Pursuant to Nevada Rule of Civil Procedure 16.2, there are certain requirements set by the Court that must be followed by the parties.  Failure to comply with these rules could result in sanctions, including an award of attorney’s fees payable to the opposing party.  Specifically:

1.         16.2 Disclosure.  Within 45 days of service of the Complaint you are required to submit the following information:

Witnesses: The witnesses are any individuals that may have pertinent information regarding the facts and circumstances of your case. Their names, addresses, and telephone numbers should be included if known.  If you are uncertain whether an individual should be named, you can schedule a telephone conference so we can discuss the matter and determine if the individual should be included on the list.  If you don’t believe there is anyone that has such information, then that must also be disclosed.

Documents: All documents containing pertinent information regarding your case, including: bills, bank statements, deeds, credit reports or any other documents you believe we might use during the case, must be disclosed if in your possession or readily available to you. Again, I can assist you in determining whether the documents in your possession should be included in the disclosure.

Financial Disclosure Form. Enclosed herewith is a Financial Disclosure that you must complete to the best of your ability, and sign and return the original to my office along with two recent paycheck stubs.  If your income or expenses change during your case, you will need to amend your Financial Disclosure.  Furthermore, if any of your information regarding income, debts, etc. change before the trial, you must amend your Financial Disclosure.  In this event, please immediately contact my office so that a form can be sent.

2.         Case Management Conference.  Within 60 days after filing of the Answer, the Court must hold a conference with the parties and their attorneys.  This conference will be scheduled by the Court. At the conference, the possibility of settlement will be discussed, what discovery will be required if a settlement cannot be reached, the length of time needed to complete discovery, and the scheduling of the date and length of the trial.

At least 5 days prior to the setting of the Conference, the attorneys must confer and attempt to resolve as many issues as possible.  If this is not completed, the Court may vacate the Conference.  Once the setting is received, our staff will contact you so that we can discuss potential resolutions to your case.

3.         Expert Witnesses. Depending on the issues in your case, an expert witness may be required.  After your case begins, we can determine if this will be necessary.  If so, any potential expert witness will need to be disclosed no later than 90 days after the due date for filing the Financial Disclosure.

Compliance with these rules is not only required, but will assist everyone involved in reaching a speedy resolution to your case.  If you have any questions regarding what is required, or concerns about your ability or willingness to comply with these rules, please contact us so that we can assist you in resolving any compliance issues.

Mills & Mills Law Group focuses its practice in the area of family law including: divorce, custody, child support, spousal support, alimony, guardianship, adoption, termination of parental rights, and abuse and neglect proceedings.  We also practice in the areas of corporate consulting, contracts, business organizations and criminal law.  If there is a specific topic you would like information on, feel free to comment on the blog or contact us directly via our “contact us” page.

1.  The Six Month Rule:

Nevada law provides a six month time limit during which lenders can pursue homeowners for deficiency judgments following a trustee sale.  Here’s an example of how this rule operates in practice.

Homeowner defaults on his first mortgage and the Lender files a notice of default and election to sell.  A trustee’s sale is properly noticed and conducted on January 1, 2011.  The property is sold for less than the homeowner currently owes resulting in a “deficiency” owed to the Lender.  The Lender has until July 1, 2011 to file a complaint requesting a hearing to establish the amount of the “deficiency judgment” the Lender will receive against the homeowner.  The Lender then becomes an unsecured judgment creditor and can attempt to collect the judgment from the homeowner personally through any legal means available.

What happens if the Lender fails to file its deficiency complaint within six months from the date of the sale?  The Nevada Supreme Court has held that the Lender is forever barred from seeking a deficiency judgment.  This is an inflexible rule that is enforced strictly upon the Lender and failure to comply with the rule relieves the homeowner from ever facing any personal liability for the deficiency resulting from the foreclosure sale.

This protection extends not only to the homeowner, but to any individual or business that personally guaranteed repayment of the note.  For example, a parent co-signs for his son to purchase his first home.  The parent is NOT a record owner of the home which is held in the solely in the son’s name.  The son defaults and a foreclosure sale ensues as described above.  If the Lender fails to file for a deficiency judgment within the six month time period, it is barred from pursuing the son, his father, and any other individual or business that may have guaranteed repayment on the loan.  This is true regardless of whether the guarantors of the loan were also owners of record on the real property.

Nor does it matter whether the property sold was utilized for commercial or residential purposes.  While some states may limit the deficiency protections to residential homeowners, the Nevada Supreme Court has allowed blanket protection to all principals and guarantors of a debt secured by real property regardless of whether the property was a single family residence, condominium, or a commercial building.

