Nevada Family Law Source

Strange Tax Credits

2010-05-24T10:39:00.000-07:00

When we wanted to stoke the auto industry market, a tax credit became available for people purchasing a new car between February and December 2009.

When we wanted to stoke hiring employees, a tax credit became available to employers for hiring someone who was previously unemployed.

When we wanted to stoke home sales, a tax credit became available for people purchasing homes.

Tucked down inside the gigantic health care bill, there is now a tax credit of up to $13000 for foreign or domestic adoptions. What exactly are we stoking with that? Is adoption really an impulse item that we decide we have additional funds laying around and we can get a tax break for?

8 ways to avoid divorce disaster

2009-12-05T00:14:00.000-08:00

Avoid divorce devastation:

Settle out of court. - Make a list of all of your assets, bills and potential expenses. Go through the list yourself and highlight in one color all assets, bills and expenses that you are willing to take. Go to an attorney only if there is a discrepancy of what your decisions are where the cost of the asset you are not willing to agree on exceeds the price that you each will spend for an attorney. (Estimate $1500 each for the attorneys and realize that one spouse will end up with the asset and pay 1500 while the other has no asset and pays 1500. Make a good business decision.

Take the emotions out of it. There is NO reason to discuss blame or anger when you have both decided to end the marriage. The approach to your prior spouse should be the same as to your insurance agent.

Bone up on financial matters. If you don't know what you have (i.e. you didn't keep the bills or budget) then you may have to do a bit of detective work to cover yourself. Even if you miss some things, the papers can be drawn up which instructs what happens to those "forgotten assets and liabilities.

Deal with debt strategically. Focus on allotting the liabilities to the person who is on the debt and/or the person who will be affected if a debt isn't paid. (i.e. the person that gets the house must pay the mortgage)

Check financial statements. Find out if there are tax penalties for early withdrawals. Save addresses for contacting companies to change beneficiaries.

Alimony vs. child support - child support is state regulated and general has a formula. Alimony is typically required by someone losing in a trial. If you seek to settle then understand that alimony is generally a long shot even if you spent the money to try the case. If you pay any alimony voluntary it should be considered as a gift.

Revise lifestyle budget. - While the psychic threshold might well be better off without a stressful divorce it can still stress your wallet. The costs of moving, replacing items, new deposits for utilities, deciding to rent or own and household good accumulation isn't cheap.

Don't forget retirement. If you have a retirement plan then the Court can consider it to be partly your spouses. It needs to be considered and if a QDRO is recorded to separate the funds between divorcing persons then a professional should be employed

DIVORCE PARTY

2009-12-02T14:42:00.000-08:00

As an attorney, I am not often surprised anymore by much of what extent people will go to just to prove a point but today, this one did catch me off guard. Apparently it is now en vogue to have a party when your divorce is final. The coffin pictures is one of many products that can be purchased which will allow you to take your marriage license and your wedding band and give it a proper burial. The psychological advantages are obvious but I am not sure about the ettiquette. Apparently most women who throw the party will invite other divorced friends and make a movie night out of it to watch man-bashing type movies. Not surprisingly, the divorced men throw parties involving both genders and celebrate a "coming out" of sorts announcing their eligibility. Either way, it strikes me as a little odd if children are involved that you would make such a festive event out of saying "I Don't" but I hear a lot of weird stories as an attorney so who can judge....

Boyfriend gets the Guy's Wife and His Money

2009-11-26T15:57:00.000-08:00

The New York Times printed in their magazine last Sunday, an article on men who are deceived into believing that children are their biological children and later find out that they aren't. The Times Magazine went through in excruciating detail what happens when a woman cheats and has a child of her imposter boyfriend while shes married then divorces her husband and marries the boyfriend. The woman's ex-husband ended up paying child support for the cheating boyfriend (now husband and Daddy) ended up getting subsidized by the "innocent" ex-husband's child support to his (non-biological) daughter. The Times paints the picture of the ex-husband as monumentally unfair. The Courts have held that its better to have someone be the father than no one. If the Court didn't hold someone responsible then the state welfare system would have to pick up the dime. The case that was cited was extreme and the details made it sound horrendous. I would agree that the result in that case seems outrageous (cheating boyfriend wins out overall) but it certainly isn't absurd on the whole. It has been estimated that up to 30% of men pay child support for children who aren't biologically theirs. If you sign the birth certificate or are married to the mother when the child is born, the Court ASSUMES you are the father. Strange but true and might I add... EXPENSIVE whether you fight it or not. NY Times Article

The Loose Threads of Divorce

2009-10-19T09:39:00.000-07:00

The divorce is complete, the papers have been signed and you are embarking on a new part of your life. You are leaving your ex-spouse behind you, or are you?

Often overlooked in the paperwork, emotional difficulties and other aspects of divorce is how your divorce impacts your estate planning. However, with a few steps you can ensure that your wishes are respected.

First, you need to verify, and change if necessary, the beneficiary of your life insurance. The beneficiary is the person who receives the pay out of your life insurance policy. Often times the beneficiary is your ex-spouse and unless you affirmatively change the beneficiary with each life insurance policy, the insurance company will pay your ex-spouse. Your divorce decree does NOT make this change. Don’t forget any life insurance policies paid for by your employer. This change is relatively simple to do; contact your life insurance agent as well as your HR Department for further assistance.

This would also be a good time to re-evaluate or even create your will. This is particularly important if your divorce involved a child custody decree. Your will must reflect the child custody arrangements made in your divorce. You may also wish to review your assignment of any family heirlooms or other items of value to insure they do not go to anyone you a longer wish to receive such items. Any family law attorney in our firm can assist you with these changes and review your existing estate planning to insure that your wishes are respected and provided for.

$600,000 in Child Support Collected from Casino Winnings at the Cage

2009-10-18T07:23:00.000-07:00

Colorado gambling law garnished $600,000 from the casino winnings of deadbeat parents for back child support last week. If you have money to gamble, shouldn't you have money to support your children? With all of the casinos cropping up across the United States there may be an avenue for recovery for creditors in general through writs of garnishment on casinos. Any transaction over $1000 paid out requires that a winner must sign and file a tax form thus letting the casinos know the identity and reviewing a state issued ID of the winner. An interesting thought and one that as a lawyer in Las Vegas, I can't wait to try. Hide those Players Cards, deadbeat parents.... we're coming to get you.

