Jurisdiction – Can you file your case in Nevada?
Grounds for Divorce – Do you need a reason to file divorce?
Legal Separation – Difference between divorce and legal separation?
Joint Petition or Uncontested Divorce – Can you agree to the divorce?
Divorce Process – How do you file the divorce?
Temporary Orders – What if you need temporary support?
Default Divorce – What if your spouse doesn’t respond to the divorce papers?
Modifying Divorce Orders – Can you change a judge’s decision?
Divorce terminates a marriage. It is available to opposite sex, and same sex couples who have legally been married. It is not available for couples who are not married and simply in a relationship. Nevada, unlike some other states, does not recognize “common law marriage”, where an unmarried couple, who have cohabitated long enough, have some of the same legal rights as married couples.
In order for a court to grant a divorce, it must have jurisdiction over both parties. Jurisdiction in a divorce is basically the power of a court to settle legal disputes. A court is required to have two types of jurisdiction in a particular matter: jurisdiction over the parties, called “personal jurisdiction,” and jurisdiction over the type of dispute, called “subject matter jurisdiction.” The US Supreme Court has held that subject matter jurisdiction over a marriage, including in an action for divorce, exists as long as the state court has personal jurisdiction over either of the parties to the marriage.
The requirements for jurisdiction over a divorce action are laid out in Nevada Revised Statute (NRS) 125.020. Briefly stated, a court has jurisdiction if either one of the parties resides within the county of the court, or if one of them has resided anywhere in Nevada for 6 weeks before the action is brought.
According to Nevada Law, to have the required “residence”, a person must be “physically” present within the state during all of the time they are claiming residence. Residence isn’t recognized by being registered to vote, or having a state driver’s license. It’s about where you physically live. The Nevada Supreme clarified that to determine if a party is physically present requires a court to find that the residency requirement for a divorce action has actually been met and that residency is not being established by fraudulent means. Further, NRS 54.010 states that when the court’s jurisdiction depends upon the residence of one of the parties to the action, the court shall require corroboration of such residence. This is done through a form called a Resident Witness Affidavit
In a case in which the Nevada Supreme court was tasked with determining residency, the Court found that a husband did not “reside” in Nevada, where the husband signed a verified complaint for divorce only 5 days after he had arrived in Nevada, and had never resided in Nevada at any other prior point. A resident witness affidavit which stated that the affiant had known the husband for more than 6 weeks and had seen the husband physically present in Nevada on an average of 3-4 times weekly was fraudulent.
In addition to the requirement that a party establish physical presence in Nevada, Nevada case law requires the party provide evidence that he or she intends to remain in Nevada for an indefinite period of time. Nevada courts have held that a formal recitation of an intention to remain in the state is not required. On the other hand, a mere declaration of intent to remain, without corroborating evidence, is insufficient. In Plunkett v Plunkett (1955), the Supreme Court of Nevada was tasked with determining whether a party had established a physical presence in Nevada. In that case, the party seeking to establish physical presence asserted that working in Nevada on a construction job for 8 months, after which the parties never returned to Nevada once the project was completed, and the parties never demonstrated an interest in residing Nevada until an attempt at a divorce in Colorado was unsuccessful, did not support a finding of Nevada residency.
If a party does not challenge jurisdiction during a divorce action, it may be held to have waived its objections. For example, where a court noted that a husband did not attempt to dispute his wife’s residency in Nevada, or otherwise contest the court’s jurisdiction before trial, and did not object to testimony of his wife’s residence in Nevada during trial, he could not later dispute jurisdiction.
Family Court (aka Divorce Court)
Another jurisdiction matter a party seeking a divorce might be concerned with is which court in Nevada can hear the case. This is called is called venue. “Venue” concerns which district court, among those which have jurisdiction, a divorce should be heard. The primary considerations are fairness and the convenience of both parties.
NRS 3.0105 establishes a Family Court in every county with a population of 100,000 or more. This court has exclusive jurisdiction to adjudicate domestic relations cases including divorces and related matters. Therefore, in larger counties such as Clark County, a party seeking a divorce must file in Family Court.Residents of Henderson, Nevada must file their cases with Clark County Family Court.
The Nevada statutes generally provide that an action can be tried in the county in which the defendant resides at the commencement of the action; or, if the defendant does not reside in Nevada, in any county which the plaintiff may designate in the complaint for divorce.
The responding party can ask that venue be changed to the county of his or her residence. The court also has discretion to change venue upon motion of a party when the county designated in the complaint “is not the proper county”, “when there is reason to believe an impartial trial cannot be had” or “when the convenience of the witnesses and the ends of justice would be promoted by the change.”