2.  The Fair Market Value Rule:

Even when the Lender has complied with the six month rule discussed above, the amount of the judgment the Lender can obtain is limited.  Specifically, Nevada law restricts the judgment amount following a foreclosure sale to the difference between the sale price obtained at the foreclosure sale and the fair market value of the property on the date of the foreclosure sale.  Below is an example:

Lender is owed $300,000.  At the time of the foreclosure, the Lender has the property appraised resulting in an appraised value of $250,000.  At the foreclosure sale, the property only brings in $200,000, leaving the Lender short $100,000.  Although the Lender is owed $100,000, Nevada law limits the amount of the deficiency judgment to the difference between the sale price and appraised value ($50,000) rather than the difference between the sale price and the amount owed ($100,000).  This results in the Lender receiving a $50,000 judgment and being forced to forego collection on the remaining $50,000 debt.

Additionally, Nevada law places a burden on the Lender to establish the fair market value at the time of the sale by virtue of an appraisal.  Although there is no Nevada case law on point, it is possible that the Lender’s failure to appraise the property in a timely fashion may preclude it from proving fair market value and, as such, prevent it from obtaining a deficiency judgment in any amount.

3.  The Effect on Junior Lienholders:

When foreclosure occurs and the foreclosure proceeds are insufficient to cover the first mortgage on the property, all junior lienholders (2nd mortgages, home equity loans, lines of credit, etc.) are “wiped out.” This does not mean that the junior lenders are no longer owed money, but that they no longer have any security interest in the foreclosed property.  The debt owed to the junior lenders is essentially a “deficiency” because the foreclosure proceeds were insufficient to repay them.  This raises the question of whether the six month time limit that applies to the foreclosing lender also applies to the junior lenders.

On this point, Nevada law is unclear.  The deficiency statutes can be read and interpreted both to preclude application to junior lenders or to require them to file within the six month time period.  This firm has successfully argued that the six month time limit did apply to preclude a lender from pursuing a judgment on a second mortgage.  In that case, a single lender held both the first and second security positions on the property.  The foreclosure proceeds were insufficient repay the first and second notes, and the Lender filed a complaint to collect on both.  However, the Lender failed to file its complaint within the six month time period.  We filed a motion to dismiss that was granted by the district court, which declined to distinguish between the first and second mortgage in terms of the applicability of the six month time limitation.

One would assume that Lenders would be aware of this rule and have no problems complying with the six month time limitation.  However, due to the wave of foreclosures in Nevada and the time consuming process of the Nevada Mediation Rules, it is not surprising that Lenders have failed to comply with the procedural rules in order to receive deficiency judgments.  These failures can result in substantial financial losses.  In the case described above, the Lender was precluded from receiving a judgment in excess of $300,000.

If you are facing or have recently been involved in foreclosure proceedings, it is important that you speak with an attorney regarding the issues discussed above.  Doing so will allow you to take advantage of the protections that Nevada law offers to homeowners that have suffered due to the failing housing market and the depressed economic climate.

Mills & Mills Law Group focuses its practice in the area of family law including: divorce, custody, child support, spousal support, alimony, guardianship, adoption, termination of parental rights, and abuse and neglect proceedings.  We also practice in the areas of corporate consulting, contracts, business organizations and criminal law.  If there is a specific topic you would like information on, feel free to comment on the blog or contact us directly via our “contact us” page.

1.  Jurisdiction.

The Nevada courts have jurisdiction to dissolve  a marriage based on the residency of at least one of the parties.  Residency for the purposes of filing a divorce consists of

A.  Living in Nevada for at least six weeks prior to filing a complaint for divorce, and

B.  Having a present and indefinite intent to make Nevada your home.

If you meet these two requirements, you can file a complaint for divorce in Nevada.  This is true even if your spouse has never lived here, or even set foot in the state.   However, the court’s ability to make decisions about your community property will be extremely limited if your spouse has never resided in Nevada and the property that needs to be divided is located in another state.  In such a case, the Court can grant you a divorce dissolving your marital status, but it will NOT adjudicate your property rights relative to your ex-spouse.

The courts also have the ability to divorce couples who lived in Nevada at the time they were married but have since moved out of the state, provided that they file for divorce in the county in which they were married.

