If you’re reading this article, chances are high that you are looking into divorcing in Nevada. People too often end up with a messy financial life because of a divorce, but it doesn’t have to be that way. With some planning and patience, you can come out of it with your bank account in relatively decent shape.
There are many ways people and lawyers choose to go about the process of divorcing in Nevada. Based on our twenty-five years of experience representing clients in their Nevada divorce, however, the single most-important factor that can most affect your finances during a divorce is how you file a divorce. There are essentially three ways to file:
Employ the services of a mediator (this can be your divorce attorney) to mediate issues of property, debts, and children, then file a joint petition divorce.
Agree on all the terms between yourselves and without a mediator, and file a joint petition divorce.
You disagree on many of the terms and one of you files a one-signature divorce (complaint for divorce).
Number 1 is the best solution to divorce affordably and fairly. It’s a terrific option if you are uncertain about what is fair for your situation, or if you have been in a longer-term marriage and your property and debts are completely linked together (or you live in a community property state like Nevada).
Number 2 is the most economical and least acrimonious way to go about it. This is provided you feel that you can still trust your spouse with this, if not with other things, and you feel you are getting a fair settlement based on your own research. Some couples with few financial assets opt for this solution.
Divorce is never free, and you must share your current assets between the two of you, so your net worth will decrease, of course, but either of the above solutions will leave your wallet relatively intact.
Number 3 is the kind of divorce that can shatter your finances. If it goes as far as a divorce trial, it becomes the kind of divorce that makes some lawyers richer than their clients will ever be again. In a few cases, this type of divorce is necessary when there are millions or billions at stake, but otherwise, no. If your combined net worth is $500,000 and under, it is pure folly to engage in this type of divorce unless the other side is being highly unreasonable.
Going for Numbers 1 or 2 will leave a ton more money in your wallet. Because of this, mediation is our Step #1 to shelter your finances from as much damage as possible during and after a Nevada divorce.
Here are seven things we recommend you look at seriously when divorcing in Nevada.
Select a divorce lawyer willing to mediate.
Mediated divorces are also known as collaborative divorces. If you are divorcing in Nevada, find a divorce attorney who is willing, first and foremost, to attempt to mediate your case with your spouse’s divorce lawyer. It’s best to make sure that this attorney is a certified mediator. Divorce attorneys are offered continuing education classes in mediation. Some are also certified court arbitrators which gives them even more settlement experience. Going to court instead of mediating is costly and acrimonious.
Of course, if you are dealing with a highly volatile and unreasonable Defendant (your spouse), you might end up having to go to court anyway, but it’s best to start with mediation. Things might be different in other states, but in Nevada, when one party files for a divorce and the other party responds by filing an Answer and Counterclaim, the court automatically sets a date for a Case Management Conference. Guess what that is? It’s essentially a mandatory mediation. The attorneys’ jobs at that point is to try and get their clients to settle rather than having to go to trial.
Order your credit report.
Before you get into any sort of negotiations with your spouse, it’s best to check your, and your spouse’s, credit, so you know what obligations are on there. Especially in a community property state like Nevada, spouses are responsible for debts incurred by either of them during the duration of the marriage. You want to know if your spouse took out a loan recently for instance. You don’t want to end up having a collection agency after you once the divorce is over because your spouse is not paying on the loan. If you were married at the time the loan was obtained, they can come after you for payment if your spouse defaults. Yes, we know how you feel about this. So, when divorcing in Nevada, avoid it by pulling your credit report.
Make a list of your assets and liabilities.
Do you know what you own and how much you owe? Make a list right now
Download all your bank statements for the past year
Download your latest credit card statements
Download any brokerage accounts statements
Download your latest retirement account statements
Get the latest mortgage statements on all real estate you own, together or separately
Make a list of any valuable assets you have around the house, like jewelry, art collections, silver, high-worth china sets, classic cars, baseball card collections, anything of high value.
Discuss tax consequences of any settlement with your tax accountant.
In some cases, you might be better off taking a lesser, or different, settlement if your income taxes will be affected negatively. For instance, sometimes a couple will agree on less child support (in cases where the paying party can pay more than the statutory requirement) with the lesser amount balanced by more alimony. This might be a smart move on the part of the one paying alimony, which is tax deductible, however, the one receiving the alimony will have to pay taxes on it, so it’s not very beneficial to him or her. Since child support is not taxed, but alimony is taxed as income, it’s not a wise move.
Be sure to discuss any proposed alimony scheme when you are divorcing in Nevada with your divorce lawyer and your accountant. If you decide to pay more alimony at the outset in lieu of property division and you deduct it from your income taxes, it could come back to bite you later. Agreeing to a larger alimony amount for the first few years after the divorce in lieu of property division is a big no-no with the IRS. They have become wise to that, and they might audit you if you reduce the amount of alimony you pay by several thousands after the first couple of years.
Be sure to protect future child support and alimony
Though it’s not likely in most cases, the unexpected death of the spouse paying alimony and child support is possible. Therefore, it’s wise to have a life insurance policy in place with the spouse receiving these benefits as the beneficiary. It’s also a good idea to insist on a disability insurance policy in the event that again, the payer of alimony and child support becomes unable to work.