Grounds for Divorce
Originally, Nevada limited divorce to a specified number of grounds requiring fault by one of the parties. The fault would have to be proven for a divorce to be granted. Nevada now allows for a “no-fault” divorce. Under the current statute, “no-fault” grounds on which a divorce may be obtained are: (1) Living separate and apart for 1 year without cohabitation, and (2) Incompatibility. Because you don’t need to prove “incompatibility” this is the reason most often given for filing the divorce.
An alternative to divorce in Nevada is annulment, which doesn’t end a marriage, but instead renders it void from its beginning. NRS 125.300, sets out the grounds for obtaining an annulment. Unlike divorce, annulment cannot be had merely upon a finding of incompatibility. Instead, there are a limited number of grounds for which a marriage can be annulled. Most having to do with the mental capacity, misrepresentation, or intent of one of the parties. The jurisdictional requirements are the same as for divorce, except that jurisdiction for an annulment is automatic without a showing of residency if the marriage being annulled was entered into in Nevada.
As we have seen, living separately for one year gives an automatic right to a divorce if one is desired. However, a couple may decide they want to live separately without getting divorced. If a couple wants to be separated for an indefinite period of time, but does not at that point want to formally end the marriage, they can be legally separated without applying for a divorce. Legal separation can be thought of a preliminary step to a divorce, whereby the court is given authority to order child custody and support or maintenance during the process of a divorce or while a divorce is being contemplated. Read our article divorce or legal separation to learn more about when to file a legal separation.
As we mentioned, Nevada doesn’t recognize common law marriages. Common Law is where couples have lived together long enough to be considered married, even though there has not been an official ceremony. Nevada has, however, adopted the “putative spouse” doctrine, an equitable doctrine whereby a relationship presented as a marriage may be deemed a marriage. If both spouses participated in a marriage ceremony, and both parties extended the appearance of being legally married, you may have a putative spouse situation. A “putative spouse” is entitled to a division of property acquired and shared during the relationship under the same principles as those for a divorce, but is not entitled to alimony.
A common example is a couple who get married, however one of the spouses is still married to another. Being married to another voids the second marriage. This second spouse could claim putative spouse. Another example is a long term marriage where the couple participated in a marriage ceremony, wore wedding rings, and told all who knew them they are married.
Joint Petition or Uncontested Divorce
If both parties want to obtain a divorce and there are no contested issues, NRS 125.181 provides a “summary procedure” for divorce. The couple can start this process by filing a joint petition for divorce, specifying the agreed upon grounds for divorce, which in most cases will be that they are incompatible in marriage. In addition to the grounds for divorce, the parties must state in their petition the basis for the court’s jurisdiction over the parties, and include supporting affidavits and details about the couple’s marriage and children, if any and whether the wife is pregnant.
The petition must also contain a statement regarding the existence of community or joint property; and, if so, that the parties have formally agreed as to how it will be divided, whether either party will pay spousal support to the other and in what amount, or whether the parties both waive spousal support. In the case of a couple with children, their petition must also set forth their agreement as to the children’s custody and support. The court may grant the divorce on the basis of the joint petition if all of these provisions are addressed and both parties request the court enter a final decree of divorce and waive their rights to an evidentiary hearing, formal findings of fact, and conclusions of law. From the time the petition has been submitted to the court up to the point at which the court enters the final decree, either party can revoke the joint petition and terminate the proceeding. Once the final decree is entered, however, it has the same effect and finality as a regular proceeding for divorce.
Joint petitions, or uncontested divorces, are less expensive and quicker. A contested divorce may cost $5,000 to $15,000 in attorney fees and take 8 to 10 months. A joint petition costs less than $2,000 and takes 60 days.
Areas of Court Authority
Besides the termination of the marriage, the majority of couples seeking a divorce will need the court to determine other issues of the marriage; child custody schedules, child support, how the couple’s property and debt is to be divided, and whether either party must pay spousal support to the other. We consider these to be the four main areas of a divorce.
1. Child Custody
Courts hearing divorce actions are also given authority to determine the custody of children of the parties, which instructs the courts that the sole consideration in making a custody decision is the best interests of the child. The order of priority for the custodian of a child begins with joint custody by both parents, then gives the priority in which potential custodians of the child are to be considered in the event the court must chose a custodian who is not a parent of the child. Under NRS 125.490(1), there is a presumption in favor of the parents sharing joint custody. The statute authorizes the court to conduct evidentiary hearings concerning any allegations of domestic violence or abductions by potential custodians; and, if clear and convincing evidence shows either domestic violence or child abduction, then a presumption arises that it is not in the child’s best interests for that parent or guardian to have custody.
The trial court’s authority with regard to child custody in a case with connections to other states may be impacted by the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), which is codified in Nevada at NRS 125A. Under this law, a child must reside in the state of Nevada at least 6 months prior to the divorce being filed for a court to made custody orders. There are exceptions to this rule.
