Divorce in Nevada: The Legal Process, Your Rights, and What to Expect
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Divorce in Nevada: The Legal Process, Your Rights, and What to Expect
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Product Details
| ISBN-13: | 9781938803642 |
|---|---|
| Publisher: | Addicus Books |
| Publication date: | 04/15/2014 |
| Series: | Divorce In |
| Pages: | 220 |
| Product dimensions: | 8.40(w) x 5.40(h) x 0.40(d) |
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Read an Excerpt
Divorce in Nevada
The Legal Process, Your Rights, and What to Expect
By Marshal S. Willick
Addicus Books, Inc.
Copyright © 2014 Marshal S. Willick, Esq.All rights reserved.
ISBN: 978-1-938803-64-2
CHAPTER 1
Understanding the Divorce Process
At a time when your life can feel like it's in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of many aspects of your divorce may be unknown, increasing your fear and anxiety. But there is one part of your divorce that does have some measure of predictability, and that is the divorce process itself.
Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing stages and moving forward with your divorce can reassure you that it won't go on forever.
Develop a basic understanding of the divorce process. This will lower your anxiety when your attorney starts talking about "depositions" or "going to trial," and you feel your heart start pounding in fear. It can reduce your frustration about the length of the process because you understand why each step is needed. It will support you to begin preparing for what comes next.
Most importantly, understanding the divorce process will make your experience of the entire divorce easier. Who wouldn't prefer that?
1.1 What is my first step?
Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer's experience and reputation.
If you are considering divorce but are not ready to file, call an attorney to schedule an appointment to obtain information about protecting yourself and your children. No legitimate lawyer will encourage you to proceed with a divorce unless you have decided that is the only option for you.
Ask what documents you should bring to your initial consultation. Make a list of your questions to bring to that first meeting. Start making plans for how you will pay your attorney to begin work on your case, and make sure you can afford the attorney that you hire. Having all of the information necessary to move forward intelligently is extremely important.
Not all attorneys are alike. If you have a fairly simple case — short-duration marriage, no children, and few assets and debts — any family law attorney should be able to assist you. However, if you have complex or emotionally charged issues, you should consider seeking representation from a lawyer with credentials indicating a higher level of specialized training and expertise.
In Nevada, this would mean a family law specialist, or a member of the American Academy of Matrimonial Lawyers (AAML). The state bar keeps a list of certified specialists at http://www.nvbar.org/content/certified-specialists. You can find a list of AAML members at www.AAML.org.
1.2 Must I have an attorney to get a divorce in Nevada?
No. You are not required to have an attorney to obtain a divorce in Nevada. However, if your case involves children, alimony, significant property, debts, or other complex issues, you should seriously consider hiring counsel. Remember the adage attributed to Abe Lincoln: "A man who represents himself has a fool for a client."
If you choose to represent yourself, you will be expected to follow all rules and procedures as if you were an attorney. Failure to do things properly or adequately to protect your own rights may result in irreversible negative consequences. In other words, if you make mistakes while acting on your own behalf, it may be impossible for any lawyer to fix those mistakes.
If you are convinced that you can or are determined to represent yourself, you can find forms intended to assist you at either the self help center located at the Family Court website or on our website at www.willicklawgroup.com.
A person who proceeds in a legal matter without a lawyer is referred to as being pro se (pronounced "pro say"), meaning on one's own. You will also hear it referred to as "appearing in proper person."
If you are considering proceeding without an attorney, at a minimum have an initial consultation with an attorney to discuss your rights and duties under the law. You may have rights or obligations you don't even know exist. Meeting with a lawyer can help you decide whether to proceed on your own.
1.3 What steps are taken during the divorce process?
The divorce process in Nevada typically involves the steps listed below.
• Obtain a referral for a lawyer.
• Schedule an appointment with an attorney.
• Prepare questions and gather needed documents for the initial consultation.
• Meet for the initial consultation with attorney.
• Pay retainer to attorney and sign retainer agreement.
• Provide requested information and documents to attorney.
• Take preliminary actions as advised by attorney, such as opening or closing financial accounts.
• Attorney prepares complaint for divorce, summons, and preliminary injunction for your review and signature.
• Attorney files complaint with the court, has the summons issued, and issues the injunction.