Read the entire story at Article in the Denver Post

"THE LAND OF THE FREEEEEEEE AND THE HOME OF THE....."

2009-10-17T06:52:00.000-07:00

I am writing this this morning mostly because I am emotionally moved by this particular case and not because it is especially "legally" significant because with any hope it won't be repeated and it isn't standard practice. I should start at the beginning.... I was reading an essay last week on the writer of the "Star Spangled Banner" who we all learned about in elementary school as a great man by the name of Frances Scott Key. The thing that they didn't teach us is that the same man who wrote the words, "The Land of the Free and the Home of the Brave" was a slave owner in Frederick, Maryland.

That song was created in 1814 and as with all history, I try to view the hypocrisy of Mr.Key within the time period and environment that he lived in and so as much as it irritates me to hear the Star Spangled Banner with the knowledge of its writer, I respect it as our anthem.

What I don't respect is what was found in a small article on the bottom of page A9 of the New York Times today and what was barely mentioned on the cable news. A Justice of the Peace, Keith Bardwell, who forbid the marriage of Beth Humphrey, a white woman and Terence McKay, who is black, in the State of Louisiana this week in 2009. Further disturbing was that this "allegedly" learned man and justice of the peace stated his reasoning as "There is a problem with both groups accepting a child from such a marriage. I think that those children suffer, and I won't help put them through it."

For those of you reading this who may need legal backup, it has been ILLEGAL to not allow interracial marriage since 1967. Loving v. Virginia, 388 U.S. 1 (1967), was a landmark civil rights case in which the United States Supreme Court, by a 9-0 vote, declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby overturning Pace v. Alabama (1883) and ending all race-based legal restrictions on marriage in the United States.

The Tangipahoa Parish where Bardwell is a Justice of the Peace is a parish of just over 100,000 that was 70% white and 29% black in 2009. Justice of the Peace Bardwell was born in 1956 and was 12 years old when the Loving decision changed the status of blacks and whites in marriage in Louisiana. He has been a Justice of the Peace since 1975 and began as an elected Democrat and then changed parties to the Republican party in 2004. By doing simple math, we arrive at the fact that Mr.Bardwell became a justice of the peace at age 21. He is a high school graduate and by trade, he is a cabinet maker aside from his political career.

Allow me to assure you that I am not an elitest and that I do not think or believe that all Justices of the Peace or Judges must have went to law school. In all honesty, I went to law school with some people who I am fearful for those that they represent. There are some far smarter people than just the ones who managed to get through a graduate program just as there are some wonderful midwives who are far superior to obstetricians. But this case in particular is sad....

I find it sad commentary on the United States when we have finally elected a black President, we have finally found marriage possibilities (still struggling but closer) for homosexual couples, and yet this type of inexcusable ignorance or, worse yet, lack of adherence by the government, encourages a divide between citizens of the United States.

How does this story make only a snippet on the bottom of page 9A in a major newspaper and why is the Governor Bobby Jindal not yelling louder to protect the image of what this does to race relations in his state.

50/50 Parents - Wanna go halfsies?

2009-10-13T16:32:00.000-07:00

50/50 has now changed to 60/40, the oddsmakers in Vegas are even confused. In the original decision of Rivero v Rivero that was in the Nevada Supreme Court, the Court had decided that child support should be based on the percentage of time that each parent spent with the child. Attorneys aren't typically math scholars but this decision required a calculator even by the brainiest of the judicial set.

The decision as originally decided required that we figure out whether Junior (our imaginary reference child) was with Mom 20%, 30% or 70% of the time and as a result what percentage of time did Junior spend with Dad. Child support was then based on a decision made by disparity of income, child support percentages, and finally multiplied by the amount of time each parent spent with the child to arrive at a positive number of who owes whom.

The new law says, after the Court reheard the Rivero case, that 50/50 and 60/40 are the same but here's the kicker. 146 days is the magical number. In order to have joint custody, you must supervise the child for some duration of time during that day for 146 days of the year. Otherwise, it isn't joint custody. If it isn't joint custody then we revert back to the child support laws of Wright which were closer to the straight out formula type that most people can multiply and understand. If it is joint custody then we look to the Wright case which requires that we still review the difference between the incomes of the parents and we multiply by the percentages in the charts.

If there is a primary custodian and visitation for the other parent then we follow the Barbagallo case and just multiply the income vs. the percentage. (According some regard, of course, to the other potential issues available in NRS 125B.)

The Rivero decision makes several other nuance changes but this one is pretty fascinating. 146 days makes a full "part-time" parent

When Being #1 Isn't A Good Thing

2009-09-24T16:12:00.001-07:00

Well, my beautiful home state has earned another distinction. Is it 'Most Healthy' state? No. Is it 'Most Scenic' state? Sadly, no. Is it 'Most Friendly' state? Alas, no again.

According to the US Census Bureau, Nevada now has the highest divorce rate of any state in the country. Last year, 14.2% of marriages ended in failure. That number, of course, is just a bare number and can hardly touch upon the devastation: depression, financial ruin, angst suffered by the children, self-esteem issues, the fallout of divorce is enormous.

To some, this statistic is hardly shocking. Nevada has long been the state to come if you are seeking a quickie-divorce, partly due to our somewhat liberal residency requirement. Experts say that our high numbers are attributable to alcohol, gambling, brothels, strip clubs and the temptation those things create.

But other states have those temptations too. New Jersey, for example. You've seen the Sopranos. In some towns, there are Bada-Bings every mile! And gambling? Well, I come back to New Jersey again, and even stately Connecticut has its Indian casinos.

What happened to strong marriages where peoples' love and respect for one another rise above temptation? Is that an out-dated concept? After all, you don't trip and fall into a strip club or a brothel...you make a conscious decision to point your car in that direction and drive there.

I don't have a definitive answer on how to curb the divorce rate and make more marriages last. I would just like it if, not too many years from now, Nevada became the 'Most Happily Married Couples' state.

