Services: Domestic Violence: Resource Manual - Divorce (Section 10, Part 1)

1. How do you end a marriage in Nevada?

Various procedures may be used to end a marriage that breaks down, including annulment, separation and divorce.

Annulment is a court-ordered dissolution of an invalid marriage. The Decree of Annulment nullifies a marriage from its beginning and is granted in situations where no valid marriage exists because of a legal defect. In Nevada, the grounds for annulment are: a void marriage (because the parties are too closely related to one another or one of the parties already has a husband or wife); the lack of consent of the parent or guardian of any party to the marriage who has not reached the age of 18; the fact that the consent of a party to the marriage was obtained by fraud; or because a "want of understanding" of a party made him or her incapable of consenting to the marriage.

Separate Maintenance: Sometimes, for religious, economic or other reasons, the parties may prefer a legal separation to a divorce. A Decree of Separate Maintenance, like a divorce, determines the terms for custody and visitation schedules (if applicable) of any children, divides your property and debts, determines how much child support a parent without primary physical custody should pay and how much spousal support (alimony) one party should pay the other, if it is requested and granted.

Divorce: The main difference between an action for separate maintenance and a divorce is that divorce terminates or ends the marriage while a separate maintenance action does not; at the end of a separate maintenance action, the parties remain married, although living apart. In Nevada, a spouse does not have to prove wrongdoing to obtain a divorce. This no-fault system is intended to help spouses settle matters without unnecessary bitterness or resentment. A person may ask the court to end his or her marriage because it is not working (that is, the parties are incompatible).

Since the majority of time, people will choose to file for divorce rather then annulment or separate maintenance, the remainder of this manual will deal with divorce.

2. If I want to do the case myself, is there anybody who can help me?

Many attorneys in Clark County offer what are called "unbundled services." This means that you may hire the attorney for limited assistance only (such as, to appear with you at a hearing or to review your documents) and he/she agrees to charge you only for that limited service. ). Clark County Legal Services Program, Inc., Nevada Legal Services and the Boyd School of Law together provide free legal information classes on Divorce, Paternity and Custody law. The classes are taught by law students, with a supervising attorney available to answer questions regarding do-it-yourself divorce or custody/paternity/child support cases. For more information, call (702) 386-1070 in order to register or find information on the class schedule for the current semester. If your case qualifies, Clark County Legal Services may be able to represent you directly, or refer your case out to a volunteer attorney, who will take your case and not charge you for his/her time (the Pro Bono Project). Many domestic violence shelters have advocates who understand the basic procedures involved in getting a divorce or paternity/custody/child support case, to get you started.

3. Do I have to have lived in Nevada for a particular amount of time before I can file for divorce?

Yes. You must have lived in Nevada (that is, be physically present in the State with an intent to remain for an indefinite period) for at least six weeks before you may file for Divorce.

4. What is the procedure for getting a divorce? Do I have to have a lawyer?

You do not need to have a lawyer to get a divorce, but a lawyer’s specialized knowledge of Nevada family law, skill and experience can be very helpful to a person considering legal separation or divorce. A lawyer’s advice is especially helpful in cases that are contested (that is, the parties cannot agree upon the division of community property/debts or the custody and support of minor children).

Summons and Complaint: To start a Divorce, you (called the "plaintiff") must file with the court a Summons and Complaint for Divorce.

Service: These documents are then "served" on your abuser (called the "defendant"). Service is a legal concept; a Summons and Complaint are usually served by having copies personally delivered to the defendant. There are also other ways to serve documents if the defendant cannot be personally served, including "substitute service", which is when the documents are left with a "person of suitable age and maturity" who lives in the defendant’s residence, and "service by publication" which is when a notice of the action is published in a newspaper of general circulation. There is no major legal significance as to which spouse files the Complaint, but there may be emotional or procedural advantages.

The purpose of the Summons is to advise the defendant that he or she is being sued and to command the defendant to reply to the Complaint. Basic facts about the marriage are contained in the Complaint, which also specifies what the plaintiff wants in the way of a parenting agreement (custody, support and visitation), division of property and debt and spousal support.

Answer and Counterclaim: Once served with the Summons and Complaint, the defendant has 20 days to reply in writing to the Complaint. This reply, called an "Answer," may include a "Counterclaim." The Counterclaim sets out the defendant’s position on the parenting agreement (custody, support and visitation), division of property and debt and spousal support. The plaintiff has 20 days to file and serve a Reply to the Counterclaim.