Update your estate documents and other accounts’ beneficiaries
When divorcing in Nevada, be sure to check to see who you have listed as “pay upon death” beneficiaries on all your bank accounts, as well as who you have listed as beneficiaries of your retirement accounts. If you have a will or a living trust, be sure to update those as well. If you don’t have a living trust, this is a really good time to set one up so that all of what is now your separate assets is distributed the way you want them to be.
Do you have significant assets?
If so, it is best to retain a divorce lawyer and even an accountant to discuss these issues, rather than trying to go the Do It Yourself route. If you fear that your soon-to-be ex might prove unreasonable when dealing with you one-on-one about these issues when divorcing in Nevada, ask for divorce mediation. This allows you to discuss all pertinent information with qualified professionals who know how to keep tempers down during what can often be touchy subjects.
There are many rumors about eligibility and about how to file a divorce in Nevada. I hope to dispel at least some of them here by addressing the most important points.
1. Nevada residency.
To be able to file a divorce in Nevada, one of the parties to the divorce must have resided in Nevada for a minimum of six weeks before filing, and have the intent to remain in Nevada. (Nevada Statutes – Chapter 125 – Sections: 020). The divorce documents will state this:
That Plaintiff (or Joint Petitioner if both parties sign the divorce papers before the case is filed) is a resident of the State of Nevada, and for a period of more than six weeks immediately preceding the commencement of this action, has resided and been physically present in the State of Nevada, and now resides and is domiciled therein, and during all of said period of time, Plaintiff has had, and still has the intent to make the State of Nevada her home, residence and domicile for an indefinite period of time
2. Nevada residency for children
If you have children with the spouse you are divorcing, the children must have resided in Nevada for a minimum of six months before the court will take jurisdiction over physical custody and visitation. If the children have not resided in Nevada for six months at the time of the filing of the divorce, and you and your spouse still want to go ahead and file right now, you can enter into a separate legal Parenting Agreement which can be filed at the same time as the divorce. This type of agreement is enforceable in any court with competent jurisdiction, as well as enforceable in here in Nevada after the children have resided in Nevada for six months.
It’s better if you know whether your spouse agrees to sign the divorce documents before you file or not. It’s less expensive to file a divorce when you both agree on everything and both sign before the divorce is filed. If you’re ready to do that, you canget started here.
If your spouse won’t sign the divorce documents, the only route to go is filing a complaint for divorce (one-signature divorce), which costs more and takes longer to be granted. If you feel that this is the best way to go for you, you can get details here.
3. What property will each of you keep?
In a divorce, anything of value you have purchased together is considered property, such as cars, furniture, art collections, jewelry, tools, sports equipment, etc. Nevada is a community property state, so, aside from some exceptions (see below) most property is owned by both husband and wife, regardless of whose name it is recorded under.
Exceptions to the above:
Inherited property—your parents left you a sum of money in their will and you have not co-mingled it with community funds, for example, deposited it into a joint account with your spouse, or used the inherited money to make house payments on a house you own with your spouse.
If you bought a house before the marriage, and have not used community funds to make payments on it or to make improvements (for example, your salary or your spouse’s salary), then the whole house belongs to you. If you did use community funds to make payments on it or to make improvements, then you would have to share in the equity increase from the time of the date of your marriage. You would keep all equity from before the marriage as well as your down payment.
4. What debts will each of you keep?
Like property, when you file a divorce in Nevada, you share the debt you have both accumulated since the date of the marriage, no matter whose name the debt was incurred under.
5. Who will have physical custody? If you have children together, decide whether the children will share their time between both of you, or if they will live with only one of you and visit with the other parent.
At the time of this writing, courts in Clark County, Nevada, favor joint custody unless one of the parents lives at too far of a distance from the children’s schools to make it feasible to transport them there several days per week. One arrangement that works well in such situations is for the parent who lives far away from the school to pick up the children after school on Fridays and drop them back off there on Monday. This is still considered joint physical custody because the parent who has the children on the weekend is spending pretty much equal time with them as the parent who has them from after school on Monday until beginning of school on Friday since the weekend parent is with them all day Saturday and Sunday, as well as rest of the day Friday.
If you think you will have difficulty making the above decisions with your spouse, consider divorce mediation for your divorce in Nevada; many hard decisions can be made easier with a mediator than when made on your own.
When a Complaint for Divorce is filed in Family Court in Nevada and the other party responds by filing an Answer and Counterclaim, the first thing Family Court does is set a mandatory Case Management Conference (CMC). This sets the case on either a litigation track, meaning a trial date will be set, or final resolution during the Case Management Conference itself. Both parties are expected to attend.
How judges handle a Case Management Conference
Not every family court judge handles the Case Management Conference the same way. Just know that items #1 through #4 on the list below are things that usually do happen, and that items #5 through #8 are things that might or might not happen.
Things likely to happen during the conference:
Item #1: By the time of the case management conference the Judge expects that Plaintiff and Defendant will have filed financial disclosure forms on the Court’s form indicating that their respective income, expenses, assets and debts are. This give the Judge a financial picture of the parties which will help the Judge administer the case.