On FIRE

2009-09-23T16:23:00.000-07:00

All parents have done it. You look at the nice candle you got for a holiday or that you had "pre-baby" and you think... I should move that and then you stand up a little straighter and pull back your shoulders and think... I will simply TEACH the baby that it is NOT to touch the candle and not to start fires.
It might be a good concept but in the State of Nevada, parents are responsible for any damages caused by a child if they knew or should have known that the child might have committed it. Whats that mean? If your kid did it once (name it... started a fire, pushed down another kid, kicked a dog, broke something in a neighbors yard) then the second time that it happens.... You are responsible for any damages they cause under Nevada law. If you aren't a strict discliplinarian then watch out, your child's impulse control could cost you a lot.

'Til Death Do Us Part....and Then What??

2009-09-21T09:37:00.000-07:00

I had my very first flying lesson on Saturday. As if that wasn't nerve-wracking enough in itself, my husband is my instructor. It's not that he's a bad instructor...quite the opposite, he's EXECELLENT!! Thus far I had strongly resisted having both my husband and I in the same plane while our son waits expectantly in the flight-school lunchroom. After all, should the unthinkable happen and we meet our demise, what would happen to our son? In whose care would he be placed? Who would raise him? Would all my desires and instructions for his care and upbringing be carried out?

Before going up for my first lesson, my husband and I decided the time was right for us to do what we'd been dreading...make a will and a trust for the benefit of the most important person in our lives besides eachother---our son.

Even if you are pretty sure who would "get" your children if you passed unexpectedly, it is always to your benefit to put it in writing with some form of estate planning document. After all, as with my large nutty but wonderful close-knit Italian family, you may have many different relatives who would be clamoring to take the children---isn't it lucky to be so loved by so many? But fights over custody can be NASTY, to say the least, and that nastiness can infect the extended family as well. Don't leave it to your grief-stricken relatives who would have to deal with losing you. Put your desires in writing AFTER, of course, discussing this monumental decision with the person(s) to whom you will be entrusting your precious babies.

Even if your family is not large and not close, widen your scope to consider close friends. It is always better to leave instructions designating a specific person(s) to care for your children. You do not want your children relegated to the cold, labrynthine foster care system. That should be the absolute last resort for a child who finds himself in the devastating situation of having lost both his parents.

And be specific about what you wish for your children. For example, not only did we leave our son to the care and custody of my sister and her husband, we also left strict instructions that he is not to be given a car until he is 18, and then only if he is working and going to school. We also left instructions that my son's religious studies are to continue.

And of course, very little candy and NO soda. Hey, my rules are my rules.

Split Peas - Parting as Friends (or at least don't hate each other)

2009-09-14T11:07:00.000-07:00

As a vegan, nutrition is very important in my diet and split peas are one of my favorite add ins. Comforting, warm and inviting, split pea soup with a slice of fresh bread is one of the weekly meals that I love.

Full of soluble fiber, peas help to bind up cholesterol-containing bile and move it out of your body. Split peas stabilize your blood sugar levels while providing a steady supply of energy. Finally, peas can also reduce the amount of plaque in your blood vessels and help your heart remain healthy. So maybe you are wondering, why is the divorce lady telling us about soup?

In Nevada, parental misconduct isn't enough by itself for a change in custody. What does that mean exactly? In the Sims v. Sims, 109 Nev. 1146, in 1993, the Court held that where a mother left her 10 year old daughter alone while the daughter had the flu over the three days when the mother had custody, it wasn't enough to change custody over to the Dad. In the case of Ellis v. Carucci, 161 P.3d 239 in 2007, the child's academic record decrease and her lack of ability to focus and do homework while with Mom wasn't a good reason to change custody. In the case of Mack-Manley v. Manley, 122 Nev. 849 in 2006, where Mom was "poisoning" the minds of the children against Dad, it wasn't enough to change custody. In Nevada, you must have the following when one parent has primary physical custody (1) the circumstances of the parents have been materially altered; and (2) the child's welfare would be substantially enhanced by the change.

In short, like it or lump it. Once the decree is in, you must have a new, different and substantial reason for the Court to change custody. The Court is particularly suspect if the Motion to Modify is shortly after the initial custody decision since the Court usually thinks you are simply asking the Court to change its mind from the evidence that it already decided on once. Six months is usually a low estimate as to when a change in custody should be filed. If it has been more than six months and/or there is a "substantial" reason then maybe the custodial unrest with your ex-spouse is worth it. Otherwise, be nice to your ex and for comfort.... I suggest split peas.

The REAL Generation Gap---When You Are Kept Apart From Your Grandchildren

2009-09-11T09:44:00.000-07:00

Grandparents’ Day is this Sunday, September 13th. While some more cynical folks believe this is a manufactured holiday dreamed up by marketing executives at Hallmark simply to sell more greeting cards, most of us believe it is a time to honor and celebrate that special relationship between grandparents and grandchildren. You raised your own children and dreamed of the day when you’d become a grandparent. You bought the cardigan sweater, pipe, rocking chair, stocked up on cookies and hard candies and were all set to start spoiling those children of your children rotten (as well as regaling them with fascinating stories about the “good old days”).

Then, the unimaginable. Your son gets a divorce, and his ex-wife, your daughter-in-law who you accepted and loved as one of your own children, packs up your grandkids and moves half way across the country. Or, in a move motivated by bitterness and spite, your daughter divorces and her ex-husband, the man you trusted to care for your daughter forever, the man you called “Son,” forbids you to see your grandchildren because he thinks you are a bad influence simply because you are related to that witch that “done him wrong.”

So what’s a grandparent to do? Your intentions are good, your heart is pure and all you want is to see your grandchildren on a regular basis, and, if possible, avoid any divorce-related slings and arrows that may be flying overhead.

Before considering legal action, it is imperative that you familiarize yourself with your state’s laws regarding the visitation rights of grandparents and certain other relatives. States vary widely in their treatment of grandparents as far as their right to visit their grandchildren, as well as when such an action for visitation can be brought.

The best way to go is to try to make sure that visitation orders for the grandparents are contained in the divorce decree. If they are not, in Nevada, grandparents and certain other relatives can petition the court for visitation only if a custodial parent has flat-out denied or unreasonably restricted visits with the child. So if your ex-daughter-in-law merely has that special lemon-sucking pissed-off look on her face while bringing her kids to visit you, that is not enough reason to petition the court for increased visitation.

