Understanding Your Rights During a Divorce

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Our experienced family law attorneys at Handelin Law put together a short guide for you to better understand your rights before and during a divorce.]

Who can file for divorce?

Either you or your spouse must reside in the state of Nevada with an intent to remain a resident for at least six weeks to file for divorce.  This may be an issue with minor children, where states look to the child’s home state.  You may have to require proof of residency, or you can get an affidavit from your employer or another witness who can substantiate your residence here in Nevada.

What are the grounds for divorce?

Nevada is a no-fault state, which means you may file for divorce if you and your spouse are incompatible, if you have lived apart for a year or more, or you or your spouse have been deemed incapacitated for two years or more. The State Bar of Nevada has provided an informational brochure for a better understanding.

How to file for divorce

If you or your spouse are seeking a divorce, a joint petition is typically preferred for finances and control.  However, if the matter is contested, either you or your spouse may file a complaint with the district court. The opposing spouse will have an opportunity to file an answer and counterclaim.  However, if the opposing spouse does not answer the Complaint for Divorce, this will lead to one spouse dictating the terms of the decree, which is the equivalent to having an uncontested divorce.

If either you or your spouse is a resident of another state, Nevada may still be appropriate.  However, a consultation with one of our helpful family law attorneys may be appropriate, as there are several considerations when determining where to file for divorce, especially when minor children are involved. If the other person is not cooperating, then you may serve him or her with a summons and complaint.

What is the divorce process?

There are two types of divorce proceedings: formal divorce proceedings and summary divorce. Once the court has granted whichever type of divorce, it is final.

         Formal Divorce Proceedings

If you are facing a spouse who is being uncooperative or there is a contested issue such as alimony, you will use formal divorce proceedings. In Nevada, there is no jury trial. A judge will determine child custody, alimony, and the division of assets. The judge also can order one spouse to pay the other spouse’s costs of the divorce.  Anytime there is a formal matter, the parties necessary lose control of the outcome and the judge’s opinion will control.

          Summary Divorce Proceedings

A summary divorce, also known as a joint petition, is another divorce process. A married couple can file for a summary divorce when the spouses are both in agreement about getting divorced and do not need a judge to determine the distribution of assets or parental rights. For you and your spouse to qualify for a summary divorce, you must:

Agree to the divorce;

Be incompatible or have lived apart for one year or more;

Have no children under 18 OR have agreed to a custody and child support arrangement;

Have no community or property or agree on how to divide the property;

You both waive right to alimony or have agreed to a specified amount and payment plan;

You both waive your rights to a more formal divorce proceeding.

What happens to marital property in a divorce?

Nevada is a community property state, which means the assets acquired during the marriage are presumed to be equally owned. Examples of community property include money, real estate, and other tangible goods acquired during the marriage. During the divorce process, one spouse may offer a settlement agreement regarding property rights. If the other spouse accepts, then the court will divide the property accordingly.

In some cases, a spouse may reject the offer, which will cause the court to determine the ownership of the marital assets.  The court also has the right to order the rejecting spouse to pay the other spouse’s attorney fees and costs.

How does child custody and support work in Nevada?

Child support in Nevada is based on a fixed percentage of the non-custodial parent’s gross monthly income. Depending on the amount will depend on the number of children and the respective incomes of the parents.  Child custody is determined by the best interest of the child in Nevada.

If you are thinking about getting divorced in the Carson City, Reno, or Tahoe Basin area, we invite you to call Handelin Law. Our divorce attorneys can help protect your rights – please call us at 775 882 8032 or schedule a consultation with us online.