2.  Grounds for divorce.

Unlike many other states, the grounds, or reasons, for filing for divorce in Nevada are quite simple.  Specifically:

a.  Insanity existing for 2 years prior to the commencement of the action. Upon this cause of action the court, before granting a divorce, shall require corroborative evidence of the insanity of the defendant at that time, and a decree granted on this ground shall not relieve the successful party from contributing to the support and maintenance of the defendant, and the court may require the plaintiff in such action to give bond therefor in an amount to be fixed by the court.

b.  When the husband and wife have lived separate and apart for 1 year without cohabitation the court may, in its discretion, grant an absolute decree of divorce at the suit of either party.

c.  Incompatibility.

After reading the three causes upon which you could file for divorce, you may wonder why section “a” and “b” above are necessary at all.  The answer is, they are not.  Nevada law allows you to file for divorce if you are willing to state that you are “incompatible” in marriage.  As a rule of thumb, this means that your likes, dislikes and dispositions have become so divergent that you can no longer live as husband and wife and there is no hope for reconciliation.  In short, you are no longer “compatible” with your spouse.  There is no need to provide any evidence to prove this beyond a sworn affidavit; provided you meet the jurisdictional requirements explained above and you are willing to say you are incompatibly married, you will get a divorce.

3.  No Fault rules.

Nevada is a community property state, which essentially means that any debt incurred or asset acquired during the existence of the marriage is community property.  Nevada law directs the courts to divide community property “equally” upon granting a decree of divorce.  Unlike some other states, the misconduct, abuse, and/or infidelity of one spouse is NOT a basis upon which the court can make an unequal disposition of property. Only in situations where a spouse’s misconduct can be shown to have had a substantial effect on the value of the community property can the court compensate the other spouse for the misconduct.

The most common example in Nevada is gambling.  Often, one spouse will develop a gambling addiction that results in significant financial losses to the marital community.  These gambling losses are relatively easy, though time consuming, to prove since habitual gamblers use “player’s club” cards that track their winning and losses electronically.  Additionally, bank records can provide the location and amount of ATM withdrawals, which will inevitably have occurred in large amounts from machines located inside a casino.

In such a situation, the Court may do one of two things.  First, if there is any debt associated with the gambling, the court may assign 100% to the party incurring the debt rather than split the debt equally.  Additionally, the Court may award more than 50% of the remaining assets to the non-gambling party to compensate for the assets that were wasted due to the gambling of the other spouse.   The Courts will not, however, undertake such a task in cases involving recreational gambling or where the spouse was aware of the problem and did nothing to stop it.  Such a remedy is only involved where the losses are substantial and have been secreted from the non-gambling spouse.

The question is often asked whether infidelity or spousal abuse will result in the victimized spouse receiving more of the marital assets in the divorce.  The short answer is no.  Again, unless the misconduct can be directly tied to financial loss, the court is required to make an equal division of the marital community.  While it is possible that a court may reimburse the victim of spousal abuse for medical expenses, or the victim of infidelity for funds spent on the other’s indiscretions, it is the victim’s burden to prove the exact amount of the damage sustained and link it to the misconduct before the Court can award compensation.

If you have any questions about what you’ve read or would like additional information on divorce in Nevada, please feel free to comment or contact us for a consultation.

Mills & Mills Law Group focuses its practice in the area of family law including: divorce, custody, child support, spousal support, alimony, guardianship, adoption, termination of parental rights, and abuse and neglect proceedings.  We also practice in the areas of corporate consulting, contracts, business organizations and criminal law.  If there is a specific topic you would like information on, feel free to comment on the blog or contact us directly via our “contact us” page.

FORMATION OF DOMESTIC PARTNERSHIPS IN NEVADA

Approximately 23 states in the United States currently allow for some form of marriage, civil union, or domestic partnership for same-sex couples.  While the Nevada constitution was amended to prohibit same sex marriage in Nevada in 2002, the Nevada legislature subsequently passed the Nevada Domestic Partnership Act (“DPA”) in October of 2009.  The act’s recited purpose is to allow for the creation of a social contract between two individuals who:

1) have chosen to share one another’s lives in an intimate and committed relationship of mutual caring; and

2) Desire of their own free will to enter in to a domestic partnership…

The domestic partnership is validated much in the same way one creates a business in Nevada, by filing an application with the Secretary of State and paying the associated fees.  You can view the application here: http://nvsos.gov/Modules/ShowDocument.aspx?documentid=1192 The statute also requires that the applicants

3) have a common residence,

4) are not married or a member of another domestic partnership and

5) are not related by blood to a degree that they would be prevented from marrying under Nevada law.

No solemnization or other religious ceremony is required for the domestic partnership to be valid, and each religious faith is left to decide whether it will perform or recognize domestic partnership ceremonies as part of its religious tenets.