• Spouse is served with all filed documents by a process server.
• Negotiations begin regarding terms of temporary orders on matters such as custody, support, and temporary possession of the family home. Attorneys prepare financial disclosure forms and child-support guidelines for temporary hearing.
• Case management conference/temporary order hearing is held.
OR
• Parties reach agreement on temporary orders.
• Trial date and discovery deadlines are set.
• Temporary orders are prepared by one attorney, approved as to form and content by the other attorney, and submitted to the judge for signature.
• If there are minor children, parties comply with any local rules or court orders to attend parent education class, develop a parenting plan, or participate in mediation.
• Both sides conduct discovery to obtain information regarding all relevant facts. Obtain valuations of all assets, including expert opinions if needed.
• Confer with attorney to review facts, identify issues, assess strengths and weaknesses of you case, review strategy, and develop proposal for settlement.
• Spouses, with the support of their attorneys, attempt to reach agreement through written proposals, mediation, settlement conferences, or other negotiation.
• Parties reach agreement on all issues.
OR
• Parties prepare for trial on unresolved issues.
• Preparations proceed and include the preparation of witnesses, trial exhibits, legal research on contested issues, pretrial motions, trial brief, preparation of direct and cross-examination of witnesses, preparation of opening statement, subpoena of witnesses, and closing argument and suggestions to the court.
• Attorney prepares decree and court orders for the division of retirement plans for approval by spouses and attorneys.
• Meet with attorney for final trial preparation.
• Trial is held.
• Judge makes decision.
• Attorney prepares decree. Spouse's attorney approves decree as to form.
• Decree submitted to judge for signature.
• Judge signs decree of divorce. Make payments and sign documents (deeds or titles) according to decree.
1.4 Is Nevada a no-fault state or do I need grounds for a divorce?
Nevada, like most states, is a "no-fault" divorce state. This means that neither you nor your spouse is required to prove that the other is "at fault" in order to be granted a divorce. It is not necessary to allege or prove factors such as infidelity, cruelty, or abandonment to receive a divorce in Nevada. Rather, the only required assertions are "incompatibility" (that you and your spouse can no longer live as husband and wife) and that there is no chance of reconciliation.
Older grounds for divorce (insanity existing for two years before filing, or separation for more than one year) are still "on the books" but are essentially never used.
The only "proof" of incompatibility usually required is testimony by either you or your spouse, which is likely to be sufficient evidence for the court to rule that the marriage should be dissolved.
Many divorces are granted "on the papers" without a court appearance. If there is a "prove up" hearing, however, this testimony must be given, usually by the spouse who filed the initial complaint for divorce. He or she will be asked (or "canvassed") those simple questions.
Don't be surprised by the lack of interest by the judge in any "reasons" why the marriage failed. It is simply irrelevant to whether a divorce will be granted.
1.5 Do I have to get divorced in the same state I married in?
No. Regardless of where you were married, you may seek a divorce in Nevada if the jurisdictional requirements of residency are met.
1.6 How long must I have lived in Nevada to get a divorce in the state?
Either you or your spouse must have been a resident of Nevada for at least six weeks before the complaint for divorce is filed. This residency requirement is very short compared to most states and makes Nevada a popular place for parties to come to seek a divorce.
The judge will need "corroboration" that one of the parties is a Nevada resident. Usually, this is provided by testimony or a short affidavit of a resident witness who may have to testify that either you or your spouse was a resident (i.e., that the witness has seen you physically present in Nevada) for at least six weeks before the complaint was filed.
1.7 My spouse has told me that she will never "give" me a divorce. Can I get one in Nevada anyway?
Yes. Nevada does not require that your spouse agree to a divorce. If your spouse threatens to not "give" you a divorce, know that in Nevada this is likely to be an idle threat without any basis. Under Nevada law, to obtain a divorce you must only show that the court has jurisdiction over one of the parties to the marriage to affect the "status" (i.e., make you single instead of married).
In short, it is not necessary to have your spouse agree to the divorce or to allege the specific difficulties that arose during the marriage to obtain a divorce in Nevada.
1.8 Can I divorce my spouse in Nevada if he or she lives in another state?
Yes. Provided you have met the residency requirements for living in Nevada for six weeks, you can file for divorce here even if your spouse lives in another state.