2. Child Support
The Nevada law requires that a court granting divorce, separate maintenance, or annulment provide for the care, support, education and maintenance of any children who are issue of the relationship.
NRS sections 125B.070 through .080 set out the required methods for determining the amount of child support a parent is obligated to pay. Or, you may use our Child Support Calculator. The presumptive amounts of support, that is, the amounts a court will presume are adequate for support of a child, are based on the supporting party’s gross monthly income. Gross income is before taxes and deductions.
When the parties share joint physical custody, the district court is required to calculate child support by taking the appropriate percentage of gross income for each parent, subtracting the difference between the two, and requiring the parent with the higher income to pay the parent with the lower income that difference, Wright v. Osburn (1998), established the “child support offset”. The Wright decision held the district court has the option to adjust the amount of child support where special circumstances exist. Some of the circumstances include special needs children, providing health insurance, etc.
3. Division of Property and Debts
NRS 125.150 provides that, in granting a divorce, the trial court, shall, to the extent practicable, make an equal disposition of the community property of the parties, except that the court may make an unequal disposition of the community property as it deems just if the court finds a compelling reason to do so and sets forth in writing its reasons.
A division of property rights must be made at the time of the divorce decree, and can’t be postponed for later determination. However, where there is fraud or mistake, or property is omitted from the court’s consideration, then a party may bring an action for partition of the omitted property.
Community Property vs Separate Property. Nevada is one of the US jurisdictions that recognizes “community property” between a married couple. NRS 123.220 defines “community property” as property acquired by a couple after their marriage, except to the extent the parties have otherwise agreed in writing, or there is a court-issued decree of separate maintenance.
The types of property which may become community property include residences, improvements to property, businesses, earned income of either spouse, rents and profits, savings, life insurance, gifts and damage awards, retirement benefits earned during the marriage, social security benefits, and business goodwill.
Courts presume property acquired during marriage to be community property, stabled in Zahringer v. Zahringer (1960). In making the determination whether property is community or separate, courts look to the source of the funds used to acquire the property, not to whose name the property is vested in. If acquired by community funds or credit, it would be community property; if by separate funds or credit, it would be separate property.
If no attempt was made to keep the separate and community property segregated, and it was impossible to distinguish them, such intermingled properties are considered “community property”, Ormachea v. Ormachea (1950). Separation of the parties does not dissolve the community and does not alter character of parties’ income during period of separation. Hybarger v. Hybarger (1987).
In Malmquist v. Malmquist (1990), the Nevada Supreme Court held that community property improvements to separate property do not themselves become separate property, and that the simple reimbursement of cost is the generally appropriate manner for handling community property improvements to separate property. Reimbursement will generally also be appropriate for separate property contributions for improvements to community property.
Alimony is monetary support paid to one of the parties to a divorce. NRS 125.150 provides that in granting a divorce, the court may award such alimony to the wife or to the husband, in a specified principal sum or as specified periodic payments, as appears just and equitable.
However, drawing from Buchanan v Buchanan (1974), the trial court’s discretion is narrowed somewhat by providing some guidelines. Among the factors to be considered are: the financial condition of the parties; the nature and value of their respective property; the contribution of each to any property held by them as tenants by the entirety; the duration of the marriage; the spouse’s income, a spouses’ earning capacity, age, health and ability to labor; and the spouse’s ability to earn a living. The court also wants judges to consider the need of a spouse to obtain training or education relating to a job, career, or profession. These factors have been termed by the Nevada Supreme Court “a useful but inexhaustive list”.
Trial courts must at least consider these factors in a divorce action. Thus, in Forrest v. Forrest (1983) the district judge’s failure to award alimony was reversed where the judge gave no indication that he had considered the Buchanan factors, and suggested that alimony was at best a minor issue. Further, a court’s award of alimony cannot result in an “enormous” disparity in the status and quality of life of the two marital partners. In Heim v. Heim, the Court held that an alimony award in the amount of $500 per month was unjust and inequitable as a matter of law where the parties had been married 35 years, the wife had raised the couple’s 6 children, and the husband, who had earned his doctorate degree during the marriage, had a gross income of $6,500 per month. The court noted that even if the wife were able to earn the highest salary she had ever earned this amount combined with alimony awarded would equal only one-fifth of her husband’s income.
Although the question of alimony is distinct from that of the division of property, the Nevada Supreme Court has held that the amount of community property to be divided between the parties may be considered in determining alimony, Shydler v. Shydler, (1998). However, an award of community property cannot be used to avoid a necessary award of support. Thus, in Shydler the Court found unfair a decree which awarded community property to the husband which produced income of $100,000 annually, while dissipating the wife’s share of the property so that the husband would not have to pay spousal support. The Court reasoned that, as property and alimony awards differ in purpose and effect, the post-divorce property equalization payments payable to the wife could not serve as a substitute for any necessary spousal support. The Court found that by determining that the community property equalizing payments acted as a substitute for alimony, the wife effectively received a lesser share of the community property than the husband.