Each side has to attach 3 pay stubs or income statement to the FDF. So this is item number 1 and the Judge could sanction you if you do not have this document completed and filed at the time of the hearing.
Item #2: Applies only to parties with minor children:
If you have children the Judge is required to send you to mandatory mediation in order to try to formulate a parenting plan with the help of one of the Court’s counselors, therapists or mediators. The Judge will then set a date about 1-2 months from then for you to come back court to ask if either a partial or full parenting plan has been agreed upon between you and your spouse.
NOTE: To speed up your case, you can submit a request for mediation right after an Answer and Counterclaim is filed. This way, perhaps you can have your return from mediation hearing at the same time as your case management conference.
Item # 3: Next comes setting the case down for either trial or a status check. One main reason for the CMC is to move the case along as the Judges want to be able to conclude the case within a year after it has been filed. Therefore, the Judge will want to know how long the parties need for Discovery and when can they, or their lawyers, will be ready for trial.
Item #4: There is a mandatory initial disclosure of witnesses and exchange of documents between the Plaintiff and Defendant. While it is possible that both parties have the same copies of documents, e.g., income tax returns, bank statements, credit card bills, title to cars, 401(k) statements, etc., the Court nevertheless wants an exchange of documents which might be used at trial. The rule is that if you don’t disclose the document up front, you cannot use it later at a hearing.
Also, the names, numbers, addresses, and expected testimony of witnesses must be disclosed. You obviously list your spouse, but also be sure to add teachers, accountants, friends, coaches, and any other individual you might want to later call as a witness. If you don’t list someone, you cannot later call him or her as a witness.
Things that may or may not occur during a case management conference:
Item #5: Some Judges will, even if no motion has been filed by either party, make temporary orders during the Case Management Conference.
These include orders for temporary custody, visitation, child support, alimony, exclusive possession of the home or car, etc. Be prepared to address these issues.
Item #6: Another discretionary item the judge might address is misbehavior of the parties during the period of time leading up to the case management conference. Whether there has been a violation of the joint preliminary injunction, interference with visitation, refusal to pay bills, overspending, threats or abuse, etc. The judge might address the issues and admonish the parties or provide them with guidance.
Item #7: A third discretionary item judges may address at the Case Management Conference is whether to send the parties to a settlement judge or financial mediator to work out the division of debts and liabilities before the Judge actually sets the case for trial.
The judge might also make referrals to outsourcers, e.g., counselors, psychologists, private mediators, etc. This can be a good thing if it helps in the case, but if it does not, it could delay your eventual trial date.
Item #8: Finally, the case management conference is used by some judges to try to settle as many issues as possible right then and there. The Judge will sometimes either resolve the entire case during the CMC, or just set the matter down for a hearing on one or two issues, like the amount of support, or the division of the personal property.
After the Case Management Conference, the Court will prepare an Order setting forth what was discussed and any dates for future hearings including the divorce trial, if applicable.
Feel free to contact us with any questions regarding obtaining a divorce in Nevada. Or call 702-420-7052
You are about to get started with a divorce and wonder. How are community property and debts divided in a Nevada divorce?
Because Nevada is a community property state, the name under which the asset is held is not determinative of who has an interest in that asset. What is important iswhether that asset was purchased during marriage and what source of funds were used to purchase that asset.
And of course, if you have a pre-nuptial, or post-nuptial agreement that addresses all of this, then what we say here does not pertain to you. Your pre or post-nuptial agreement would prevail. This article assumes that you live in Nevada and do not have a pre-nuptial, or post-nuptial, agreement.
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 the equity would be distributed to you and your spouse, however, your down payment would be returned to you.
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 decide to 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.
The same goes with any other property purchased after the marriage, such as a car or fine art, or jewelry. This is true even if the property was put in only one of the parties’ name.
Let’s go back to John and Mary.
A year after they married, the couple decides to buy 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 at the time, Mary having been out of town.
When they divorced, John gave Mary $10,000 to compensate her for her share of the car which could have been sold for $20,000 at the time of the divorce.
It didn’t matter that the car was only in John’s name.
Earnings reaped by either party during the marriage are community property in Nevada. If one of you makes considerably more money than the other party and money has been put away in that party’s sole bank account, the spouse would still be entitled to half of those savings, in most cases.
If you keep ownership of real, or other, propertyand bank accountsseparate 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.
The only property that never comes under Nevada community property is inherited property. For example, John’s mother passed away two years into the marriage and left him a house owned by her free and clear, of a value of $200,000. No community assets were ever used for upkeep as John’s mother also left him some money for that purpose. John has never comingled those funds. That house belongs to John only and Mary has no rights to it whatsoever.
The parties share any debt entered into during the course of the marriage, no matter whose name the debt was entered into.
We find that commingling of funds, mixing separate property with community property, transmutation such as say, John paying to fix the house his mother gave him with funds in a joint account, and creating joint accounts with your spouse, are the usual ways separate property becomes community property.