If a parent has flat-out denied or unreasonably restricted grandparent visits with the child, there is a rebuttable presumption that the parents are acting in the child’s best interest and visitation with you, the grandparent, is not in those best interest. Baloney, you say! If you as a grandparent are going to get those visits, than you have to overcome that presumption with what’s called clear and convincing evidence.

What that basically means is this: the court will look at YOU, the grandparent, and decide if visitation with you is in the child’s best interest. The court will consider things like your mental and physical health, your moral fitness, if you provide the child with food, clothing, etc. during visits, the preference of the children themselves, if they are old enough to express a preference, and of course, most important, the love, bond, and pre-existing relationship you had with your grandchildren before the divorce.

So here’s what NOT to do if you are a grandparent planning to petition the court for visitation:
• When the children are around, don’t bad-mouth your ex-daughter or son-in-law no matter how wretched you think they are! (this really should not be done anyway, EVER, its just not nice and can have a very detrimental effect upon the kids)

• Don’t go out and rack up the speeding/parking tickets or knock over any liquor stores!

• Don’t start smoking if you don’t already.

• Don’t take the children without their parent’s permission or unlawfully extend your visits.

Here’s what TO DO:
• Keep yourself healthy and active! This is no time to break down.

• Buy the kids some stuff once in a while if you are able; you don’t have to go overboard; a t-shirt and a power bar will do the trick!

• Consult a family law attorney that understands the grandparents rights statutes in your state and can navigate through them with compassion and tenacity

• Most important, LOVE those grandkids! Just love ‘em. And make sure they know it and feel it, everyday.

Happy Grandparents Day!

Drivers License for 9 year olds?

2009-09-10T16:05:00.000-07:00

Its almost birthday time for my youngest son. Motorized scooters seem to be all the rage. (I think I am now qualified as old by calling something "all the rage")

I wonder if anyone at the retail store for these things in Nevada tells you this...

Motorized Scooters are considered mopeds in Nevada. A moped is a vehicle which looks and handles essentially like a bicycle and is propelled by a small engine which produces not more than 2 gross brake horsepower, has a displacement of not more than 50 cubic centimeters and is capable of a maximum speed of not more than 30 miles per hour on a flat surface with not more than 1 percent grade in any direction when the motor is engaged. (NRS 486.038) You must have a Class C or higher driver license to drive a moped or motorized bicycle on a public street. You do not need a Class M license. Mopeds do not require insurance or vehicle registration. If the moped produces more than 2 gross brake horsepower, or has a displacement of more than 50 cubic centimeters (50 cc), or is capable of exceeding thirty miles per hour (30 mph) on a flat grade, it is considered a motorcycle and you must have a Class M license, registration and insurance. Mopeds must have the same safety equipment (lights, mirrors, etc.) as a motorcycle in order to be driven on any public street. See the Motorcycle Equipment Tip Sheet. Other vehicles with a small engine are considered off-road motor vehicles and may not be operated on public streets. That includes sidewalks. You can receive a ticket which is a misdemeanor if you ride the motorized scooter on a public sidewalk. So, if the motorized scooter is for your huge driveway in Nevada then enjoy, otherwise, buy another video game and move on...

Lost Your Job? Make Family Court Your Second Stop (after the Unemployment Office!)

2009-09-04T13:32:00.000-07:00

The job news is sobering for our home state....joblessness across Nevada hit 12, that's right, 12 percent in June, up from 6.4% a year earlier. Unemployment jumped even faster right here in the world's most exciting city, surging to 12.3% in June, up from 6.3% in June 2008.

If you are parent with child support obligations, losing your job can have a devastating ripple effect, starting with you, and rippling on down to those kids you love and do your best to provide for. So what do you do if you find yourself unemployed, facing what could be a prolonged and anxiety-filled job hunt, and worried about making your support payments?

Well, what you should NOT do is wait until you've missed a few payments, you're accruing arrearage, and your ex is threatening to call the D.A., using terms like "lien" and "garnishment" and "debtor's prison" (we don't have debtor's prisons anymore, but people say all sorts of stuff when the check ain't in the mail!).

First, if eligible, get your butt to the unemplyment office, send out resumes, send out a gazillion applictions, network like crazy, and beginning spinning those wheels that will hopefully result in a brand new job! Then, consider seeking a review and modification of your child support order. An order for support can be reviewed at least every 3 years (that means it can be reviewed MORE often).

Actually, NRS 125B.145 (4) states that the court can review orders for support ANYTIME, on the basis of changed circumstances. This law defines "change in circumstances" as a change of 20% or more in the gross monthly income of a person who is subject to a child support order.

So, for the sake of your children, your peace of mind, and your future earnings, which you hope will be plentiful, don't wait. Cover yourself in case your next job is a little further around the corner than you hope.

Beware of the Bootie Call...... Child Support in Nevada

2009-09-03T09:04:00.001-07:00

This part of family law baffles the mind. There is a presumption under the law, in other words it is assumed, that if you are married when a child is born then the married couple are Mom and Dad. In the middle of such an awe-inspired moment as the cigars are being passed and the flowers and teddy bears are delivered..... stop...... ask for a paternity test. Okay, okay, it may not seem convenient or right or even possible to ruin such a moment BUT if you don't then here is your problem.......

In Nevada, paternity is assumed if:

You were still married within 285 days of the babies birth;
You cohabitated (lived together) for the six months before the conception of the baby;
You allow the child to live with you and hold them out as your child to others;
You attempt to marry the pregnant woman.

The kicker (no pun intended) is that if you accept responsibility for the child, the Nevada courts no longer are concerned whether you are actually the biological parent for purposes of paying child support. In 1975, a divorce was granted for Alice and Melvin Harris. Melvin thought the child born of the marriage was his. Little Ahmad Jamale Harris was, in fact, not his. The divorce required that Melvin pay child support and that he have visitation rights. Alice went back to the Court and asked them to reverse the decree because Ahmad was NOT Melvin's child. The Court decided that once the decree had been granted, the matter was closed (in legal terms, res judicata). Melvin was ordered to pay support and Alice had to give him visitation over a child that wasn't his.

