Posted by DivorceLine in Nevada Divorce Procedures
Complete overview of Nevada divorce laws for people considering a Nevada divorce or filing a Nevada divorce with issues to be resolved about child custody, child support, visitation and alimony.
Nevada Divorce Residency Requirements
In order to file your Complaint for Divorce in Nevada, you must make sure the District Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Nevada residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:
Divorce from the bonds of matrimony may be obtained by verified complaint to the district court of any county: (a) In which the cause therefor accrued; (b) In which the defendant resides or may be found; (c) In which the plaintiff resides; (d) In which the parties last cohabited; or (e) If plaintiff resided 6 weeks in the State before suit was brought.
Unless the cause of action accrued within the county while the plaintiff and defendant were actually domiciled therein, no court has jurisdiction to grant a divorce unless either the plaintiff or defendant has been resident of the State for a period of not less than 6 weeks preceding the commencement of the action.
The divorce is typically filed with in county in which the filing spouse resides.
(Nevada Statutes – Chapter 125 – Sections: 020)
Since divorce is governed by state law, it is required that you meet specific residency requirements in order to file for a divorce in the state of Nevada. It is most common that people file for a divorce in the county in which they live. If you are unsure of whether or not you meet the Nevada residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.
Nevada Grounds for Divorce
The Complaint for Divorce is the initial document filed with the Nevada court. It is in the document that the filing spouse will request the court to terminate the marriage under certain specified grounds.
A divorce from the bonds of matrimony may be granted by the court for any of the following causes:
No Fault Based Grounds:
1. Living separate and apart for 1 year without cohabitation ; or 2. Incompatibility.
Fault Based Grounds:
Insanity which has existed for a period of at least 2 years. A witness may need to testify for this ground. (Nevada Statutes – Chapter 125 – Sections: 010)
Every divorce case that is filed in the state of Nevada must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.
Nevada Uncontested Divorce
This information is an overview of the uncontested Nevada divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Nevada.
To file for a divorce in Nevada, one of the spouses must have been a resident of the state at least six weeks before the filing. In Nevada, a divorce may be filed in the county where a) either spouse resides, b) where the spouses last lived together, c) where the cause of the divorce happened, or d) where the plaintiff lived six weeks prior to the filing.
Grounds for divorce are No-Fault, which means 1) incompatibility, or 2) living separate and apart without cohabitation for a year, and general, which means insanity that existed for at least two years before the filing.
Actions are filed in the District Court of the county. The filing spouse is called the Plaintiff; the responding spouse is called the Defendant.
Legal separations are granted on the same grounds as divorce, or when a spouse has been deserted for 90 days. There is no residency requirement for this.
Nevada offers two routes to a summary divorce. One is begun when the spouses file a joint petition, under oath, as well as an Affidavit of Corroboration of Residency by a witness. This is an uncontested action. Following this route, a summary divorce may be granted when these conditions are met:
a) Either spouse has been a resident of Nevada for six weeks;
b) The spouses are incompatible and have lived separate and apart without cohabitation for a year;
c) There are no minor children and the wife is not pregnant, or the couple have negotiated an agreement about custody and support for any such children;
d) There is no community property, or the couple have negotiated an agreement regarding the division of assets and the distribution of liabilities, “and have signed any deeds, titles, or other evidences of transfer of property”;
e) Both spouses waive their right to support, or have negotiated an agreement stipulating the amount of such payment;
f) Both spouses waive: 1) the right of notice of entry of the final decree of divorce; 2) their rights to appeal the divorce; 3) their rights to request findings of fact and conclusions of law at a divorce hearing; 4) their rights to a new trial;
g) Both spouses want the court to enter the divorce.
In this regime, the couple file a notarized Joint Petition for Summary Decree of Divorce with Children or a notarized Joint Petition for Summary Decree of Divorce without Children, depending upon the situation, and a notarized Affidavit of Resident Witness, which authenticates the residency of the party.
Nevada also provides for a summary default divorce by affidavit. In this routine, any marital settlement is attached to the affidavit when it is filed. The affidavit states the following:
a) That the residency requirements have been met;
b) That all the information in the affidavit is “correct and true” on the personal knowledge of the affiant;
c) That the affidavit contains only facts which would be admissible;
d) That there are facts to support every allegation in the affidavit;`
e) That the person signing the affidavit is competent.
