Many people do not understand the difference between divorce and legal separation, also known as separate maintenance.  In a divorce, the martial relationship is completely terminated. Community assets and debts are divided, child custody arrangements are formulated, and, if appropriate, spousal support is awarded.  For the purposes of a legal status, a person is then “divorced.”   In an action for separate maintenance, parties’ assets and debts are divided and custody arrangements are determined.  However the two parties are not officially divorced and, for all intents and purposes, their legal status remains “married.”

In Nevada, parties may seek a legal separation anytime they have a cause of action for divorce.  The two grounds for divorce in Nevada are 1) incompatibility and 2) living separate and apart for over one year.   In addition to these two grounds for obtaining a legal separation, spouses may also seek to become legally separated if one has been deserted by the other for a period of 90 days or longer.

People usually chose to obtain a legal separation as opposed to a divorce for one of two reasons.  First, some people’s religious beliefs prevent them from obtaining an actual divorce.  In this case, people may choose to divide their community assets and devise a custody arrangement. However, they do so with the understanding that they are still technically married according to their religion and they have agreed that neither will ever re-marry.

Second, people chose to legally separate when they are not sure they want to officially divorce but have decided to live apart for an extended period of time.  These people usually decide to officially end the “marital community,” so they will no longer be able to jointly accumulate community assets or community debts.

Amy M. Friedlander, Esq.

Nevada Child Support Guidelines

By law, a parent who does not have custody of a child (the “non-custodial” parent) must pay the parent who has custody of the child (the “custodial” parent) child support.  The amount of child support that a non-custodial parent must pay per month is determined by gross monthly income, which is monthly income before taxes are deducted.   In Nevada, a non-custodial parent obligated to pay child support must pay 18% of gross monthly income for one child, 25% for two children, 29% for three children, 31% for four children, and an additional 2% for each child thereafter.  Furthermore, Nevada statutes contain guidelines for both a maximum and minimum monthly child support amount.  The maximum amount varies depending on the obligated parent’s gross monthly income and the number of children while the minimum amount is $100 per child.

Once a child support order is in place, there are two ways that either parent can change the amount or modify the order.  First, after three years have passed, either parent can request a review of the child support amount to determine whether it is still appropriate based on the parent’s current financial circumstances.  Second, and most common, either parent can request a review of the amount if the obligor’s gross monthly income decreases or increases by 20%. 

In today’s economy, problems arise when a parent gets laid off but must still pay child support.  Ultimately, a parent may request a decrease in the monthly amount of child support owed based on a decrease in income by the requisite 20%.  Inversely, if the non-obligated party can demonstrate an increase in the parent’s gross monthly income by 20%, the court may also increase the monthly amount that is owed.

There are several other important things to consider regarding child support.  First, every child support order must contain a statement regarding health insurance for each child.   A Nevada court will not sign a child support order that does not denote which parent is to provide health insurance.  Second, each party must declare whether he or she is on welfare or is receiving any type of public assistance. If a parent is on welfare, and he or she has accrued child support arrears, the court cannot modify the child support amount without first notifying the welfare division.  Finally, it is important for any person paying child support to understand that interest can be accrued on any delinquent child support amount.  In addition, child support arrears can be reduced to judgment against any non-paying parent and a lien can be recorded against any of his or her real property.  Thus, it is very important for a parent to always understand his or her rights and obligations regarding child support.

Amy M. Friedlander, Esq.

Nevada Flag CloseupOn Thursday, November 12, 2009, the Nevada Supreme Court gave its ruling in an international family law matter, commonly known as Ogawa v. Ogawa.  This case involved three distinct issues effecting a child custody dispute and division of community property in a divorce action.  Under the facts of this case, a now-Nevada resident was divorcing her spouse, who had returned to Japan with their three Japanese-born children.

The first issue was whether the Court had home-state jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), when the Nevada resident filing for child custody didn’t file her divorce complaint until 8 months after the children left the State of Nevada.  The parents had originally moved back and forth from Japan to Nevada with the children.  The mother became a lawful permanent resident of Nevada and put the children in school.  The children later returned to Japan for a temporary 3 month vacation with their father.  When they were not returned, the mother filed for divorce and immediate return of the children.

The Supreme Court found that the court properly found jurisdiction to make custody decisions because Nevada was the children’s “home state” under the UCCJEA, as the expected 3-month temporary  absence did not interrupt the six-month pre-complaint residency requirement necessary to establish home state jurisdiction.  When the 3-month period was excluded, the action was timely filed under the UCCJEA and the Nevada district court had home-state jurisdiction.

The second issue was whether the district court found that Nevada was the children’s state of “habitual residence” and properly ordered the children be returned to Nevada.  The Supreme Court ruled that the district court was correct to the extent that it was authorized to do so under the UCCJEA, even though the district court order was unenforceable under the international Hague Convention (adopted in the U.S. as the International Child Abduction Remedies Act) because Japan has not signed the Hague Convention.  While the Supreme Court found that the Hague Convention does not apply here, the parties remained free to pursue other remedies and the court’s order was correct.

Finally, the Nevada Supreme Court found that the district court had improperly entered the divorce decree by default (awarding the mother all of the community property, spousal and child support, and attorneys fees and costs),  because the father had filed an answer to the divorce complaint with a counter-complaint for divorce, and he appeared in court through counsel.  Therefore, the district court erred in entering a default judgment without considering the merits of the case.

This case was heard and decided by the entire panel of the Nevada Supreme Court.

Steven R. Bartell, Esq.

Boy Holding Dad's handWhen the parents of a child live in different states, and custody or support issues arise, you must take great care before hiring a lawyer to represent you in the case.  Often, there are two or more possible states that may appear to have jurisdiction over the issues.  These issues can be very complicated.  Questions regarding jurisdiction are not subject to general rules but are instead fact specific and dependent on the application of complex statutes and rules.

It is important to consult with an attorney prior to filing an action.  An action filed in an inappropriate jurisdiction is merely a waste of money.  Timing can also be very important in custody jurisdiction disputes.  You should consult an attorney immediately if you are involved in a situation where two parents reside in different states. 

Lastly, all possible outcomes must be discussed and a clear understanding of the risks involved in filing a child custody or support action in any potential jurisdiction must be explained to you by an attorney.

Kari T. Molnar, Esq.

Child Custody Litigation

Child holding mother's handThe most important issue that any litigant will face is a Court’s determination as it pertains to the custody rights of parents with regard to their children.

The decisions litigants make regarding their desired custodial timeshare with the other parent are ones that are personal to them.  It is not the place of a lawyer to advise their client what custodial arrangement is in the best interest of the children in question.  Once a parent decides what custodial arrangement they believe is in the best interest of their child, the Court must decide whether or not the desires of one parent are more appropriate and relevant than the desires of the other parent.  Custodial decisions should not be based on financial considerations, such as child support.  Parents should focus solely on their children’s best interests.  Obviously, issues of domestic violence, substance abuse, psychological abuse, alienation and other facts and factors are relevant for any determination as to what is in the best interest of the children. 

These cases are emotional and complex, and often very expensive due to the hours required to document all necessary facts to demonstrate to the Court what is best for your children.  If you are faced with a child custody dispute, you should seek an attorney experienced in child custody cases. 

John D. Jones, Esq.


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