THE EFFECTS OF A DOMESTIC PARTNERSHIP IN NEVADA

NRS 122A.090 states that a domestic partnership “is a valid civil contract entitled to be treated in all respects under the laws of this State as any other civil contract created pursuant to title 11 of NRS…”  Title 11 of the Nevada Revised Statutes contains chapters dealing with all aspects of domestic relations, including:  Premarital agreements, Divorce, Custody and Support of Minor Children, Parentage, Adoption, and Termination of Parental Rights.

Of specific interest are the effects of the DPA on 1) parentage of a domestic partner who is not the biological parent of a minor child born into the domestic partnership, and 2) the custodial rights of domestic partners over a child adopted or born into the domestic partnership if the domestic partnership is terminated.  These issues are particularly relevant in the context of a female domestic partnership, where one of the partners gives birth to a child during the existence of the domestic partnership and the other is not biologically related to the child.

Parentage under the DPA

Under chapter 126 of the Nevada Revised Statutes there are rules that  apply to husbands when a child is born to his wife during the marriage.  For example, under NRS 126.061 a husband whose wife gives birth to a child by virtue of artificial insemination is legally deemed to be the father of that child provided that the couple has signed the appropriate documents and followed the protocol described in the statute.  Assuming this to be the case, the donor of the sperm used in the artificial insemination is deemed to have no legal relationship to the child and the husband legally becomes the child’s father.

Similarly, under NRS 126.051 a husband whose wife gives birth to a child during the marriage is presumed to be the father of that child, regardless of actual parentage.  Additionally, the execution by both husband and wife of an acknowledgment of paternity at the time of the child’s birth effectively establishes the father’s paternity of the child if not contested within 60 days of its execution.

On its face, the DPA grants the same rights to a female domestic partner who is a non-biological parent, as are granted to a husband who is not biologically related to his wife’s child under Nevada law.  While the statutes cited above use the word “husband” instead of “spouse,” the DPA specifically states that “where necessary to protect the rights of domestic partners pursuant to this chapter, gender specific terms referring to spouses must be construed to include domestic partners.”  Essentially, this means that anywhere the designations “husband” or “wife” appear in title 11 of the Nevada Revised Statutes, the same privilege associated with that designation is extended to a domestic partner regardless of gender.

Theoretically then, the adoption by a non-biological parent of a child born to her domestic partner during the existence of the partnership would be unnecessary.  If the child was conceived by artificial insemination, then the non-biological parent would automatically be considered a legal parent assuming all proper protocol was followed.  Additionally, if the child is born during the domestic partnership but not due to artificial insemination, the non-biological parent is still presumed to be the legal parent.  An execution of an acknowledgement of paternity (or parentage) would effectively establish legal parentage if not challenged within 60 days.  The non-biological parent would then enjoy all the rights and responsibilities of the natural parent without the necessity and expense of an adoption proceeding.

Divorce and Custody under the DPA

The DPA also specifically incorporates NRS chapter 125, which specifies the rules for dissolution of marriage, as the rules that will apply to a domestic partnership should either party wish to terminate the relationship.  The domestic partners would be “divorced” just as any other married couple, with the same rights and obligations regarding community property, alimony, child support and child custody as provided to traditionally married couples.  Read in conjunction with NRS chapter 126, this means that upon divorce, the non-biological parent would enjoy the same rights and presumptions regarding joint custody as the biological parent notwithstanding the lack of biological relationship between parent and child.  The parties to the divorce would stand on equal footing and neither would have any advantage in terms of preference of custody when the Court determines what custody arrangement will be in the child’s best interest.

To date, the above scenarios have not been challenged or litigated in the Nevada Supreme Court.  It is therefore impossible to say exactly how the Court will interpret the effects of  NRS 122A.200 on the parentage and custody rights of female domestic partners.  However, in light of the foregoing discussion, female domestic partners should be able to take advantage of all the benefits regarding parentage and custody that are afforded to married couples under title 11 of the Nevada Revised Statutes.

If you or someone you know is interested in more information regarding this topic or would like to speak to an attorney, please do not hesitate to contact us by phone or via our “contact us” page.

Mills & Mills Law Group focuses its practice in the areas of family law including: divorce, custody, child support, spousal support, alimony, guardianship, adoption, termination of parental rights, and abuse and neglect proceedings.  We also practice in the areas of corporate consulting, contracts, business organizations and criminal law.  If there is a specific topic you would like information on, feel free to comment on the blog or contact us directly via our “contact us” page.