Temporary Orders: In many situations, the next step is to ask the judge to make temporary orders to guide the conduct of the parties. Either spouse may ask for and get temporary orders. Typically, the requests cover such subjects as the primary custody of the minor children (that is, specifying which parent the children will live with the majority of the time), visitation with the children for the parent who does not have primary custody, child support, spousal support, occupancy of the family home, payment of bills, and other concerns for protecting people or preserving property.

Joint Preliminary Injunction: To prevent any immediate problems in a divorce, a Joint Preliminary Injunction may be requested by either spouse. This injunction restrains both parties from harassing one another, taking the children out of state, disposing of property, or incurring any unusual debts.

TransParenting Class: When the divorcing couple have minor children, Nevada law requires that both parents must attend a TransParenting Class within 45 days after service of the Answer. This class informs parents about the effects of divorce on children, and encourages them to come to a mutually acceptable agreement on a parenting plan. If the parents cannot agree after attending the class, the court usually will order them to mediation.

Mediation: The parties can choose between mediation using the Family Mediation Center or a private mediator (paid by the party requesting a private mediator). The Family Mediation Center (FMC) is located on the first floor of Family Court. FMC charges a fee for its services; the amount of the fee is determined on a sliding scale, based on household income, and ranges from $50. to $200. Private mediator fees vary considerably. The mediator will try to negotiate a parenting plan that is acceptable to both parties. If successful, the mediator will draft a written parenting plan agreement, for each party to sign.

As a victim of domestic violence, you should ask the judge to order the mediator to use the Domestic Violence protocol. This means that you will not have to be in the same room as your abuser. Rather, each of you will be seated in separate room and the mediator will negotiate with each of you separately. Otherwise, the Family Mediation Center also does its own screening for domestic violence, so that the mediator can be alert to these issues.

You do not have to agree to any parenting plan suggested by the mediator. If you have good reasons for refusing to accept any proposed custody and visitation plan, you are entitled to ask for an evidentiary hearing before the judge on these issues. Even if you agree with the mediator’s suggested plan, you do not have to sign the parenting plan that day: you are entitled to take a copy of the proposed plan home with you, to have it reviewed by an attorney or whoever else you rely on for advice.

Completing the Case: All issues must be settled in order to finish a case. If the parties cannot agree on a permanent plan for custody, support, visitation, or property division, a trial will be held to decide any disputes. If spouses agree on a settlement and no part of the divorce is contested, the case does not have to go to trial. The final stage occurs when the court signs a "Decree of Divorce." Settlements negotiated between spouses are presented in writing for approval by the court and signed by the judge. If the case requires a trial, the judge’s decision is recorded in writing and signed by the judge who conducts the trial. A marriage is not dissolved until the judge signs the Decree of Divorce, you file the Decree with the Clerk of the Court and you file and serve a Notice of Entry of Decree of Divorce.

See the checklist at the end of this Section for more information on getting a divorce in Clark County.

5. When is my divorce effective?

Once the Decree of Divorce is signed by the judge and filed with the Clerk of the Court, the parties are legally divorced and free to re-marry. Nevada does not have a waiting period for a Divorce to become final.

6. Can I get back my maiden name in the divorce?

At your request, your maiden name or a former name can be restored to you in the Divorce Decree. The request to do this should be set out in your Complaint or Counterclaim.

7. How does the court decide child custody and visitation issues?

Nevada law requires that in any proceeding for annulment, legal separation or divorce where minor children are involved, "child custody" and "visitation" for the parent that does not have physical custody of the children must be set forth, in detail, in the Complaint, the Counterclaim (if any) and the Decree of Divorce; "reasonable visitation" is not a sufficient statement of the visitation rights of the non-custodial parent. The parents may agree upon custody and visitation or eachparent may propose opposing plans. The court will make a decision on custody and visitation, based upon the "best interests of the child":

• Allocation of responsibility for parental decision making on material matters on the upbringing of a child (also referred to as "legal custody"), such as religion, healthcare and education;
• A schedule for residential care (who will have actual physical possession and control of the children - "physical custody" of the children); and
• A schedule for visitation for the parent who does not have primary physical custody of the children (the noncustodial parent).

There is a strong preference for giving parents joint legal custody over their children. However, a court may order joint legal custody while awarding primary physical custody to one parent.