Regarding transmutation, there is a presumption that when you donate separate property to community property that it is a gift.
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.
If you have questions about how to divide your property in your divorce, read more here
When you get a divorce in Nevada, a community property state, you generally divide all property and debts down the middle. This means everything you own and everything you owe, either together or even separately, gets divided pretty much down the middle, unless there is a good reason as to why it shouldn’t be, and unless the property in question falls under an exemption. Below are five things you should do with your finances during a divorce.
1. Know what property belongs to the community assets and which is exempted
For instance, if you inherited a sum of money, no matter its size, that’s yours alone.
Other things to consider, regarding your finances during a divorce are as follows:
If you bought the house in which you and your spouse resided before the marriage, and you never co-mingled funds to pay the mortgage, or to pay for its upkeep, the house is yours alone. If you already owned it, but you used your current salary to make mortgage payments, or your spouse helped make the mortgage payments after the marriage or paid for upkeep and updates, then your spouse is entitled of one half of the equity increase that has occurred since the marriage, minus the down payment you made at the time of the purchase.
We once had a divorce case where Husband had added Wife to a savings account he had with his parents. The judge said that the funds in that account were now a community asset and he ordered that Wife be given one-fourth of the monies in that account even though she had never contributed to it.
Also, if you use separate property funds to pay community marital debt, it is presumed to be a gift from your separate assets to the community assets.
If your Uncle John gave you a $50,000 (or any gifted amount), for any reason whatsoever, it’s yours alone, as long as you don’t deposit it into a joint account. Then, it becomes part of the community assets.
2. Pay down your community debt before you file, or at least before the divorce is granted
It’s always best to pay off as much of your debt as possible before the divorce is granted. The fewer joint debts you have, the easier it will be to negotiate and divide them, not to mention being able to put them out of your mind completely. Because even if your ex-spouse is responsible for a joint credit account as part of the divorce settlement, you’re still liable for that debt if your ex-spouse doesn’t pay.
Third parties (such as creditors) are not bound by the rulings of a family court. Most creditors will honor what it says in the final decree of divorce, but only as long as the payments are being made. So if the judge says that Mary must make payments on the car she’s driving, but John is also on the loan, if Mary doesn’t pay, the credit company is likely to come after John to make the payments. Should this happen, the only recourse for John is to go to Family Court to try and resolve the issue. A family court judge is likely to hold Mary in contempt of court if she doesn’t make the payments ordered in the decree of divorce.
3. Credit reports
The best thing to do here is to obtain your credit report, and that of your spouse, from all three credit agencies and scrutinize them for all monies owed by you and your spouse. Unless an account was just opened very recently, all credit accounts are bound to appear on there. If you suspect your spouse might have recently opened new accounts without discussing it with you, get updated credit reports about a month later. You want to be certain that there are no surprises after the divorce.
A man we know vaguely (we didn’t represent him, or we would have told him how to care for his finances during a divorce) discovered after the divorce that his wife had purchased a 72” television and put on the electronics store’s credit card he had opened with her. Bottom line here, is that unfortunately, he was just as liable for that debt as she was; it turned out that she paid the debt, but it could just as easily have gone the other way.
To be sure you know all that’s going on with your credit during this time, consider credit monitoring. Some banks offer this service for free if you have a credit card with them, so start there. Having your credit monitored means that you are less likely to find new debts you knew nothing about after the divorce is finalized.
4. Freeze or close joint credit accounts
To take things one step further with your finances during a divorce, and assure that nothing can be added to your joint accounts, consider simply closing or freezing all joint credit accounts. As you know, you should immediately close all joint bank accounts.
Freeze your accounts by calling all credit card companies and telling them about the divorce and asking for them to no longer allow new charges on the account. Note that this will mean that you also won’t be able to charge anything on those cards.
Your attorney is likely to file an injunction to prohibit your spouse from taking large sums of money from your accounts and to prohibit him or her to in any way encumber the community estate with debt, but it’s easier to freeze and close as many accounts as possible, as it will take you more time and energy to try and recoup what is spent if your spouse doesn’t abide by the injunction
5. Be sure to complete all financial tasks as soon as possible after the divorce is granted
Taking care of finances during a divorce doesn’t end when you get your final decree. There are still often tasks left to perform to protect yourself and your credit standing. If you are keeping the marital home as part of the divorce settlement, be sure to file the quitclaim deed as soon as possible. What you don’t want is for your spouse to still appear to own the house and use it as collateral for any type of loan. Same with any other property, such as cars and bank accounts.
And if your spouse is the one to keep the house, and is supposed to refinance it in her name only, follow through until you see proof that it’s been done. You are still responsible for that mortgage until it’s paid off.
Lastly, when it comes to finances during a divorce, many people neglect to review their living trust and will. Your priorities there are sure to have changed based on the divorce, so don’t neglect this very important task.
If you have more questions about this, or you want to get a divorce started, you can find us at http://nevadadivorce.org
I understand your dilemma when looking for a divorce attorney in Las Vegas. There are a ton of them. Which one should you choose? Most people only go through a divorce but once or twice in their lives, and have little experience when it comes to dealing with it.