In addition, each of routes also requires the following forms:
1) A Civil Cover Sheet, which identifies the parties and the type of action;
2) A Verification of Pleadings, which authenticate the claims;
3) A Request for Submission, which routes the action;
4) An Affidavit of Residency, which authenticates that the parties meet the residency requirement.
If the couple do not file jointly, the Plaintiff must file a verified Complaint for Divorce (with Children) or a verified Complaint for Divorce (No Children), depending upon the situation. This must be served upon the Defendant, either personally or by publication, when he or she cannot be located or will not accept service, or by mailing.
Depending upon the circumstances, the Plaintiff may also file a Joint Preliminary Injunction, which enjoins the parties from dissipating marital assets, harassing each other, and in the case of marriages with children, from removing these minors from Nevada.
If there are children, the Plaintiff may also file a Motion for Temporary Custody, Temporary Child Support and Appointment of a Casa.
If the Defendant lives in Nevada, the Summons and Complaint must be served personally in one of four ways:
1) Direct delivery to the defendant;
2) Delivery at his or her residence with someone of suitable age and discretion who also resides there;
3) Delivery to an authorized agent, which as the Defendant’s attorney, who in turn signs an Acceptance of Service, which verifies that the delivery happened;
4) Delivery by a sheriff/constable of the county where the Defendant is found and/or any citizen of the United States who is over 18 and not an interested party in the action.
In any event, after the divorce papers have been delivered, an Affidavit of Service must be completed, proving that the Defendent was properly served.
If the Defendant cannot be located, the Plaintiff may petition the court to permit Service by Publication, which means that the Summons and Complaint are published in a newspaper designated by the court and proof of publication is submitted to the court.
The Defendant then has 20 days to file one of these three forms, depending upon the situation:
a) An Answer to Complaint for Divorce (no Counterclaim), in which the Defendant admits and/or denies allegations in the Complaint;
b) An Answer to the Complaint for Divorce and Counterclaim (With Children), in which the Defendant admits and/or denies allegations in the Complaint and makes any counterclaims about the action; or if there are no children;
c) An Answer to Complaint for Divorce and Counterclaim (With No Children), in which the Defendant admits and/or denies allegations in the Complaint and makes any counterclaims about the action;
An uncontested divorce may result if the Defendant agrees to all of the allegations made in the Complaint. If the Defendant does not file an Answer within the time period, the Plaintiff may file a Motion and Order for a Default, by which the court grants the Plaintiff everything he or she asks for.
An Answer to the Complaint in any one of these three forms must be filed in 20 days, either personally or by mail. When a Defendant files an Answer to the Complaint for Divorce and Counterclaim, he or she may be preparing for trial, which means a contested divorce.
If the Defendant fails to file an Answer within 20 days, the Plaintiff may win a default judgment against him or her. If the Plaintiff fails to answer a counterclaim within 20 days, the Defendant may win a default judgment against him or her.
When there is no Counterclaim, the Plaintiff or Defendant, depending upon the situation, may then file Request for Summary Disposition for Decree of Divorce and an Affidavit in Support for Summary Deposition. The action does not require a hearing.
If a counterclaim is filed, the action moves to mediation and a hearing. The Plaintiff then must file one these forms, depending upon his or her situation:
a) A Decree of Divorce (with Children) or
b) A Decree of Divorce (no Children).
In divorces where there are minor children, the spouses must also each submit proof of appearance of attendance at a TransParenting class for each parent listed on a Child Support and Welfare Party Identification Sheet.