The Court still prefers "any" parent compared to "no" parent. The best interests of the child in Nevada is a child with parents and support. Therefore, whoever assumes the role, gets to take it unless there is a better offer...

Adultery and Child Custody - Is the screwing you're getting worth the screwing you're going to get

2009-09-02T09:44:00.000-07:00

Until 1980 in Arnold v Arnold, the Courts in Nevada held under the Peavy v Peavy case that the Court would view the mother as a preference for custody. The rule behind this was the "tender years doctrine" that the Court felt that a motherly influence was required for children who were in their "tender years". In 1980, the Court specifically overruled that theory and exchanged it for a "best interests of the child standard". As a parent going through a divorce, one of the most stressful factor is the battle over child custody.
Nevada is a "no fault" divorce state which means that you don't state why you are getting divorced or who is to "blame". If you are divorced in Nevada it is because you simply have "irreconcilable differences" or in English, you just don't get along.
So when does adultery make a difference? As the Court said, "one may be a bad wife, but a good mother, and adultery is many times considered, because of facts involved, a most serious offense against a spouse and not as serious an offense against children." In several reported cases in Nevada, the Courts have taken into consideration whether a parent is representing "good morals" to their children or whether the parent is "cohabitating" with someone who isn't their spouse as a factor in child custody. The basic rule of thumb is, don't give your ex-spouse anything to talk about when you are still fighting for child custody. The case law in Nevada is riddled with drug abuse allegations, drug use, alcohol use, sexual orientation, sexual partners (before and after marriage), etc. It is fighting dirty but when you have a Judge making the decision of who gets your kids, that Judge is a human being who has his/her own personal life to draw from and therefore, their morals and values make up that judgment. The discretion is with the Judge as to who would make the better parent "in the best interests of the child".
During custody proceedings, you should always be on your best behavior and have someone to verify it. For more information, please contact me at stephanie@nevadafamilylawsource.com or 702-435-4175 for an appointment. www.nevadafamilylawsource.com

They got you through the Divorce but now you need to kick them to the curb

2009-08-31T14:32:00.001-07:00

The day of reckoning has finally come and a decree has been entered granting you the primary custody of your child and giving that no-good ex-spouse visitation every other weekend just like you had asked. As a big sigh or relief and calms sets in, you turn to your attorney and smile and give him/her a big hug for helping out. The case is complete, the attorney sends you a copy of your decree including but not limited to a certified copy of your decree for your records and a "paid in full" account ledger. As you file the items away, everything seems wonderful in the world.

(This is where the sound of a car braking and squealing occurs)

Speed forward to nine months later, your ex-spouse hasn't shown up for visitation for this two weeks and then... he/she shows up with an official looking court decree that says that the divorce decree has been modified and he now has full custody of the children. As you look at the clock, it is past 5:00 pm on a Friday and as you look back outside you notice that your ex-spouse's attorneys' Porsche is parked in your driveway and a police cruiser is behind it. What happened?

Attorneys in divorce actions must withdraw their representation on the record when their representation is complete. If the divorce attorney does not provide a notice to the Court and opposing counsel that all further documents are to be served on you then it is still, officially, good service for your ex's attorney to serve ONLY your former divorce counsel for what is considered "supplementary" proceedings. Supplementary proceedings are related issues to the divorce decree which was entered.

Take for example the case of State ex rel. Groves v. First Judicial Dist. Court, 61 Nev. 269, 125 P.2d 723, 1942 Nev. LEXIS 14 (1942), the former husbands attorney was served with documents for modification of custody AND for attorneys fees to be paid by the ex-husband. Unfortunately, the ex-husband's attorney did not get in touch with the ex-husband before the hearing. (oops). The attorney showed up for the husband nonetheless and explained to the Court that the ex-husband should have been personally served not only served through the attorney. The Judge disagreed, changed the custody AND ordered the ex-husband (who had no idea about the hearing) to pay for his ex-wife's attorneys fees for showing up.

This is still the law in Nevada. Whether you have a divorce attorney that you think is phenomenal or whether you think they stink, remember, what you don't know may hurt you when it comes to things filed after your divorce by your former spouse unless you make certain to (1) file a notice of appearance in the case as an in proper person and note that you have terminated your attorney's representation and that all matters should be served on you personally and list your address and phone number; (2) keep the address and phone number up to date at the family court; (3) ask your divorce attorney to withdraw at the end of their representation and make sure that you have an order signed by the Court and filed that states that they are no longer your "agent" for receiving documents so you get them directly.

Custody of Pets in Divorce in Nevada

2009-08-31T09:04:00.000-07:00

Although most of us feel that our pets are like family, the Court and Nevada law don't look at it quite that way. Under NRS 193.021, dogs, cats, fish, or other pets are "personal property". The same law that defines them as personal property also lists gasoline. When a divorce is imminent one of the hardest things at times can be the issue of the family pet or pet(s). The family pet is not subject to a "shared custody" arrangement under the law any more than your ex spouse can share your big screen television every "other" weekend. Provisions which are written in to the divorce decree are generally considered void since personal property is not subject to such terms.
In deciding who gets the pet under Nevada law, we would examine a couple of issues:

(1) Was the pet a gift? If so, the person receiving the pet as a gift is lawfully entitled to keep it;
(2) Was the pet owned by one or the other spouse prior the marriage? If so, the prior owning spouse keeps the pet.
(3) If neither apply then it is no different than determining who gets to keep a stereo, either you decide, you negotiate or the Court decides for you.
(4) If the pet has medical problems, the problems follow the possession. You take the dog with diabetes then you have to pay for its insulin.

What happens if one spouse takes the pet without the permission of the other spouse and the Court finds that it was intentional and the pet really belonged to the spouse who lost it? In Nevada, theft of an animal worth $250.00 or more (really worth it not emotionally worth it), is a serious crime and a chargeable and jailable offense. If you kill, maim or poison the pet then it is a Class D Felony in Nevada and a $10,000 fine. (NRS 206.150)

Pre-Planning a Divorce: Steps that Every Married Person should Take

2009-08-28T09:43:00.000-07:00

Although most people spend months planning for their wedding, very few people plan for their divorce. Usually momentary emotional reactions or the quintessential "straw that broke the camels back" occurs. No one wants to seem sneaky or that they don't believe in the forever after but one out of two marriages end in divorce and yours might be the one or it might be the other.