The one thing you want to avoid is hiring the wrong attorney and have to switch as this increases the overall cost of your divorce.
I aim to give you good general advice and not just get you to choose me as your divorce attorney. These are guidelines you can follow with any attorney you consider retaining for your divorce.
First know what kind of divorce you are getting into.
Does your spouse agree to a divorce? Does he or she agree to sign the divorce documents? The answer to this question is important and it will affect what type of attorney you should look for to represent you in your divorce.
If you already know that your spouse agrees to sign the divorce papers, you’ll need one kind of divorce attorney, and if your spouse refuses to be reasonable and plans to fight you every step of the way, you’ll need another.
What kind of divorce attorney do you need?
Of course, you need a divorce attorney whether your spouse signs or not, but they come in different flavors too. To determine which type of lawyer is best for you, you need to first know the answer to the question posed above; will your spouse contest the divorce or not?
If your spouse is reasonable and you both agree on all the terms of a divorce on your own, you can file a joint petition divorce. You can bring all your terms to your attorney and he or she will include them in the divorce pleadings.
That said, if you have been married for a number of years and own property together, have children together, and pensions are involved, and even if you think you agree on all the terms, it would be a good idea to go through mediation just to be sure that you are treated fairly. There are guidelines a divorce mediator can follow to ensure that you are both getting what is fair for your particular situation, finances, and length of marriage.
If your spouse won’t sign the documents, and will contest the divorce once filed, you’ll need a much more aggressive attorney than if your spouse agrees to terms you set together or through divorce mediation.
If your spouse is intent on fighting everything to the end, your best option is to find a divorce attorney who specializes in litigation.
Before you retain your divorce attorney in Las Vegas, be sure that he or she is open to alternatives, rather than choosing a divorce lawyer whose typical strategy is to plan on going to court from the very beginning of the procedure.
Whether children and finances are involved or not, it’s always best to try mediation first before you enter litigation, either through an attorney who offers collaborative divorce as a part of his or her divorce practice, or through a certified and licensed non-attorney divorce mediator.
Find at least three attorneys
This would be a good strategy to follow:
Ask for referrals from friends and acquaintances who got divorced before you
Look at online reviews
Keep looking until you find three attorneys you think you will like
Interview the three attorneys.
Many divorce attorneys in Las Vegas will give an initial consultation at no cost for divorces that are bound to be contested. I do.
If your case is very simple and uncontested, you can simply talk to the attorney or his staff on the phone. In such a case, you just need information on divorce procedure rather than legal advice.
If your case is to be contested, it’s probably best to meet all three potential attorneys in person. You want to see for yourself how these divorce attorneys look and what demeanor they have. This person might end up standing up for you in divorce court. You want to be sure that he or she is a proper reflection of you.
Ask the following questions:
What is your experience with (contested or uncontested) divorce?
Do you specialize in any particular type of divorce (litigated, collaborative, uncontested)?
Do you favor collaborative divorces over litigation whenever possible?
Do you offer flat fees for uncontested divorce matters?
What is your fee if my divorce becomes contested? Typically, a divorce attorney in Las Vegas charges an hourly fee. Usually, a retainer fee is paid and the hourly fee is charged against it. The attorney is bound to deposit any retainer into a trust account and will then take portions of the retainer out as they are earned.
How long have you been practicing divorce law in Las Vegas?
How often go you go to family court here?
How familiar are you with the judges currently sitting on the bench?
Make your choice.
After interviewing all the lawyers, retain the divorce attorney with whom you feel most comfortable.
Be sure that he or she is highly-experienced divorce attorney in Las Vegas, in other words, he or she is a local attorney, not a lawyer who, say, just moved to Las Vegas from Reno.
Be sure that he or she regards divorce in the same way you do. For instance, if you favor a joint petition divorce, meaning you want to come to an agreement on all the terms of the divorce and you want both you and your spouse to sign the divorce papers before filing, choose an attorney who will do his or her best to promote mediation if you hit a road block, rather than immediately pushing for court.
Of course, if your intent is to go to court to fight for everything you want and you have no intention to compromise, then choose a strong litigator with a good track record for winning tough divorces.
Be sure you know all the fees you will be charged up front and what it could cost down the road.
If you follow this guidance, you should end up with a professional and highly-experienced divorce attorney in Las Vegas, one who cares as much as you do about the outcome of your divorce.
Divorce clients who come to us in December often seem a bit more distressed than they are the rest of the year. We get it. A divorce scores 73 on a 1-100 stress scale with 100 being the most stressful event in a lifetime. Add to this the holidays and expectations to give more, love more, and forgive more. They feel confused and wonder how to find it within themselves to do that in the face of a divorce during the holidays. If children are involved, this time period becomes even more difficult and emotional to navigate.
1. If you’re in the middle of a divorce during the holidays, you need a plan.
The first thing you can do is to remember that our emotional state is attached to familiar actions and surroundings. Therefore, the first thing you should do to make the holidays easier and even enjoyable for you and your children is to change those actions and change those surroundings.