Nevada Simplified Divorce Procedures
There are 2 provisions for summary divorce in Nevada. First, a summary divorce may be granted if the following conditions are met: (1) either spouse has been a resident of the state for at least 6 weeks; (2) the spouses are incompatible or have lived separate and apart without cohabitation for 1 year; (3) there are no minor children (born or adopted) and the wife is not pregnant, or the spouses have signed an agreement specifying the custody and support of the children; (4) there is no community or joint property, or the spouses have signed an agreement regarding the division of their property and the assumption of their liabilities, and have signed any deeds, titles, or other evidences of transfer of property; (5) both spouses waive their rights to spousal support [maintenance] or the spouses have signed an agreement specifying the amount of spousal support; (6) both spouses waive: [a] their rights to notice of entry of the final decree of divorce; [b] their rights to appeal the divorce; [c] their rights to request findings of fact and conclusions of law in the divorce proceeding; and [d] their rights to a new trial; and (7) both spouses want the court to enter the decree of divorce. A Summary Proceeding for Divorce is begun by filing a joint petition, signed under oath, together with an Affidavit of Corroboration of Residency by a witness.
In addition, a spouse may apply for a divorce by default by affidavit. In such situations, oral testimony will not normally be required. If there is a marital settlement agreement, it should be identified in the affidavit and attached to it when filed. The affidavit should: (1) state that the residency requirements have been met; (2) state that all of the information in the petition is correct and true on the personal knowledge of the person signing the affidavit; (3) state that the affidavit contains only facts that would be admissible into evidence; (4) give factual support for each allegation in the application; and (5) establish that the person signing the affidavit is competent to testify.
Each divorce filed must also contain a Civil Cover sheet, a Verification of Pleadings, a Request for Submission, and an Affidavit of Residency. Finally, there are specific provisions authorizing separation agreements and marital settlement agreements.
[Nevada Revised Statutes; Chapter 123, Sections 020 and 090 and Chapter 125; Sections 181 to 184].
Each state has its own unique filing procedure. When filing for divorce in Nevada, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory divorce documents to the county court. You will discover that some documents may be provided by the Nevada Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the Nevada Laws and the filing requirements.
Nevada Property Division Factors
In Nevada, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the District Court within the Decree of Divorce.
Nevada is considered a “Community Property” state. Community property is defined as all property and debt that was acquired from the date of marriage until the marital cut-off date. The community assets will be split equally by the District Court if the spouses are unable to reach an agreement.
Any property held in joint tenancy (community property) will be divided upon divorce if the parties cannot agree. If a party has made a contribution of separate property to the acquisition or improvement of property held in joint tenancy, the court may provide for the reimbursement of that party for his or her contribution. The amount of reimbursement must not exceed the amount of the contribution of separate property that can be traced to the acquisition or improvement of property held in joint tenancy, without interest or any adjustment because of an increase in the value of the property held in joint tenancy. The amount of reimbursement must not exceed the value, at the time of the disposition, of the property held in joint tenancy for which the contribution of separate property was made.
In determining whether to provide for the reimbursement, in whole or in part, of a party who has contributed separate property, the court shall consider: (1) The intention of the parties in placing the property in joint tenancy; (2) The length of the marriage; and (3) Any other factor which the court deems relevant in making a just and equitable disposition of that property.
(Nevada Statutes – Chapter 125 – Sections: 150)
Since Nevada is a “Community Property” state, all marital property will be divided in a 50-50 fashion according to the court unless agreed to otherwise by the divorcing spouses. This means that everything that is considered “up for grabs” in the divorce will be distributed equally to each spouse. Obviously this does not entail splitting a car in half so to speak, but rather each spouse will be rewarded with assets of equal value.
Nevada Spousal Support/Maintenance/Alimony Factors
In Nevada the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the District Court will order support from one spouse to the other on a case-by-case basis as follows:
When determining an appropriate support award the court shall consider the following factors; 1. The respective merits of the spouses; 2. the post divorce financial condition of each spouse; 3. which spouse actually acquired the property being used for support; 4. and the need to grant alimony to a spouse for the purpose of obtaining training or education relating to a job, career or profession.
Furthermore, the court may also consider: (a) Whether the spouse who would pay such alimony has obtained greater job skills or education during the marriage; and (b) Whether the spouse who would receive such alimony provided financial support while the other spouse obtained job skills or education.