1.)  Following procedural court rules can be a nightmare. The procedural rules of any court proceeding can be the most complex aspect of a contested case.  Making sure these time sensitive rules are complied with is the kind of thing that keeps attorneys awake at night.   Even experienced attorneys who do not routinely practice in a specific area can be caught unaware by some unusual procedural nuance.  In the Eighth Judicial District Court, proper person litigants are required to comply with all the procedural rules as if they were attorneys.  That means there is little forgiveness if you make a mistake, even if you have no formal training or experience.  Rather than take on this risk, retain an attorney who practices regularly in the area of law involved in your case.

2.)  Attorneys know the judges and the “unwritten” rules.

One of our attorneys was recently involved in a contested family law case where the other attorney, although licensed in Nevada, practiced primarily in the state of Utah.  Our attorney explained the position he would take, which he believed would be consistent with the Court’s.  Our attorney was able to predict the judge’s reaction to the case as he had argued many times before this particular judge.  The opposing party did not agree with our attorney’s position and elected to present it to the court rather than settle.  Opposing counsel was flabbergasted when the Court essentially repeated what our attorney had said in settlement negotiations just minutes before the hearing.  When opposing counsel pressed the Judge in disagreement, the Court simply replied “You’re not in Utah.”

The scenario above is not uncommon when you have an attorney who is not familiar with the tendencies and predilections of a particular judge or department.  When an individual tries to represent him or herself, the example above applies even more so.  Proper person litigants simply do not have the day to day experience with the courts and judges to know how to best present their position to a particular judge.  Experienced attorneys do, and can provide you with a substantial advantage depending on their experience in a particular courtroom or dealing with a specific area of law.

3.)  You are emotionally compromised.

Virtually every person who has ever been involved in a law suit will tell you that it was among the most stressful experiences in his or her life.  This is primarily because most parties have a significant emotional or financial stake in the outcome of the case that causes constant worry and enormous stress.   When a person takes on the additional responsibility of self representation under these conditions, the results can be catastrophic.

This is true for two reasons.  First, the individual is already under a tremendous amount of stress due to the existence of the law suit.  This stress is, of course, in addition to the regular stressors that each of us feel on a daily basis.  Self representation adds an additional level of stress and worry that can have serious long term physical and emotional effects on the individual.  I have personally seen the physical deterioration of clients during prolonged legal proceedings and the effects are even more pronounced without the benefit of legal expertise.

Second, family law proceedings are by nature emotionally charged.  Making legal decisions based on emotions rather than reason is always a bad idea.  The attitude that is often taken by litigants that they will “fight to the end” and consequences be damned always comes at great cost and rarely results in the outcome the litigant wants.  An attorney does not have the same emotional involvement in your case that you do and can act as a filter to help you to understand the legal consequences of your decisions apart from the emotion.

4.  You will end up giving away the farm.

I recently had a case where my client and the opposing party had agreed to a property settlement agreement to finalize their divorce case.  My client’s last demands were to retrieve a TV and a computer that she had left in the home when the couple separated. Her husband refused unless she was willing to give up 50% of her 401k, which was worth substantially more than the used electronics.  Under Nevada law, her 401K was exposed to a community property claim if the matter went to trial and my client would almost certainly lost a large chunk of her retirement savings. Yet my client was willing to take that chance in order to get a used computer and television.

This happened for two reasons. First,  as explained above in section 3, my client was emotionally compromised and was willing to risk a substantial amount of money out of spite.  Second, despite my many explanations to her regarding the fact that her 401K was community property and would be split by the Court, she still did not believe that he was entitled to any of it.  Fortunately, I was able to talk her “off the ledge” and she realized that she would be sacrificing a huge windfall for what amounted to a few hundred dollars in used electronics.  If she did not have an attorney, she would have almost certainly forced the court to make a decision which would have resulted in her suffering a substantial financial loss.

5.)  You don’t let an accountant work on your brakes.

You would not let an accountant work on your car any sooner than you would let a mechanic file your taxes.  Likewise, any individual who is ever exposed to a situation where legal rights or obligations are implicated should not handle it themselves, but should consult a qualified attorney.  The attorneys at Mills & Mills law group are all members of good standing of the Nevada Bar and admitted to practice in all courts of the state. Our attorneys have also argued before the Supreme Court of Nevada and the federal 9th Circuit Court of Appeals.  We attend regular continuing legal education classes to ensure that we are up to date on the law in the fields where we practice.  Our experience and legal knowledge provide us with a unique skill set not possessed by the average individual that enables us to assist our client in protecting and asserting his or her legal rights.  If you are facing a situation where your legal rights are implicated, it is imperative that you consult with an attorney before taking any action.