The most common things that we see as divorce attorneys are things that could have been cheaper and easier to deal with if people just knew not to do them in the first place:

(1) If you own your own home prior to getting married, don't put your new spouse on the deed because you feel some sort of pressure or moral obligation. Mortgages typically have a clause which states than any transfer of the title if a violation of your mortgage. In divorce situations where one spouse owned the house before and therefore has the mortgage and the other spouse ends up keeping the house, a huge problem arises. The non-resident spouse has the credit pitfall and the resident spouse has nothing to lose and is on title and can hold up any refinance, sale, etc. Worse still, if the non-resident spouse dies, the house most likely falls to the now ex-spouse.

(2) If you get an inheritance then place it into an account that is in your name and don't mix it with your joint account. If you don't think that can tactfully be done then place it in an account in the name of your child or children with you as the Administrator.

(3) Place a provision in your will and/or trust documents which states that the filing of a divorce action invalidates any and all gifts or beneficial interests to your spouse.

(4) Each spouse should have their own car with each car being financed in the name of the spouse driving it only. This could save you if there are car accidents and/or judgments also.

(5) Separate property before marriage should stay separate. For those who are reading this that have divorced once, this is no great surprise but for those who haven't, if you have a treasured 1965 Mustang in mint condition or a family farm that was given to you before you were married then you need to keep it in your name.

(6) Know that any investments you make as a married person even if YOU are the one who made them with YOUR salary, are still half your spouses in a community property state.

(7) Presents are presents. There is a no "take back" rule in divorce law. The fancy watch or the big diamond ring that you bought with your money when you were dating does not get returned to you just because you get divorced no matter what happened that caused the divorce.

(8) Preliminary Injunctions are only as good as the paper they are written on. Typically, a joint preliminary injunction is entered in divorce that requires that both parties not incur additional debt or dispose of assets of the community until the Court makes rulings or the parties come to a consensus. Here's the problem, the pawn shop, the car lot and the mortgage broker doesn't give a crap about your preliminary injunction. Since your former spouse probably isn't going to volunteer the information if they are spiteful, your soon to be ex can trade in cars and the car could be gone by the time you find out, pawn your stuff or refinance your house on a 15 year mortgage where you can't afford the payments. So watch out, check the land records frequently, keep what you want in your possession and get that preliminary injunction out there so that people know about it if they are likely to extend credit to your spouse.

Quickie Divorce in Nevada - Hey, Honey, we could just drive through the wedding chapel...

2009-08-27T08:26:00.000-07:00

Britney Spears was probably the most famous quickie divorce in Nevada over the last few years. It seems odd that it was only 2004 when she had a wedding chapel marriage to Jason Alexander, her friend from Louisiana on January 3, 2004 and was divorced by January 5, 2004. Star power to say the least, a divorce in two days. In Nevada, there is a six week residency requirement for divorces and Britney doesn't live in Nevada so instead she received an annulment.

Almost every sit com imaginable has had the "uh oh" drunken Vegas chapel wedding. It seems to be a great suspenseful season finale. That being said, you can only get a divorce as quick as Spears in Nevada if the following things are present.

There are the two automatic reasons which don't even require court action:
(1) The "you might be a redneck" situation - you marry someone closer than your second cousin in blood relative; and/or
(2) The polygamy/bigamy problem - you are already lawfully married or not yet divorced.

The only other way to get the two day Britney special is if:

(1) You can prove that you did not fully understand what you were consenting to;
(2) You are legally insane;
(3) You were under 18 and did not have parental consent;
(4) You were defrauded and you can prove it;
(5) You were married in Nevada;
(6) You don't continue to live with the person after you find out about any of 1 through 5 or after you become sane;

If you find yourself married and in a drunken stupor in Nevada, see an attorney fast because there is an unstated time limit on how long you can be married and still have the marriage annulled. Too some religions as well as some morality concerns, an annulment is important. The annulment serves to show that the marriage was void so you are not divorced once an annulment decree is entered, the marriage is void and doesn't count for legal purposes.

For further information on what might be considered fraud or what might constitute that you "didn't understand enough to consent", contact The Cooper Castle Law Firm, LLP 702-435-4175 to discuss your individual circumstances.

How to Get your Child Support by Being Aggressive

2009-08-26T09:51:00.000-07:00

Child support enforcement in Nevada is normally turned over to the Clark County District Attorneys Office. The District Attorney's Office in Nevada can do the following things:

DAFS enforcement services may include one or more of the following:

Withholding up to 50% of net income from paychecks (this may be increased by 10% if payments are owed for 12 weeks or more)
Withholding up to 50% of unemployment compensation benefits
Withholding up to 50% of certain monthly disability payments and 100% of permanent or partial disability awards
Attaching bank and other accounts
Intercepting federal and state income tax refunds
Recording a judgment that allows DAFS to collect overdue child support payments whenever the noncustodial parent sells real or personal property
Enrolling minor children in employer-provided health insurance plans
Seizing vehicles and other property
Referring cases to state prosecutors for civil or criminal contempt proceedings, or
Suspending various state-issued licenses

There are times, however, when the system is just too slow and too overburdened. Parents who are owed child support and have judgments for arrearages can pursue those judgments civilly with attorneys as well. Here are some examples of things that can be done.

1. The court can order the posting of a cash bond or personal property, real property or other assets to ensure payment where there is a court ordered arrearage. A motion is brought before the Court to institute a Trustee to hold certain property as a deposit that may be sold to satisfy future arrearages under the Nevada Revised Statutes. The court order should state the date the non-payor is required to post the bond; the amount to be posted; the reason that money should be released from the bond; and a requirement that the trustee is responsible for keeping the bond at the court ordered amount. This means they will be responsible for making the non-paying parent replace any payments that are deducted from the bond.

2. The court can order that a business owned by the non paying parent be placed in Receivership. The judge appoints a third party as the "Receiver" who is then responsible for conducting all financial transactions - taking in the money and paying the bills including the child support.