Discuss with your attorney the facts of your case, the steps necessary to give your spouse proper notice, and whether the court will have jurisdiction over your spouse and all the "incidents" of your marriage. Those are the subjects that come up in divorce, such as division of property, child custody, and spousal support. It is possible that a Nevada divorce court might have jurisdiction to grant the divorce, but not to affect property or require the payment of money from one party to another.
Your attorney can counsel you on whether it is possible to proceed with the divorce and warn you of the pitfalls of proceeding without proper jurisdiction over your spouse.
1.9 How can I divorce my spouse when I don't know where my spouse lives now?
Nevada law allows you to proceed with a divorce even if you do not know the current address of your spouse.
First, take action to attempt to locate your spouse. Contact family members, friends, former coworkers, or anyone else who might know your spouse's whereabouts. Utilize resources on the Internet that are designed to help locate people. This is known as "doing your due diligence."
Let your attorney know of the efforts you have made to attempt to find your spouse. Inform your lawyer of your spouse's last known address, as well as any work address or other address where he or she may be found. If your attorney attempts to give notice to your spouse under the procedural rules without success, it is possible to ask the court to proceed with the divorce by giving notice through publication in a newspaper, although this extends the time to finish the divorce by a few weeks.
While your divorce may be granted following service of notice by publication in a newspaper, you may not have jurisdiction over valuable assets such as pension plans unless it can be shown to the court that the "last matrimonial domicile" (where you last lived as husband and wife) was in Nevada. Talk to your attorney about your options and rights if you don't know where your spouse is living.
1.10 I just moved to a different county within the state of Nevada. Do I have to file in the county where my spouse lives?
You may file your divorce complaint either in the county where you reside or in the county where your spouse resides. But the case might be moved to the county where the defendant lives.
1.11 I immigrated to Nevada. Will my immigration status stop me from getting a divorce?
No. If you meet the residency requirements for divorce in Nevada, you can get a divorce here notwithstanding your immigration status.
If you are a woman and a victim of domestic violence, tell your lawyer. You may be eligible for a change in your immigration status under the federal Violence Against Women Act or other laws.
1.12 I want to get divorced in my Indian tribal court. What do I need to know?
Each tribal court has its own laws governing divorce. Requirements for residency, grounds for divorce, and the laws regarding property, alimony, and children can vary substantially from state law. Some tribes have very different laws governing the grounds for your divorce, removal of children from the home, and cohabitation. Even the divorce ceremony might be governed by tribal custom.
Contact an attorney who is knowledgeable about the law in your tribal court for legal advice on pursuing a divorce in tribal court or on the requirements for recording a divorce obtained in state court with the clerk of the tribal court.
1.13 Is there a waiting period for a divorce in Nevada?
No. Nevada has no mandatory waiting period. Once residency is established, an uncontested (both parties agree to all terms) divorce can be granted as quickly as a court can act on the paperwork. This can be as quick as a few days to a couple of weeks.
1.14 What is a divorce complaint?
A divorce complaint, also referred to as a complaint for divorce, is a document signed by the plaintiff, the person filing for divorce, and filed with the clerk of the court to initiate the divorce process. Referred to as a petition in some other states, the complaint sets forth in very general terms what the plaintiff is asking the court to order. An example follows.
(Continues...)
Excerpted from Divorce in Nevada by Marshal S. Willick. Copyright © 2014 Marshal S. Willick, Esq.. Excerpted by permission of Addicus Books, Inc..
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Table of Contents
Foreword vii
Acknowledgments ix
Introduction xi
1 Understanding the Divorce Process 1
2 Temporary and Final Court Orders 20
3 Coping with Stress during the Divorce Process 26
4 Working with an Attorney 36
5 Attorney's Fees and Costs 53
6 The Discovery Process 71
7 Negotiation, Mediation, and Settlement Conferences 81
8 Emergency: When You Fear Your Spouse 95
9 Child Custody 106
10 Child Support 133
11 Alimony 146
12 Division of Property 155
13 Benefits: Insurance, Retirement, and Pensions 176
14 Division of Debts 186
15 Taxes 194
16 Filing Papers and Going to Court 201
17 Appeals 215
In Closing 221
Resources 223
Glossary 231
Index 241
About the Author 255