Mills & Mills Law Group focuses its practice in the area of family law including: divorce, custody, child support, spousal support, alimony, guardianship, adoption, termination of parental rights, and abuse and neglect proceedings.  We also practice in the areas of corporate consulting, contracts, business organizations and criminal law.  If there is a specific topic you would like information on, feel free to comment on the blog or contact us directly via our “contact us” page.

1:  LEAVE YOUR KIDS OUT OF IT.  The biggest mistake that parents make in any contested child custody case is inappropriately involving children.  Not only does it reflect poorly on your judgment as a parent, it can also violate court rules and jeopardize your position if you are are seeking primary or joint custody.  Innappropriate conduct can be any of the following:

- Using a child as a go-between: Kids are not old or mature enough to act as messengers for adult communications.  Don’t ask your child to hand over child support, or to find out what time the other parent will be available to go over finances.  Allow your kids to be kids and handle the grown up stuff yourself.  As uncomfortable as you may be communicating with the other side immediately after separation, imagine how your child feels doing the same thing.  Keep your kids out of it and handle the grown up stuff on your own.

- “Venting” to your child or making any kind of disparaging remarks to your child about the other parent: You may have just gotten out of the worst marriage of your life to the most unfaithful selfish, self destructive person you have ever met.  But to your child, that person probably still walks on water.  Nothing you can possibly say will be beneficial or necessary for your child to hear if it is something bad about your ex.  There are exceptions based on a child’s maturity level and if necessary for the child’s safety, but these are extremely rare.

Such statements are not only damaging to a child, but prohibited by Court rule and can result in sanctions against you.  In extreme cases, such statements can result in “parental alienation” and cause significant distress to the relationship between a child and the other parent.  Parents who are found to have intentionally alienated a child from the other parent often lose significant time, and in some cases custody of their children, in an effort to limit the child’s exposure to the damaging behavior.

The only thing your child should ever have to consider is the fact that he/she is loved by both parents and that you are doing your best to get things worked out.  Anything beyond the basics is probably unnecessary and potentially damaging.

- Forcing your child to choose between you and the other parent or “tell the judge” what they want: Not only can this be extremely stressful for your child, but it also places your child in an impossible position.  Undoubtedly, your child will want to please you while at the same time fear upsetting the other parent.  This often leads to conflicting statements to opposing parties, making it impossible to determine what your child really wants and destroying their credibility.

There is a mechanism in Clark County called a child interview that allows for a child “of sufficient age and intelligence” to express a preference as to custody.  However, this is rarely done by a judge and never occurs in the presence of the parties.  Talk to an attorney about how best to gather this information if your child has already expressed an unsolicited opinion and is old enough to form an intelligent preference.

2.  SPEND TIME WITH YOUR KIDS. Spending significant quality time with your kids immediately following a separation is important for several reasons.  Not only will it foster some sense of stability for your children in the midst of the tumult, it will also ensure that your ex does not try to claim that you are un-involved with the children’s lives.

Quality time here does not mean movies and ice cream.  Although recreational activities are undoubtedly important, a more significant factor in determining custody is establishing which parent is a constant presence “where the rubber meets the road.” Homework, housework, extra-curricular activities, meals, shopping, and medical appointments are all responsibilities that need to be fulfilled; the parent who has appeared through history to be the more reliable provider of these necessities is likely have a more significant share of the custodial time in the future.  In short, if you want to be a part of your children’s day to day experience, you must act like it.

3.  MAKE IT OFFICIAL WITH A COURT ORDER. If you are not married or separated and facing a divorce, do not wait for the other side to file something before you take action.  Trying to work it out amicably with the other side is important and always the first step toward resolution.  However, leaving the custody issue in limbo leaves both parties open to uncertainty and unnecessary conflict.

Handshake agreements and oral representations are ALWAYS a bad idea when it comes to custody.  While you may be getting along well now, there is a reason that you are no longer together.  This will eventually surface in the form of a custody dispute.  You will end up in court anyway, except now it will be with a venomous disposition and not with the same amicable feelings you once shared with your ex.  What could have been resolved easily when you were both getting along now becomes a lengthy and often very expensive ordeal before the issue is resolved.

It is always better to get a a formal court order establishing your custodial rights.  Once entered, you are free to disregard it completely upon mutual agreement.  However, if it comes down to a fight, you already have an order in place that dictates the ground rules.

Following the three tips above will almost certainly make your life easier immediately following your separation and will place you in a much better position in inevitable custody proceedings that follow.