3. An IRS Full Collection can be used on cases with over $750.00 of back support owed. The IRS seizes all property and assets to sell to satisfy the unpaid child support. ACES recommends this procedure for the self-employed and out-of-state cases with an arrearage over $5,000. You need to:

a. Make sure you are a have an open case with your local child support agency.

b. Request an IRS Full Collection services in writing to your local, state and Federal Regional Office of Child Support Enforcement.

c. You must get approval from the local, state and federal child support offices.

d. IRS then handles the case the same way back taxes are collected, including shutting down a business, seizure of all property and jail terms.

If the solutions listed don't solve the problem then you may need to resort to the following for those non-payors who receive pay in cash or through some hidden source

1. Credit Check - Your local government child support agency or private attorney can provide this service. Credit checks could show hidden assets, ability to pay bills, loans, bank accounts, property in other jurisdictions, accounts in other jurisdictions or other under names, and businesses.

2. An Order For Judgment Debtor exam can be used to require the non payor to attend and testify about all of their assets, employment, etc. If the non payor fails to appear then a bench warrant can be issues requiring their arrest for non-appearance and setting the bail amount at the amount of child support owed. If the non-payor does appear then he/she is questioned on his or her assets, the business assets and included in the subpoena is a requirement that they present the tax returns that they have filed for the previous five (5) years, copies of all bank statements, for all checking, savings accounts they and the business have, copy of any retirement account information and copy of any business records they have. The tax returns can be invaluable, especially when you discover that a self-employed debtor has not filed taxes for a given year or years. During the deposition, the focus on the self-employed debtor is about current work they are performing and who those clients are and how much they are owed.

3. Contempt of court hearing can be held. The judge can order non-paying parent to seek work and report to the court with proof that he/she is seeking employment. If non-paying parent fails to provide proof, he/she can then be sent to jail after the second contempt hearing is held to show non-paying parent did not seek work.

If You Have a Judgment for back support or arrearage (a judgment is a term which means that a person owes a specific amount of money to another person) then you must record a certified copy with the Recorders office to establish a lien. A lien that is placed on property means that the property can not be sold or change title until the judgment award amount is paid to you.

The duration of a lien is for 6 years from the judgment. For example, if you place a lien on a house and do not foreclose, you may have to renew the lien every 6 years or the lien will be removed from the property.

You can place liens on includes:

a. Real property - home, land.

b. Personal property - jewelry, art work, coin collections, etc.

c. Motor vehicles usually must be worth more than $1,000.

d. Boats, motorcycles and recreational vehicles.

e. Equipment, Tools, etc.

You can file a Writ of Execution (fieri facias). The sheriff seizes the property and it is placed for public sale. The cost of court fees and appraisal must be taken out of the monies collected. The remainder of funds should go towards your back child support.

Garnishment (Writ of Garnishment): The Non-payor is notified and if no defense is presented, the employer is notified and wages are taken. This method is suggested for bonuses and commissions in addition to wages. This is not the same as an income withholding and can be done in addition to it.

A good family lawyer and collection lawyer can make a world of difference in you and your childrens life.

Who gets the House and Who has to Pay the Mortgage in a Divorce?

2009-08-25T09:55:00.000-07:00

One of the most overlooked areas of the typical family law practice is in the biggest asset of the divorcing family, their house. It was the largest investment that you made as a married couple and yet when the question arises of who gets to keep it and who moves out the system is often flawed.

I have done foreclosures for 13 years. In that 13 years, consistently, I have seen malpractice from family law attorneys who might initially please their clients but once the retainer is gone, the former spouse realizes exactly what a predicament they are in. Here is the typical scenario: The husband and wife splits up and they have three children. The husband is the main source of income in the relationship making $60,000 a year or so. The mortgage payment is $1500.00 per month. The wife has a full or part time job but makes $25,000-$35,000 per year. The divorce attorney for the wife gets primary physical custody for the mother and requires that the father pay child support and part or all of the mortgage payment.

The serious and grave concerns start months later when (A) ex-husband loses his job; (2) ex-husband quits or moves jobs and makes less money or claims he does; (3) ex-husband claims that he has his own expenses and can't afford his rent, her mortgage and the child support; (4) ex-husband gets remarried and new spouse nixes his payments.

First, you must understand that the bank considers whomever is on the loan responsible for the mortgage. That means that showing your divorce paperwork to the bank, claiming that it isn't your responsibility or bargaining with the bank because of your "assumption" that your ex-husband was taking care of the mortgage will usually merit you nothing.

Second, if the mortgage bill statement is being mailed to him and you have no online access or are not on the loan, you may not know that the house is in foreclosure until it is too late.

Third, if the mortgage is not paid and the home goes into foreclosure and an eviction notice appears on your door, your lack of knowledge will not usually buy you more time or an opportunity to rent the house or revisit the family court to get justice before you are evicted.

So, if you have a house and are going through a divorce make certain that you have a family law attorney who is well versed in mortgage and real estate law and that all of these matters are reviewed and processed so that your divorce doesn't become more bitter AFTER it is final.

It's hard dating as a single parent...

2009-08-24T12:36:00.000-07:00

Growing up, I remember hearing once that you "shouldn't put yourself in the wrong place" because sooner or later, its going to be the wrong time. Sometimes, a sad story will make a potential candidate for a girlfriend/boyfriend seem endearing or needy which means of course that you can be their handsome prince or beautiful princess and come to the rescue. But before you climb above that white horse and head for the sunset, a few statistics:

- In 1994, women separated from their spouses had a domestic violence victimization rate 1 1/2 times higher than separated men, divorced men, or divorced women. Source: "Sex Differences in Violent Victimization", 1994, U.S. Department of Justice, September, 1997.

- According to the most recent government data, women are the perpetrators in over 62% of all child abuse and lead in all categories except sexual abuse, where female parents still represent 27% of the perpetrators compared to 35% for the male parent. - 10 Years of Reporting Child Maltreatment 1999," publishing in 2001 by the U.S. Department of Health & Human Services, 800.FYI.3366.

- Based on the report by Dawson, J., & Langan, P. (1994, "Murder in Families, Bureau of Justice Special Report. Washington, DC: Department of Justice, NCJ-143498," 55% of convicted child murderers are the biological mothers of the victims.