If possible, take yourself out of your usual holiday surroundings.Visit out-of-state family, for instance. If this is not possible…
2. How about starting a new tradition? Do this on your own or with your children if you have them. It’s probably best for your emotional well-being to not continue with the traditions you followed with your spouse. Having your very own traditions will keep you focused on the positive and new rather than distressing over going through a divorce during the holidays. For the kids, it could be fun and distract them from what’s now different, namely, that, possibly for the first time in their lives, they are only with one parent at a time for this year’s holiday.
Justin had always wanted to take his children ice-skating around the holidays, but his soon-to-be ex-wife didn’t like it at all, so they never went. He decided to now make it a holiday tradition to spend an afternoon at the ice skating rink with the kids and then take them out for hot chocolate after. It turned out to be a hit with them. It also gave everyone hope that the holidays could still be a happy time for them despite the divorce.
3. Are you single? Or are your children scheduled to be with your ex during this holiday season? Plan ahead to do something to help others when going through a divorce during the holidays. It’s a well-known fact that helping others lifts our own spirits. Volunteering your time to a shelter, for instance, would take your mind off your own suffering and warm your heart as you help others even less fortunate than you. Or find other single parents whose children will be with their other parent that day and celebrate together, doing something none of you usually does on that day.
Karin reached out to two other friends whose children were going to be with their other parent for the last day of Hanukkah. She arranged ahead of time for them to visit residents of a nursing home who didn’t get visitors or whose families were out of state. They bought several low-cost gifts and wrapped them brightly and delivered them to these residents with good wishes, bringing tears of joy to the eyes of some. This made the women feel very happy inside and thankful for the happiness they still had in their own lives. They followed this up with a special dinner at a restaurant none of them had ever been to before. They vowed to do it again the next time their children were with their other parent for a holiday.
4. No matter what, make sure that your children feel loved by both parents during this time. Make sure they don’t feel pulled between you and made to feel guilty for being with one or the other parent on any given special day. If you are still working out the holiday visitation schedule, be sure that the children have ample time with each parent and vary it up, from year to year if the children have to travel some distance between you and your soon-to-be ex-spouse.
If a certain holiday is very important to both you and your spouse, make it so that you both get the children for a portion of it, but be sure and do it in a way that is enjoyable for the children too. If you live far apart, it would most likely be best to agree to an alternate-year holiday visitation schedule.
Robert and Diane, who live 500 miles apart, agreed that their two children should spend all of the holidays with one another at least until their late teens, and made it so that the children spent the Christmas holiday with Diane during odd years and with Robert during even years.
Having to fly or take a bus to get from one parent to another on an actual holiday to meet a visitation schedule would most likely make your child dread that holiday rather than look forward to it.
5. Lastly, but most importantly, do NOT become a recluse if you are going through a divorce during the holidays. Even if you’d rather pull a double shift at work, or stick your hand in fire, force yourself to go out and mingle with good friends or family (stay away from those who constantly bring up negative things about your ex or ask them to stop). Your spirits will lift from your new activities! We are social creatures and even when feeling low, we derive happiness and comfort from being around others.
Happy holidays to all!
P.S. If you haven’t retained an attorney yet and want a more affordable solution, visit our divorce website, NevadaDivorce.org
In Nevada, if you wish to dissolve a marriage, there are two options for you:
File a divorce. This is the cleanest option, the one that permanently dissolves the marriage.
Legal separation. If you object to divorce on moral or other grounds, or rely on your spouse for health insurance, your option is to remain married, but legally separate your assets, as well as address child support and visitation through an action for separate maintenance, as it is formally referred to in Nevada, but commonly known as a legal separation.
If you wish to protect yourself from the financial obligations entered into by your spouse after a separation, and you either object to divorce, or you want to take some time before filing one, or one of you must remain on the other’s health insurance, a legal separation is your best option.
If a divorce is filed later, the terms of your legal separation can be incorporated into the Decree of Divorce, or you can make new terms.
Essentially, a legal separation addresses all issues normally addressed in a divorce. The only thing it doesn’t do is permanently dissolve the marriage. In other words, all of your property is divided and all issues regarding any children you might have with your spouse are addressed, but you are still married. Neither of you can marry anyone else.
Issues commonly addressed in a legal separation:
Possession of community property and debt.
Division of community property and debt.
How future income will be handled.
How future property bought by either party after the separation will be handled.
How future debt entered into by either party after the separation will be handled.
Disclosure and modification provisions.
Relationship to divorce decree and reconciliation.
How the parties will file taxes and who will be responsible for payment of taxes.
Who will be responsible for the attorney fees.
How your estate will be managed.
Before filing a divorce, which dissolves the marriage completely, especially when you have minor children, it is often 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 look at legal separation instead of divorce:
Are you an older couple where medical insurance and spousal benefits are important?
Do you have younger children together and wish to cause them minimal trauma? It might be less difficult for them to hear “mommy and daddy are getting separated” instead of “mommy and daddy are getting divorced.”
Are you uncertain about forever dissolving your marriage? A trial separation could give you better insight into whether you wish to permanently dissolve your marriage through a divorce.