Mills & Mills Law Group focuses its practice in the areas of family law including: divorce, custody, child support, spousal support, alimony, guardianship, adoption, termination of parental rights, and abuse and neglect proceedings.  We also practice in the areas of corporate consulting, contracts, business organizations and criminal law.  If there is a specific topic you would like information on, feel free to comment on the blog or contact us directly via our “contact us” page.

Navigating the child support laws in Nevada can be tricky and there are dozens of common misconceptions that can cost litigants thousands of dollars because they do not understand the intricacies of Nevada support law.  Below are some examples of common pitfalls and the information you need to avoid them.

1.  I don’t have to pay support because there is no court order.

Yes you do.  Under Nevada’s family support laws, the parent’s obligation to support a child begins from birth.  For both parents, this is defined as the reasonable costs of care and maintenance for the minor child.  For the father, this includes the mother’s “costs of confinement.”  This means that dad will be responsible for at least some (usually 50%) of mom’s medical expenses including pre-natal, post-natal and hospitalization costs.

Perhaps the most important thing to remember about your child support obligation is that it begins regardless of the existence of a formal court order.  The custodial parent does NOT have to have a formal determination by a court that you owe support.  Once the custodial parent files a court action, the court can order you to pay support up to 4 years immediately preceding the filing of the complaint.

For example, your child is born on 1/1/2012.  You are not living with the mother and have not provided any payments to her for the support of your child.  Mom gets fed up and files for support on 1/1/2014.  When determining what your prospective child support obligation should be, the Court will also assess against you 24 months of past support notwithstanding that you were not formally ordered to pay.  To determine this amount, the court most often takes your prospective monthly payment and multiplies it by the number of months you haven’t paid then issues a judgment against you for that amount.

So, let’s assume for illustration purposes that your prospective payment is calculated to be $650.00 per month.  At the time this amount is established, the Court will also enter a judgment against you  for $15,600.00 ($650.00 x 24 months) and most likely order you to pay $100.00 on top of your regular obligation to satisfy this debt.

2.  My ex has never asked for support so I don’t have to pay.

Pay it anyway.  It does not matter whether the custodial parent ever demands payment or files an action for support.  If you have your child less than 40% of the time, you are responsible to pay support according to Nevada law.  If you have your child 40-60% of time, you still may be obligated to pay support under Nevada law.  Be sure to talk to an attorney to determine the exact amount you should be paying so that you make sure your payments meet the statutory requirements.

3.  My ex said not to worry about child support so I’m not going to pay.

Big mistake.  Child support is like “death and taxes.” It is virtually inescapable except under very limited circumstances.  Lets take the following scenario as an example:

Mom and Dad divorce and Dad is ordered to pay child support for the parties’ eight year old son.  After a few months, Dad loses his job and falls behind.  Mom, being the understanding co-parent that she is, says “don’t worry about it for now” and “just pay if you can.”  Dad does not make any more payments.  Dad continues to have visitation with son, has regular conversations with Mom and, despite the fact that Dad is now thousands of dollars behind, the issue of back child support is never raised.

Shortly after son’s 17th birthday and without warning, Mom files an action with the district attorney’s office for enforcement of the child support order, 9 years from the date of its original entry.  At the first court appearance, Dad implores the court that he should not have to pay because Mom told him “not to worry about it.”

Sorry Dad, you’re going to pay back every dime.  There is no statute of limitations on the collection of previously ordered child support, which means that Mom can try to collect no matter how long its been since she last asked you for money.  Unless Mom demonstrates “intentional relinquishment of a known right” she has not waived her right to the child support.  Waiver requires some affirmative and definitive act showing that Mom understood her right to support and intended to waive it forever.  In the example above, Mom’s casual statements would likely be insufficient to be considered a waiver.

The only way to ensure that you will not be obligated to repay the “waived” support is to have a written stipulation and order signed by both parties that can be filed with the Court commemorating your agreement.

4.  I lost my job 9 months ago so my child support went down, right?

NO.  While the amount of child support you pay is tied to a percentage of your income, your obligation remains static unless adjusted by subsequent court order.  The court can and will lower your support obligation at any time you have a decrease in income of 20% or more.  However, you must take the affirmative step of filing a request for modification immediately when the decrease in income occurs.

Nevada law is very clear in stating that child support cannot be retroactively modified.  This means that your child support obligation can only be lowered prospectively beginning from the date you file your request.  In the scenario above, you would still have to pay the original amount for the nine months you were unemployed and would continue to have to do so until you filed a request for relief from the existing order.

