s community property laws? Thank you in advance for taking the time to respond.
Nevada is a community property state. It does not matter in whose name any asset is held; it belongs to both parties equally. Separation technically does not matter, but if the case were to end up in court, it’s possible that your judge would take it under consideration.
My wife and I purchased a home 4 years ago. Our down payment was a gift from a friend of ours. A year later that friend decided she wanted us to pay her back. There was never any paperwork drawn up after she decided she wanted us to pay it back. There is not contract, no signatures, nothing that even shows this gift/loan exists. We have been making payments to the lady for 2 yrs now but now my wife and I are divorcing. She is keeping the house and buying me out but wants to deduct half of the remainder of the gift/loan from my equity. Since there is nothing written or signed that legitimizes that money was a loan am I in the eyes of the court responsible to give half of that gift out of my equity?
It’s difficult to say since this is a discretionary court, but it’s quite likely that this would be the case, especially if the lady who made the loan comes forward to state that she did loan the money and she has been accepting payments from both of you for some time.
My father wants to give me a house that he has completely paid off. I’m thinking about divorce. Is there a way I can receive the condo but not have to split it if I actually get divorced?
You could take title as a married woman, separate property, or your father could create a living trust with you as co-trustee and beneficiary. If you want help with that, call our office 702-680-1780.
My husband and I have been married for 50 years but have not lived together for at least 20 years. We have quite a few assets, mostly real estate & stock, that are in a trust. My question is: what happens to the assets if we divorce? Does the Trust stay intact with all the assets?
Nevada is a community property state, which means that the even if your assets are in a trust they will still need to be divided between both parties.
I agree with the points made in this article and found the information and data cited to be relevant and useful. Your writing style is clear and concise, making the article easy to read and understand. Thank you for sharing your insights with the community.
Say that Mary purchases a house ten months before marrying John. John and Mary never open a joint bank account; instead, they keep their banking accounts separate for the entirety of their marriage.
However, John occasionally gives Mary money from his bank account to cover Mary’s mortgage payment. Mary pays the monthly mortgage with money she earns each month of the marriage. John also gives Mary money he earns during the marriage to pay for home repairs and upkeep.
Ten years later, Mary and John divorce. The home value at that point has increased by $200,000 beyond Mary’s initial downpayment. Does this equity get divided equally?
Nevada is a community property state, in the case of Mary and John if they lived in the home for those 10 years. It means that that John will most likely get half of the equity. If Mary or John have more questions they are welcome to give our office a call at 702-680-1780
I am of retirement age and my intended spouse is not. I am currently receiving a pension; is money I receive from that pension considered separate property? I will start receiving social security within a few years; will that money be considered separate property?
Suppose I sell my current house and use the proceeds for a down payment on a new house that is titled in my name only, but I still have a mortgage. Since money is fungible, do I have to make sure there is a direct chain of money from my separate property to the mortgage payments to ensure the new house remains separate property?
If we are living in the house together, if joint funds are spent on items like property taxes, HOA fees, and maintenance, would that cause my spouse to have an equity interest in the house?
Unless you had a prenup in Nevada everything is community property. You are welcome to call our office at 702-680-1780 for more information.
We have a situation where a couple divorced years ago and one spouse is trying to get money back from the other spouse from reckless spending that occurred while they were married. This money was spent from a joint account. Does she have any legal recourse to get the money back? Nothing was written about this money “owed” in the divorce decree.
In some cases the court does not let people file years later. It just depends on the judge and the situation. You are welcome to call our office for more information 702-680-1780. thank you!
I found this article to be very informative and well-written. Thank you for sharing your insights and expertise on this topic. I look forward to reading more from you in the future.