FAMILY LAW FAQ'S
What is the difference between a legal separation and a divorce?
When continuing a marriage is no longer possible, there are three ways a couple can end the relationship in Nevada: Divorce, Legal Separation, and merely doing nothing but living apart. This is true whether you live in Las Vegas, Henderson, Summerlin, or anywhere else in the state. As doing nothing to settle matters between parties almost always results in some difficult legal issues down the road, it is probably the worst way to approach the future. Instead, careful consideration of the various paths should be taken. The couple should decide whether to divorce or legally separate.
Legal separation (formally called “separate maintenance”) does not actually terminate the marriage relationship and should be considered when the couple believes a brief time apart can help the parties gain perspective and then try to reconcile. It is occasionally used when the parties decide they need to continue the marital relationship for practical reasons but no longer intend to continue the personal relationship—for example, to continue health insurance coverage for a spouse. Of course, during a period of legal separation, a subsequent marriage is not available. Legal separation typically mirrors a divorce case in that a well-crafted Decree of Separate Maintenance will do everything a divorce case does, except it does not terminate the marriage relationship. If reconciliation is not possible, then divorce is available.
How do I know which State to file a divorce?
he first thing that the court must consider is whether it can hear the case at all—called “jurisdiction.” In simple divorce cases where minor children are not involved, all that is required for the court to have jurisdiction is that one of the parties has lived in the State of Nevada for at least 6 weeks prior to filing for divorce with the intent to remain for an indefinite period. The court is said to have “personal jurisdiction” over this party. The court may terminate the marriage with or without the other party’s participation, provided that person was properly served with the appropriate complaint. In order for the court to deal with the parties’ property, the court must also have “in rem jurisdiction” or “jurisdiction over the property” which it gains by the mere fact that the property lies within Nevada. The court cannot dispense with property that lies outside the boundaries of Nevada unless both parties “submit to the jurisdiction” of the court, typically by delivering the complaint to the other party in person within Nevada, or by the other party filing an “answer” to the complaint.
Uniform Child Custody Jurisdiction and Enforcement Act
- In cases where minor children are involved, the court must consider its jurisdiction over the children. Child jurisdiction is governed by what is known as the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA. The UCCJEA is a “model code” drafted by an independent organization, but it is adopted as law in NRS 125A. Jurisdiction under the UCCJEA is complex, but is simplified here for clarity. Simply put, Nevada law breaks down child jurisdiction into four tiers, the lower tiers taking control only if the higher tier does not apply: “Home State” Jurisdiction. Home State Jurisdiction applies when a child has lived in the state for the last 6-month block of time (or since birth if the child is less than 6 months old and was born in Nevada). For example, if a child has lived in Nevada for the 6 months immediately preceding the filing for divorce, Nevada has Home State Jurisdiction. But if the child lived in a different state for six months, then lived in Nevada for only two months, the prior state will retain its Home State Jurisdiction. (There are some exceptions to this rule. See the expanded explanation of Child Jurisdiction. NRS 125A.305.)
- Significant Connection. If no state has Home State Jurisdiction, then a court can take jurisdiction over the child if (1) the child and the child’s parents (or the child and at least one parent) has a significant connection with Nevada, and (2) the bulk of the evidence regarding the child’s care, protection, education and relationships are within Nevada. So, for example, if a child had moved from another state before that state took Home State Jurisdiction (and no other state had obtained it), but they had not yet resided in Nevada for 6 months, then the court can consider factors such as whether the child had enrolled in school, developed relationships with others, etc., in determining whether it should take jurisdiction over the child.
- More Appropriate Forum. If no state has Home State Jurisdiction, and the court cannot find that the child has a particularly significant set of connections with Nevada, then the court can consider whether Nevada, or any other state, is the most appropriate forum. This is similar to the Significant Connection consideration, and this usually comes into play when other courts are considering whether they, or Nevada, should take jurisdiction over the child.
- As a last resort, a court can take jurisdiction if it determines that no other state could possibly take jurisdiction over the prior 3 scenarios.
The most powerful—and most common—form of jurisdiction is that of the Home State variety. Once established, and once a court with Home StateJurisdiction decides custody, then that state retains “exclusive” jurisdiction over the child until the child turns 18 years of age (or 19 years if still in high school upon turning 18), all parties leave the State for another state, or the child leaves for another state and remains there for 6 months with the original state relinquishing custody to the new state. (If this is hard to follow, don’t worry. Attorneys and courts get confused too. This is one area where having a Las Vegas and Henderson family law attorney from Pickard Parry Pfau help you is of paramount importance.)
So, once the court determines it has jurisdiction over the parties and property, the next item of business is to establish whether there are children of the marriage, and then to establish the custody orders. (If there are no minor children of the marriage, the court skips down to Property Distribution.)
What are grounds for divorce is Nevada?
Typically, when a marriage fails, it fails for a variety of reasons, and usually with the participation of both spouses. Recognizing that a failed marriage is most often preceded by the failure of the parties to meet each other’s expectations, Nevada law dispenses with a debate of who is at fault. Instead, the Nevada legislature has set up three basic “grounds” or “causes” for divorce (NRS 125.010):
- Insanity existing for 2 years prior to the commencement of the action
- When the husband and wife have lived separate and apart for 1 year without cohabitation; and
Although these simple grounds make divorce a fairly straight forward proposition, it does not mean that divorces are simple or particularly quick. Other factors, principally the presence of children, self-employment, and other case-specific facts can complicate the process. As a result, the courts will break down adivorce into its basic components, which it takes in order: Jurisdiction, Custody of Minor Children, Child Support, Property Distribution, and Alimony. Regardless of whether a divorce is “uncontested” or “contested,” the court will work through the steps outlined below.
How is child custody