The inverse is also true.  If you are receiving support and the non-custodial parent receives an increase in income of 20% or more, you should immediately file for an adjustment in the support amount.  Again, the court will only adjust the obligation prospectively from the date of your request forward, so you could be giving up a substantial amount of money by not filing immediately.

Hopefully the information above has cleared up some confusion regarding child support laws in Nevada.  Please post a comment if you have other questions you want answered or set up an appointment to come meet with us in person.

Grandparent’s Rights Appeal

The language of NRS 126.031 explains the relationship that exists between father and child, regardless of whether the parents were married at the time of the child’s birth:

1.  The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.

2.  Except as otherwise provided in a court order for the custody of a child:

(a) Except as otherwise provided in paragraph (b), the mother of a child born out of wedlock has primary physical custody of the child if:

(1) The mother has not married the father of the child; and

(2) A judgment or order of a court, or a judgment or order entered pursuant to an expedited process, determining the paternity of the child has not been entered.

…

As you can see from the first paragraph, the relationship between father and child is not dependent on whether the parents were married.  The misconception arises due to the language in subsection 2, which states that an unmarried mother has primary (not sole) custody of the child absent an order determining the child’s paternity.

What is not commonly known is that the execution of a voluntary acknowledgement of paternity becomes a “judgment determining paternity” if it is not challenged within 60 days of its signing.  NRS 126.053.  This document is routinely presented to both mother and father at the hospital and is often signed by both parties in conjunction with the application for birth certificate.  Assuming this document is not challenged within 60 days, the father’s paternity is established and subsection 2 of NRS 126.031 awarding primary custody to the mother becomes ineffective by its own terms.

At that point, there should be no legal difference between an unmarried mother and father with respect to each individual’s custodial rights.  Unfortunately, NRS 126.031 leaves open the question of custody when paternity has been established, but there is no court order establishing custody.  As such, law enforcement officials routinely and erroneously side with the mother of the child in any custody dispute unless the father presents a court order specifically detailing his custodial rights.  This mistake by law enforcement perpetuates the belief that a father’s relationship to his child is controlled by the whim of the custodial mother.

The best and most practical solution for a father in this position is to immediately file a complaint and motion to establish custody in the district court.  During your court proceeding, the judge can issue orders to ensure that you have meaningful contact with your child and ensure that the child’s needs are being met.

However, before you take any action, you should speak with an attorney about the specific facts of your case.  Each case is as unique as the family it involves and an attorney can advise you of the best course of action to take based on your unique circumstances.

Nevada allows for grandparents to apply for visitation rights under very limited circumstances.  The conditions under which a grandparent may seek visitation are set out in detail under NRS 125C.050.  If your adult son or daughter:

(a) Is deceased;

(b) Is divorced or separated from the parent who has custody of the child;

(c) Has never been legally married to the other parent of the child, but cohabitated with the other parent and is deceased or is separated from the other parent; or

(d) Has relinquished his or her parental rights or his or her parental rights have been terminated,

then the Court may grant you a right of visitation with your grandchildren.  The court will only do so if it determines that the parent has unreasonably denied or restricted contact between you and your grandchild.  In deciding whether to give you visitation, the Court will presume that the custodial parent is acting in the child’s best interest by not allowing it.

This presumption puts a significant burden on you to prove by clear and convincing evidence (think 80% sure) that contact between you and your grandchild is in the child’s best interest.

In evaluating whether you have overcome this presumption, the Court considers your relationship with the child, your capacity to care for the child, your ability to cooperate with the parent to see that the child’s needs are met, and any other factor the Court believes relevant as to the child’s best interest.  If the Court finds that you have proven by clear and convincing evidence that contact between you and your grandchild is in the child’s best interest, then the Court will grant a limited right of visitation.

Keep in mind that if either parent of your grandchild allows you reasonable contact with the child, the Court will not order any specific visitation schedule.  As long as a parent voluntarily provide you with “reasonable contact” you are not eligible for a visitation order under NRS 125C.050.

Also, remember that the visitation provided for under NRS 125C.050 is substantially different than if you were to pursue guardianship or custody of a grandchild because of a parent’s unfitness, or if you were to pursue temporary placement of a grandchild due to the involvement of Child Protective Services.  In those actions, grandparents are afforded special standing to by virtue of their biological relationship, but that relationship alone does not mean a grandparent will prevail. The statutory rules the court must follow vary in each case type, but the overarching standard for all determinations involving the custody of a child is the child’s best interest.

If you are a grandparent and are considering pursuing custody, guardianship, visitation or placement of a grandchild with you, please give us a call to discuss the specific facts of your case.