(Nevada Statutes – Chapter 125 – Sections: 150)
Nevada Child Custody Factors
In Nevada, the sole consideration of the court is the best interest of the child. When determining the best custody award to order, the court shall consider, but not limited to:
a) The wishes of the child if the child is of sufficient age and capacity to form an intelligent preference as to his custody;
b) Any nomination by a parent or a guardian for the child; and
c) Whether either parent or any other person seeking custody has engaged in an act of domestic violence. (Nevada Statutes – Chapter 125 – Sections: 480, 490)
In Nevada, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.
Nevada Child Support Factors
Temporary (during the divorce proceeding) and permanent child support may be granted. There are official Child Support percentages contained in Nevada Revised Statutes; Chapter 125B, Section 070. There are changes to the guidelines which are due to take effect on July 1, 2002. These guidelines are presumed to be correct unless there is a showing that the needs of the child would not be met under the particular circumstances in a case. Factors for deviation from the guideline percentages are: (1) the cost of health insurance; (2) the cost of childcare; (3) any special educational needs of the child; (4) the age of the child; (5) the responsibility of the parents for the support of others; (6) the value of services contributed by the parents; (7) any public aid paid to the child; (8) any pregnancy expenses; (9) any visitation travel expenses; (10) the amount of time the child spends with each parent; (11) the relative income of each parent; and (12) any other necessary expenses.
[Nevada Revised Statutes; Chapter 125, Section 230 and Chapter 125B, Section 070, 080, and 090].
Nevada child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Nevada child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Nevada child support deviation factors that may be applicable to the situation.
Nevada Grandparent’s Rights
Grandparent Rights to Visitation: If child’s parents are separated or divorced or if one parent is deceased or has relinquished his parental rights or had them terminated, the grandparents and great-grandparents may get visitation if in the best interest of the child. The statute lists specific factors which are to be considered in determining the best interest of the child. Chapter 125A, Section 125A.300 (N.R.S.A. 125A.300).
When Adoption Occurs: Grandparents can get visitation with a grandchild placed for adoption if the petition for visitation is filed with the court before the date on which the parental rights have been terminated and if the court finds that the visitation would be in the best interest of the child.
Child Custody Statutes: Best interest of the child considering: (1) which party is more likely to allow frequent association and a continuing relationship with the other party; (2) wishes of the child, if of sufficient age and intelligence; (3) “any nomination by a parent of a guardian for the child and (4) whether either party has engaged in act of domestic violence against the child, the other party, or other person residing with the child. N.R.S.A. §125.480. See N.R.S.A. §125.510 for required language in decree relating to custody. N.R.S.A. 125.450 et seq.
Parents May Choose: Yes
Nevada Military Divorce Laws
A Nevada military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.
Military Protection From Nevada Divorce Proceedings
There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.
Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Nevada court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.
Serving an Active Military Spouse
The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Nevada court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.
Residency and Filing Requirements:
The typical military divorce filing requirements are as follows:
a) You or your spouse must reside in Nevada
b) You or your spouse must be stationed in Nevada
Grounds for Nevada Military Divorce
The grounds for a military divorce in Nevada are the same as a civilian divorce.
Dividing the Property
Along with the normal Nevada property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.
The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.
Child Support and Spousal Support
In Nevada, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Nevada child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.
Nevada Child Support Guidelines
The Nevada child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Nevada child support order.
Nevada Child Support Guidelines
Income Share Model *: NO
Percent of Income Model *: YES
Worksheets Available: YES
Extraordinary Medical Expenses Add on: YES
Childcare Add on: NO
Secondary Education Support: NO
UIFSA: YES
* Percent of Income Model: Nevada utilizes the percentage of income formula which determines the amount of child support as a percentage of the income of the parent obligated to pay the child support. This percentage is determined by factoring the number of children requiring support. This is the most basic or primitive method for calculating support. Many people believe that it does not take into consideration many important details, which makes this model of support calculation the least exact.
Nevada Child Support Definitions
Establishing Child support in Nevada
1. A court of this state shall apply the appropriate formula.
(a) Determine the required support in any case involving the support of children.
(b) Any request filed after July 1, 1987, to change the amount of the required support of children.