- Sexual abuse occurs mainly in families that have broken or reconstituted; marriage is actually the best protector for children. (NSPCC)

So Prince or Princess, the risks went up. Most single parents are aware of the potential risks for a perpetrator finding their children as prey once they have allowed the person to become intimate in the same home as the children or allowed them to have alone time with their children. Single parents unfortunately are often put in the place of not having a great support system which means that more often than not, the new boyfriend/girlfriend or step-parent must be the babysitter. All of the responsibility but none of the perks, the "babysitter" can be in for a world of surprises.

So let's talk about lewdness. What is lewdness? Under NRS 201.230, lewdness is defined as: "A person who willfully and lewdly commits any lewd or lascivious act, other than acts constituting the crime of sexual assault, upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of that child, is guilty of lewdness with a child." Although that sounds disgusting and seems as if you or your boyfriend, girlfriend or stepparent partner would NEVER do something like that, allow me to explain.....

The punishment for lewdness with a child under 14 years of age is LIFE in prison. One of the more recent cases shows the issue, Richmond v Helling involved a young girl whose father had sexually assaulted both she and her sister when they were 1 and 2 years old. The father was sent to prison. Enter Mr.Richmond, the new boyfriend of Mom, who is an amputee, has diabetes and erectile dysfunction. The daughter accuses him of acting in a lewd manner. He was convicted for LIFE in prison. The Court held that there was no requirement that the attorney for Mr.Richmond question the girl on issues such as the appearance of his amputation, the mottled coloring of his skin based on the diabetes or the erectile dysfunction, nonetheless, he was imprisoned for life. Richmond v Helling, 3:05-cv-273-ECR-VPC, July 30, 2009.

Open and Gross Lewdness (a gross misdemeanor on 1st offense and Class D Felony on the Second subject to up to 4 years in prison and sex offender registration) is the exposing of the private parts. So, if you happen to walk around after your shower make sure that there are no kids around or you could be charged. Despite the fact that this law doesn't really say what equals exposing the private parts, the Nevada Supreme Court held in August 2009 that it wasn't a "vague" law. The case that the Court based that on was a conviction for lewdness because a robber in a hold up "suggestively touched" a cashier's arm. Woah!!!!!! What?

So what are the other things that you can go to prison for that they call "lewdness"? A North Las Vegas police officer was arrested for allegedly suggesting that speeding motorists exchange sexual favors for no tickets and for repeatedly calling the speeders. A man was arrested for lewdness in Sparks, Nevada for allegedly going up behind a woman, grabbing her by the hips and thrusting against her. In Alabama, an 81 year old woman who peed in the bushes was charged with lewdness.

The basic lesson is this: Be careful who you let near your children and be careful what position you place yourself in when you are around children that aren't yours. Lewdness paints a broad stroke in Nevada from "suggestively touching arms" to "peeing in front of someone" and the ramifications are probation and registration as a sex offender to life in prison. Always remember, don't put yourself in the wrong place because you never know when it might be the wrong time......

Unwed Parents - Whose last name does the baby get?

2009-08-24T10:33:00.000-07:00

Although many people refer to Him as Jesus Christ, the Greek word translated as "Christ" is cristos (Greek: Χριστός , Strong's Concordance # G5547), which means "anointed" and was commonly used to refer to the prophesied "messiah" or savior. It would be more proper grammatically to say the phrase, Jesus, the Christ. Christ isn't actually his last name, it is a term of description.

The Bible actually states:

"You will be with child and give birth to a son, and you are to give him the name Jesus." (Luke 1:31, NIV)

Fortunately for those in Jerusalem in the years before Christ, there was never a huge discrepancy as to what last name or surname, Jesus should have had. Surnames actually evolved much later for much of the World but came into being in different times for different cultures. The Chinese had them quite early, the 5th century BC., in fact, and in cultures where clans were important, it was probably earlier too. Their surnames were an expression of allegiance to the central clan hierarchy,(as in the Scottish and Irish) or a means of telling who was a possible marriage partner.(eg the Batak of North Sumatera whose first question to anyone traditionally was not 'how are you' but "marga apa?" " what clan?") The English began to take on surnames in the early middle ages (11th century), starting with the Norman elite, who took theirs from their place of origin or,in the case of younger sons, from the manor they owned. By 1400 most English had surnames, either from the physical characteristics of an ancestor (Black, White, Short) or their ancestor's occupation (Smith, Archer) family relationships (Johnson, Watmough-kin of Walter-) or nicknames (Pennyfather-miser). The highland Scots and the Welsh did not have fixed surnames until as late as the 19th century in some areas, as they used the son of system (mac in Scotland, ap in Wales). Some of the Irish surnames (with o' prefixes) also fit this category, but they were fixed at an earlier time, because of the conquering of Ireland by the Normans. In many parts of the world, there are no surnames at all...In Indonesia, while tribes such as the Batak and the Toraja have clan names that are used as surnames, the numerically dominant Javanese have none traditionally, although they are gradually being adopted. The Balinese do not have them, and are maintaining the custom. Most of them, being Bali-Hindus, know their temples of origin, and detailed descents are considered unnecessary. Insted of surnames, they have a complex naming system, involving titles of caste, position in family, formal given names and home names.

It is not surprising then that one of the first issues that come up to sometimes surprised expectant unwed parents is what last name their baby will take on. While there is not a steadfast law which states whether it is the mothers surname or fathers surname that belongs to the child upon birth, the Courts have typically looked at the birth certificate as bearing the surname chosen and contracted by both biological parents. The ultimate decision to later change a last name creates the burden on the parent who is trying to change the name to prove that it is in the best interest of the child to have a particular last name. In the case of Mageira v. Luera, the mother had custody of her son for a continuous three year period. She petitioned the Court for child support from the father when the child was approximately four years old. The Court granted support from the father but then granted the request of the father that the childs last name should be switched from the mothers surname to the fathers name because the father was “paying for the privilege”. The Supreme Court said later that children do not bear the name of the father simply because a father pays support but rather because it is in the best interest of the child to have one name or another.[1]

[1] Mageira v Luera, 106 Nev. 775 (1990)