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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.

 

6 Most-asked Questions Regarding Residency for a Nevada Divorce

You’ll find much incorrect information surrounding how to establish residency for aResidency for a Nevada divorce 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:

  1. 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.

  1. 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.

  1. 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.
  1. 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.

  1. 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.

  1. 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.

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

Are Physical Custody and Legal Custody the same thing?

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.child physical and legal custody

  • 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:

  • education
  • religion
  • 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.

How to obtain a divorce when your spouse has disappeared

how to obtain a divorce when your spouse has disappearedIt’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

 

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

alimony_spousal_support

Contrary to popular belief spousal support and alimony are alive and well in Nevada and might well be granted in a divorce.

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 the advent of women in the work force, alimony isn’t granted as often as it was in divorces in the past when a lot of women were stay-at-home moms or homemakers.

However, under the following conditions, a judge will still consider 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 work force

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 spousal support right away when you file for divorce, you must file a motion 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.

Alimony ceases by operation of law on death or remarriage of the spouse receiving alimony. Alimony can be modified if there is an increase or decrease of 20% of more in the paying party’s income.  This is a change of circumstances. However, the Court will look to see if the payor is underemploying or unemploying himself to make sure that the modification motion is 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.

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

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

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