2. If the parties agree as to the amount of support required, the parties shall certify that the amount of support is consistent with the appropriate formula. If the amount of support deviates from the formula, the parties must stipulate sufficient facts in accordance with subsection 9 which justify the deviation to the court, and the court shall make a written finding thereon. Any inaccuracy or falsification of financial information which results in an inappropriate award of support is grounds for a motion to modify or adjust the award.
3. If the parties disagree as to the amount of the gross monthly income of either party, the court shall determine the amount and may direct either party to furnish financial information or other records, including income tax returns for the preceding 3 years. Once a court has established an obligation for support by reference to a formula set forth in paragraph (b) of subsection 1 of NRS 125B.070, any subsequent modification or adjustment of that support, except for any modification or adjustment made pursuant to NRS 425.450 or as a result of a review conducted pursuant to subsection 1 of NRS 125B.145, must be based upon changed circumstances.
4. Notwithstanding the formulas set forth in paragraph (b) of subsection 1 of NRS 125B.070, the minimum amount of support that may be awarded by a court in any case is $100 per month per child, unless the court makes a written finding that the obligor is unable to pay the minimum amount. Willful underemployment or unemployment is not a sufficient cause to deviate from the awarding of at least the minimum amount.
5. It is presumed that the basic needs of a child are met by the formulas set forth in paragraph (b) of subsection 1 of NRS 125B.070. This presumption may be rebutted by evidence proving that the needs of a particular child are not met by the applicable formula.
6. If the amount of the awarded support for a child is greater or less than the amount which would be established under the applicable formula, the court shall:
a) Set forth findings of fact as to the basis for the deviation from the formula; and
b) Provide in the findings of fact the amount of support that would have been established under the applicable formula.
7. Expenses for health care which are not reimbursed, including expenses for medical, surgical, dental, orthodontic and optical expenses, must be borne equally by both parents in the absence of extraordinary
circumstances.
8. If a parent who has an obligation for support is willfully underemployed or unemployed to avoid an obligation for support of a child, that obligation must be based upon the parent’s true potential earning capacity.
9. The court shall consider the following factors when adjusting the amount of support of a child upon specific findings of fact:
a) The cost of health insurance;
b) The cost of child care;
c) Any special educational needs of the child;
d) The age of the child;
e) The responsibility of the parents for the support of others;
f) The value of services contributed by either parent;
g) Any public assistance paid to support the child;
h) Any expenses reasonably related to the mother’s pregnancy and confinement;
i) The cost of transportation of the child to and from visitation if the custodial parent moved with the child
from the jurisdiction of the court which ordered the support and the noncustodial parent remained;
j) The amount of time the child spends with each parent;
k) Any other necessary expenses for the benefit of the child; and
l) The relative income of both parents.
Nevada Divorce Definitions
This collection of definitions will help clarify some unique characteristics to the Nevada Divorce laws, process and paperwork which is filed with the court.
Filing Party Title:
Petitioner or Co-Petitioner
The spouse who will initiate the Divorce by filing the required paperwork with the court.
Non-Filing Party Title:
Respondent or Co-Petitioner
The spouse who does not initiate the Divorce with the court.
Court Name:
In the District Court for _____________ County, Nevada
The proper name of the court in which a Divorce is filed in the state of Nevada. Each jurisdictional court typically has a domestic relations or a family law department or division.
The state run office devoted to enforcing existing child support orders and collecting any past due child support.
Document Introduction:
In the Matter of the Petition of:
The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.
Initial Divorce Document:
Joint Petition for Summary Decree of Divorce or Joint Petition for Decree of Divorce
The title and name of the legal document that will initiate the Nevada Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.
Final Divorce Document:
Decree of Divorce
The title and name of the legal document that will finalize the Nevada Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.
Clerk’s Office Name:
District Clerk’s Office
The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.
Legal Separation:
If a spouse has any of the grounds for divorce or if he or she has been deserted for over 90 days, a suit for separate maintenance of himself or herself and any children may be filed. In addition, the spouses may agree to an immediate separation and make appropriate provisions for spousal and child support. There is no residency requirement specified in the statute. [Nevada Revised Statutes; Chapter 125, Section 190].
Property Distribution:
Community Property
The applicable Nevada law that will dictate how property and debt is to be divided upon Divorce.