Both parents have a legal duty to support their children (that is, provide for the necessary maintenance, health care, education and support for the child and to pay for the funeral expenses in the event of the child’s death). NRS 125B.020. The general formula set by Nevada law (NRS125B.070) for the child support paid by the noncustodial parent is as follows:

• For one child 18% of his/her gross monthly income
• For two children 25% of his/her gross monthly income
• For three children 29% of his/her gross monthly income
• For four children 31% of his/her gross monthly income
• For each additional child an additional 2% of his/her gross monthly income

The minimum amount that may be awarded by a court (absent special circumstances) is $100.00 per month, per child. The maximum amount per month, per child, is set as follows:

At least | Not greater than | Maximum Amount/child

• $0 | $4,167 | $500
• $4,168 | | $6,250 | $550
• $6,251 | $8,333 | $600
• $8,334 | $10,417 | $650
• $10,418 | $12,500 | $700
• $12,501 | $14,583 | $750

If the parent’s gross monthly income is greater then $14,583, the presumptive maximum is $800.

However, the law allows a court to modify the amount of support specified by the guidelines (NRS 125B.080 (9)), to take into account the following circumstances:

• The cost of health insurance for the child;
• The cost of childcare for the child;
• Any special educational needs of the child;
• The age of the child;
• Any responsibility of either parent to support other persons;
• The values of services contributed by either parent;
• Any public assistance paid to support the child;
• Any pregnancy and confinement expenses of the mother;
• Any travel expenses related to the child visiting the parents;
• The amount of time the child spends with each parent;
• The relative income of each parent; and
• Any other necessary expenses of the child.

[Note that this is only a general discussion on the subject of child support. If you are unsure whether you should be entitled to or obligated to pay child support, or you are unsure how the amount of support should be calculated, you should consult an attorney.]

9. The amount I was given as child support is too low – I know my ex is making more money now then he did when we were divorced. What can I do?

Child support orders are subject to periodic modification to meet changes in the needs of the children (every three years), as well as material changes in each parent’s ability to pay. You can bring your own motion to modify child support (the Self-Help Center at Family Court has a form packet that you can purchase for this purpose for $3.00 or you may download the forms free from the internet: www.co.clark.nv.us/district_court/self_help_center/index.htm), or you can ask the Clark County District Attorney to help you (see Section 11 for information on the Clark County District Attorney Family Support Division child support enforcement services).

10. How long does my ex have to keep paying child support?

Child support payments are made until a child is 18 years old, or graduates from high school, whichever occurs last. However, certain circumstances may affect how long child support must be paid. For example, if a child under 18 gets married or otherwise becomes emancipated or self-supporting, the court may terminate the noncustodial parent’s obligation to pay support. Similarly, if a child is over 18 but still in high school, the noncustodial parent will have to pay child support until that child is 19 or graduates from high school, whichever occurs first. In addition, if a child is disabled before his/her 18th birthday, the duty to support the child may continue until the child becomes self-sufficient.

11. What is spousal support?

Spousal support or alimony may be awarded where there is need on the part of one spouse and ability to pay by the other. Spousal support is not awarded or withheld as punishment for marital misconduct. The duration and amount depend upon the facts and circumstances of each case. A court may grant one spouse the right to receive spousal support "as appears just and equitable." Spousal support may be granted for the purpose of allowing a spouse to obtain training or education relating to a job, career or profession. In determining the need for spousal support, and the appropriate duration and amount, the court will consider:

• the financial resources of each party;
• the work experience and earning prospects of each spouse, including the time needed for one spouse to obtain vocational training to become employed or self-supporting;
• the age and physical and emotional conditions of each party;
• the duration of the marriage; and the standard of living established during the marriage.

In addition, in deciding whether to award such support, Nevada law (NRS125.150) allows a court to consider:

• Whether the spouse who pay alimony has obtained greater job skills or education during the marriage, and
• Whether the spouse receiving such alimony provided financial support the other spouse obtained job skills or education.

[Note that this is only a general discussion on the subject of spousal support. If you are unsure whether you should be entitled to or obligated to pay spousal support, you should consult an attorney.]

Community Property is generally defined as any property acquired by a husband or wife after marriage, unless it is separate property. NRS 123.220

Separate Property is generally defined as any property acquired before a marriage, or any property acquired by a husband or wife during the marriage that is the result of a personal inheritance or bequest to either party, a personal gift to either party, or an award for personal injury to either party. In addition, any income or profits (i.e. rent, dividends, interest, etc.) earned by or on the separate property during the marriage is also the separate property of the party who owns it.