Are you in a long-term marriage? Have you considered the cost and consequences of unwinding the community property? Is it worth the attorney fees, appraisal costs, and expert fees?
Oftentimes, a separate maintenance has a clause that indicates that in the event the parties divorce after the legal separation has been granted, the obligations, duties, rights and responsibilities contained in the decree of separate maintenance (legal separation) will be incorporated by reference into the decree of divorce. It’s wise to do this since not having this clause in your legal separation could add to the cost of your divorce (if you ultimately decide to take this route) where all the issues would have to be re-entered in the final decree of divorce, instead of the decree of separate maintenance being incorporated into the divorce.
You are free to include any provisions in your legal separation 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 legal separation cannot agree to lump sum child support because the Supreme Court has ruled against it.
If you and your spouse reconcile after a legal separation filing and after the decree has been granted, the decree of legal separation will be terminated. If you separate again, you will have to file a new legal separation, unless the first decree contained a provision that the first decree of legal separation will continue in full force if you reconcile then separate again.
My wife says she won’t’ give me a divorce in Nevada. Do I have to stay married to her?
No, you do not. Despite the fact that this hasn’t been true for a number of years, especially in Nevada where no-fault divorce has existed for a number of years, we still hear the question often. This misconception used to be true (hence, how it became one), back when a specific reason and strong proof had to be given to obtain a divorce in Nevada, but it’s no longer the case.
Your spouse can make getting a divorce more difficult, prolonging the process, in a number of ways (avoiding service, sending you on wild goose chases for documents and old bank account statements, etc. filing motions that are essentially harassment, etc.), but no Nevada judge is going to force you to stay married to him or her.
I get to keep my house if I divorce in Nevada because I bought it before my marriage. Correct?
Maybe. Maybe not. Nevada is a community property state, which means that anything owned in either spouse’s name alone still belongs with the community property assets, with some exceptions.
For instance, if you owned the house before the marriage and used only your separate funds, earned before the marriage, to make mortgage payments and to handle the upkeep on the property and to make improvements, then yes, the house will go to you in a divorce.
If any community funds were used to cover upkeep or to make improvements, the house moves into the realm of community property. It makes no difference if the mortgage or deed is held in the name of one spouse only.
If you did use community funds for the afore-mentioned house expenses, your spouse would be entitled to half of the increase in value of the property since the time of your marriage. You would retain whatever down payment you made on the house before the equity is split.
Community funds in the context of this answer are funds from a joint bank account, and any funds earned during the marriage by either you or your spouse even if they are in an account you do not share with your spouse.
My spouse cheated on me. I’m going to get all of our property, correct?
Not correct. Because Nevada is a no-fault state on divorce, it doesn’t matter at all who cheated and who didn’t; it’s not even looked at by the court when it comes time to divide marital assets.
Yes, we understand you feel it’s unfair. We feel for you. Nevertheless, it’s still a fact around which there is no getting around. Even if your spouse cheated, he or she will receive his or her equitable share of the marital assets.
You can always try to mediate this if you feel very strongly that you should get more of the assets than your spouse (mediation is a far superior way to handle property division in a divorce, whether or not cheating or any other wrong-doing took place), but if a Nevada judge gets to make the decision, the assets will be divided fairly between the two of you.
I’ve been a stay-at-home mom throughout the marriage so I will get full physical custody of our children.
This is a very common misconception. Again, because it used to be true.
You could possibly get full custody of your children; however, Nevada family courts favor shared physical custody and are likely to grant each parent equal time with the children, unless the children are at risk of coming to harm in the presence of their other parent.
Of course, if your spouse agrees that the children will live with you full-time, and will visit him or her on the weekends, the court will not object. But, the court is not likely to grant you full physical custody of your children if you ask for it and your spouse is not willing to give it voluntarily. Unless, again, there is a good reason as to why the children are not safe with their other parent (drugs, alcohol, mental illness, abuse of any kind, etc.)
Custody of the minor children: some people confuse physical and legal custody when they divorce in Nevada.
Legal custody is the right of a parent to see a child’s medical and school records and to have a say about the child’s education and religious upbringing. No more, no less. A parent can have legal custody without having any physical custody at all.
Physical custody determines which parent the child lives with, or states that a child lives with both parents, sharing about equal time between them. Typically, a parent who has either full or shared custody also has legal custody.
There is also Sole custody, meaning that a parent has both legal and full physical custody, with the other parent having essentially no say in a child’s upbringing.
In all of the above scenarios, visitation can still take place. In other words, a parent with no legal or physical custody rights could still be granted visitation.
Finally, be careful before you ask for full physical custody unless you have a strong provable reason that your child would be endangered by their other parent. Family court in Nevada highly favors shared physical custody and is likely to see you as a trouble maker if you push for full physical custody without a really good reason.
If we have shared custody, neither of us pays child support, correct?
This is also a very common misconception. One party will typically still pay some child support to the other party even with shared custody. The court follows the formula below – you can read about this in more detail on our divorce with children page.