[Note that these are only general definitions and there are notable exceptions that may apply in your case (for example, if a spouse’s salary or other community property is used to maintain separate property, the other spouse may acquire a community interest in such separate property). If you have any doubts or concerns about whether an item of property is community property or separate property, you should consult a lawyer.]

13. How does the judge divide community property?

There is no fixed method for determining how property should be divided. In Nevada, all community assets — real and personal, tangible and intangible — are available for distribution. As a community-property state, Nevada laws provide for the "just and equitable" division of property acquired during a marriage; however, this does not necessarily require equal division (although the Court must make specific "findings of fact" that justify the unequal division of property). Under some circumstances, the court may also divide separate property.

If you and your husband are able to agree upon the division of property, the court will probably approve it. Property settlement agreements are binding and generally cannot be modified. If you and he cannot agree, the court will decide how to divide community property.

In making her decision, the judge will not consider any allegations of marital misconduct, including domestic violence. Instead, the court will look at the following:

• the nature and extent of community property;
• the nature and extent of separate property;
• how long the parties were married;
• the financial position of each party;
• whether each spouse is employed and self-supporting;
• each party’s entitlements to social security and profit-sharing plans; and
• special circumstances.

Community Debt is generally defined as any debt or obligation of the husband or wife arising during the marriage, unless it falls within the definition of a separate debt. Even if you are living apart, so long as the debt arises while you are married, it may be considered community debt.

Separate Debt is generally defined as any debt or obligation of the husband or wife arising before the marriage or any debt acquired during the marriage that is used solely for the purpose of maintaining separate property.

[Note that these are only general definitions and there are notable exceptions that may apply in your case. If you have any doubt or concerns about whether a particular debt is community debt or separate debt, you should consult a lawyer.]

15. How does the court divide the community debts?

All community debts must also be divided when dissolving a marriage. Consideration is given to the type of debt and the circumstances under which it arose. The factors that a court considers when dividing property are also applied when dividing community debt.

16. The debts were divided in the divorce decree. Do I have to notify our creditors? What should I do?

Once the community debt has been divided in the Divorce Decree, it is important that creditors are notified that you will not be responsible any longer for debts allocated to your spouse. Most credit and charge account agreements provide for joint liability for any charges made on joint accounts. Therefore, you should instruct all creditors, in writing, to remove your name from a joint account or, alternatively, to close all joint accounts. If you wish to maintain credit with certain creditors, you should open a new, separate account. However, as to community debts that arose before your divorce, the creditor does not have to release you from liability for that debt, regardless of the divorce decree. You should contact the creditor and explain that the debt is

supposed to be paid by your ex-husband, but you may end up paying the debt and then trying to get reimbursement from your former husband. See question 17 for more information.

17. What can I do if he is not complying with the divorce decree?

The Family Court will enforce your Divorce Decree. If your ex-husband fails or refuses to comply with the terms of the Decree he may be held in contempt by the judge and jailed or fined. Orders for the payment of money, including child support orders, may be enforced by mandatory payroll deduction using either a wage assignment or wage garnishment. The Self-Help Center at Family Court has form packets that may assist you in getting before the judge again, to order your ex-husband to comply with the Decree. If you are forced to pay a creditor on a debt that the court assigned to your ex-husband, you can ask the court to order reimbursement by a wage garnishment or wage assignment.

Unless the court finds there is good cause to believe that child support will be voluntarily paid on a timely basis, wage assignment or garnishment will be ordered in the Decree. If your Decree contains a wage garnishment, you should sent a copy of the decree to his employer, along with a "Notice to Employer" letter that directs the employer to begin withholding child support from his paycheck (also send copies of the relevant Nevada statutes authorizing the employer to make the deduction and stating the penalties if the employer fails to withhold). See the Appendix to this Section for more information on using this form.

Even if the original order did not contain a wage assignment, if he is 30 days or more behind in support payments, you can obtain a wage garnishment.

• Get an Affidavit of Arrearage form from the Clerk’s office at Family Court (or you may download the form from the internet: www.co.clark.nv.us/CLERK/family_forms_library.htm.)
• Complete the Affidavit, signing it before a Notary Public (Notaries at the Self-Help Center at Family Court will notarize your signature free of charge).
• Get a Writ of Attachment and Notice of Attachment form from the Clerk’s office at Family Court (or you may download the form from the internet: www.co.clark.nv.us/CLERK/family_forms_library.htm.)
• Complete the Wage Garnishment form, signing it before a Notary Public (Notaries at the Self-Help Center at Family Court will notarize your signature free of charge).
• Take the completed Affidavit and Wage Garnishment forms, along with a copy of your child support order, to the Clerk’s office at Family Court.
• The Clerk will reduce the outstanding arrearages to a judgment and then "issue" the Attachment.
• You must then have the wage attachment form "served" upon his employer (the Clark County Sheriff Civil Process Section, 601 E. Fremont, 2nd floor, Las Vegas, NV, (702) 455-4237, will do this for a fee of approximately $35. Otherwise, a commercial process server will do this for a fee - check the alphabetical listing in your telephone book under "Process Servers.").

You should start receiving payments the next payroll period.

As an alternative, a parent who is not receiving court-ordered support can contact the Clark County District Attorney Family Support Division or a private attorney.

Property settlements and family support arrangements can have serious tax consequences to one or both spouses: if nothing else, your tax-filing status will be affected. This is a complex area that is beyond the scope of this manual and you should consult a CPA or an attorney. Legal or accountant’s fees paid for tax planning and advice in connection with a divorce may be partially deductible on your income tax form – again, consult a CPA or an attorney.

19. I am afraid of doing a divorce entirely on my own. Is there any way I can get help? What should I expect, when hiring a lawyer?

Each party has the right to be represented by an attorney, so if one person elects not to, the other still can. Lawyers set their own fees, so costs and payment arrangements may vary. An important factor in controlling costs is whether or not the parties can agree to a settlement. If matters are contested, the divorce is likely to be more expensive, since many attorneys base their fees on an hourly rate. The amount of time a lawyer must spend on a case will increase with the number of issues in dispute and the complexity of the issues. It is appropriate to discuss fees with a lawyer at the outset of a case. Your lawyer will be willing to explain the charges involved, including retainers and hourly rates, court costs, and payment or credit arrangements.

Nevada allows people to represent themselves in a Divorce action. However, ending a marriage involves serious and complex legal and financial considerations. Along with serving as your advocate and negotiator, a lawyer knows the process to follow and which papers to file. Your attorney can advise you of your legal rights and obligations, can help reach settlement on disputes, and can represent you in enforcing your rights.

Among alternatives to hiring a lawyer to get your divorce are:

• the Eighth District Court Family Division Self-Help Center, that offers instructions and form documents.
• the Family Mediation Center, for affordable mediation of issues relating to custody, visitation and support.
• the Community Legal Education classes on Divorce and Paternity/Custody taught by the Boyd School of Law, Nevada Legal Services and Clark County Legal Services (this class teaches basic procedure and Nevada law on Divorce and Paternity/Custody and assists people in completing the Self-Help Center forms).

In addition, some lawyers offer "unbundled services." This means that the lawyer will help you with only a part of your case (such as reviewing the Complaint for Divorce or proposed parenting agreement, or representing you at an evidentiary hearing). Since the lawyer will charge you only for the limited service being performed, it reduces the amount you will have to pay in legal fees.

Clark County Legal Services also has the Pro Bono Project: this project finds attorneys in Clark County who are willing to donate their time to represent low income people with meritorious cases.

20. Help! I have just been served with a Divorce Complaint. What do I do?

Relax. You have time to respond if you just got served. You should try to talk with a lawyer, and show him/her the Complaint. Read the papers you were served. One is a Complaint, and one is a Summons. The Complaint will tell you what the other side is seeking. Look at the last pages of the Complaint. At the last page of the Complaint will be a signature. If only the plaintiff’s name appears there, it means he/she does not have a lawyer (yet). You should prepare an Answer to the Complaint (you can get instructions and fill-in-the-blank forms for this from the Self-Help Center at Family Court). Look at the Complaint. Each sentence is numbered. In your answer, you will say whether you "admit" (agree), "deny" (disagree), or lack information sufficient to admit or deny, each numbered paragraph of the Complaint.

You can also file a Counterclaim with your Answer (there is an $80.00 fee to file an Answer - there is no additional filing fee to include a Counterclaim with your Answer). If you want a result that is different from what the plaintiff has requested in the Complaint, you must file a Counterclaim.

You can also file Motions for temporary orders for custody, visitation and child support with your Answer.

Proceed to Section 10, Part 2: Divorce >