Easy formula to figure out your child support obligation:
Take the percentage of each party’s gross salaryaccording to the number of children:
Statutory Percentages (NRS 125B.070 (1)(B):
One (1) child: 18%
Two (2) children: 25%
Three (3) children: 29%
Four (4) children: 31%
Five (5) or more children: 2% more over amount for four (4) children for each additional child.
Subtract the smaller amount from the larger amount
3. The party with the higher income pays the difference to the other party
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.
I didn’t work during our marriage. I will get alimony for the rest of my life if I divorce in Nevada. Correct?
This used to be true, especially for long-term marriages where the wife stayed at home raising the children and had not worked at all during the marriage.
It’s no longer the case.
Courts are a lot less likely to grant life-long alimony to a spouse, unless it was a very long marriage, the other spouse never worked and is incapable of earning due to physical or mental disability.
Otherwise, a judge might grant temporary alimony while the spouse that stayed at home retrains in a new career, or revives an old career.
Nevada law on alimony (NRS 125.150 states the following regarding the circumstances under which a judge might grant alimony in a divorce:
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
I heard I can get a divorce in Nevada in just one day.
Not anymore. We do wish this misconception about divorce in Nevada would go away. We still get the question nearly every day despite the fact that this hasn’t been true for at least 10 years.
Back in the 50’s when it was popular to get a divorce in Nevada because of the short residency requirement, yes, you could often get a divorce in Nevada in a day (after establishing residency). And even just 15 years ago, you could get it done in just a few days. What happened is that between the now much larger population of Nevada, and the many people who move here and establish residency to get a divorce, family courts in Nevada have become overwhelmed.
How long a divorce in Nevada takes depends in large part on how busy the court is at the time your divorce is filed. It also depends on how busy your divorce judge happens to be at the time he or she is assigned your case.
Our office does get final decrees back from the court in just two or three days occasionally, but the norm is more like 7 to 10 days and even up to three weeks sometimes.
All of the above timeline is based on ajoint petition divorce (you both signed the divorce documents before filing the case). If you file a complaint for divorce, it will take 12-16 weeks or so if your spouse can be personally served and up to 26 weeks if publication has to take place.
The best thing to do to dispel misconceptions about divorce in Nevada is to talk to your attorney about any concerns you have regarding any aspect of your divorce. Don’t assume and don’t just accept for granted what your friend who went through a divorce three years ago tells you. That person is not in the trenches every day dealing with divorce court and they don’t know the law like your lawyer knows it.
Divorce with children always make the process more painful, and often more difficult. Too often, parents will put their children in the middle, sometimes without even realizing that they have done so, or without thinking of the consequences to the children. This then makes the divorce not only painful for the adults involved, but excruciating for the children, not to mention the long-term psychological damage they can suffer from having been forced to act as referees between their parents.
Do not use them to deliver messages to you ex. Asking your children to say to your ex, for example, “tell your father (or mother) to not bring his girlfriend (or boyfriend) to your birthday party” puts them in an awkward position. They might have a relationship with that boyfriend or girlfriend and will feel confused and guilty about having to relay such a request.
Don’t tell your child to ask his other parent for the money needed for a school project, allowance, or the pair of shoes you would have given him or her without discussion before the divorce. Your child can’t comprehend the money issues of adults going through a divorce and will only feel guilty about asking. They might even stop asking all together for things that are even urgently needed, like school supplies. Some kids have been known to start stealing them rather than have to ask for them.
Do you have a new significant other in your life? Don’t ask your child to keep this information from your ex-spouse. And don’t ask your child to not tell your ex about your new relationship. This will put undue stress on your child and possibly put them in a position of having to lie. If your wife asks your child whether or not you have a girlfriend, your child shouldn’t have to debate whether or not to tell the truth.
Don’t use your children as a sounding board for problems you are having with your ex. They don’t need to hear how your ex refuses to communicate about school issue and how her being late for every pick up or drop off is creating turmoil in your own life. This will make them feel like they have to take your side and make them feel disloyal to their other parent. They should be able to feel equally loyal to both of you , and not have to worry about getting their mother to pick them up or drop them off on time.
Find a way to attend school functions even if you have a difficult time being with your ex. And, yes, it’s hard, but don’t stand on the other side of the room and avoid all contact with him or her. This will make your children feel embarrassed and anxious in front of their peers. It will also make them feel disloyal to both of you as they hang out first with you, then with their other parent separately. You were once married to this person and created a beautiful child with him or her. Unless there is a physical danger to you (and/or your child), find it within yourself to be somewhat together in the same room with your ex and be civil to one another for the short duration of these events.
If you need help to accomplish the above, don’t be afraid to seek it professionally rather than put your children in the middle. A divorce is probably one of the hardest things you will go through in life, if not the hardest. There is no shame in needing help to make it through; just don’t get that help from your child. He or she will suffer emotional consequences from it. There are plenty of studies that demonstrate the emotional and psychological trauma endured by children put in middle by their divorced or divorcing parents.
Even if you are not required to do so, consider taking a parenting class for divorcing parents. In Nevada, where such a class is mandatory before a divorce will be granted, it can be taken online. Our office will direct you to a class that is approved by the court.