A variation of alimony is “rehabilitative” alimony, the purpose of which is to help one of the parties for a certain period of time after the decree is entered but not permanently. Thus, in Kerley v. Kerley, (1995), an award of alimony to the wife in the amount of $250.00 per month for twenty-four months following entry of the decree of divorce, where the trial court found that she needed temporary alimony because at the husband’s request she was not gainfully employed during most of the marriage.
Attorney Fees and Costs
Divorce can be expensive. Average contested cases cost between $5,000 and $10,000. Nevada law gives the trial court discretion to award “reasonable” attorney fees in the action. Besides the standard factors for determining community income, the trial court in a divorce action must consider disparity of income. If you have a spouse earning $10,000 a month, while the other spouse is only earning $2,000 a month a court will most likely award attorney fees.
In one of Nevada’s most famous divorce cases, Sargeant v Sargeant, (1972), the court ruled both spouses should have access to community funds to hire a lawyer to assert their claims. Harry Sargent was worth millions and controlled all the money. Matilda Sargent had less than $42,000 in possession. The court ordered Harry to pay over $50,000 in attorney fees. Without these attorney fees, the court felt Matilda would not be able to meet Harry on equal ground.
The first step in initiating a divorce action is the filing of a Complaint with the district court. A complaint is the official documents requesting the divorce and all claims. The court then issues a summons, ordering the served party to answer the complaint within 20 days.
Serving Divorce Papers
Parties to divorce actions in Nevada are subject to the same provisions of the Nevada Rules of Civil Procedure regarding service of process. Under Nevada Rule of Civil Procedure 4, a summons and a copy of the complaint must be served upon the defendant personally, or by leaving it with someone at his or her permanent residence. Proof of proper service is required, and if it appears there was not proper service, the complaint will be dismissed for lack of jurisdiction. Proper service of process can be challenged by filing affidavits or other proof that the defendant was not properly served. A wife was able to set aside a divorce decree where she showed that the process server had mistakenly served the wrong person, see La Potin v. La Potin, (1959).
Normally a would-be defendant cannot avoid service by deceitful means. You shouldn’t avoid service. In Fagin v. Fagin, (1975) a wife avoided personal service of process by deceitful means. The court the trial court did not abuse its discretion in setting aside husband’s default divorce decree in view of the fact that wife suffered from severe rheumatoid arthritis, was distressed by impending divorce, was unexperienced in litigious affairs and had acted on advice of counsel in avoiding service of process.
An alternative method of service where the defendant or his or her residence is difficult to locate is Service by Publication, as detailed in NRCP 4(e). The rule allowing service by publication explicitly extends its availability to divorce actions. An affidavit must be filed with the court in which the action is sought, laying out that the plaintiff exercised due diligence in trying to locate the defendant, but was unsuccessful. Upon the court’s approval, the defendant may be served by publication of the summons as provided in the Rule.
Complaint and Answer
A Complaint and an Answer are the two required pleadings in any civil action, including one for divorce.
The Complaint sets forth the relief asked, i.e. the termination of the marriage, the grounds for jurisdiction, and the grounds for the divorce. If issues of child custody, and child or spousal support are present, they should be addressed in the Complaint as well. Any allegations which might be contested, such as allegations of the grounds of jurisdiction, will usually require supporting affidavits to be filed along with the Complaint.
The Answer is the defendant’s response; it must admit any allegations that the defendant cannot or doesn’t wish to contest, and deny the others. Any allegations not denied in the Answer may be deemed to have been admitted at a subsequent trial. The Answer must be filed with the court within 30 days of proper service of the Summons and Complaint.
A party filing a Complaint in a divorce petition, or the party against whom it is filed, can immediately petition the clerk of the court for a joint preliminary injunction against any attempt to sell or give away property which might be claimed to be community property, against any molestation, harassment or stalking of the other party or any child or other relative of the parties, and the removal of any children of a party from Nevada in order to avoid a loss of custody. According to Eighth Judicial District Rule 5.85, a court before which a divorce action has been filed must issue such a preliminary injunction, which is effective immediately against the party requesting it, and effective against any other parties upon service upon them. These injunctions remain in effect until the final decree of divorce is entered.
It frequently happens that even a properly served defendant will not respond to the Summons and Complaint. In such cases, the Nevada legislature has provided that a divorce, like other civil remedies, may be obtained by default. A default is similar to winning because the other person didn’t play. In general, a default is where a party against whom a judgment is sought fails “to plead or otherwise defend” and that failure is proven by an affidavit or otherwise.
Since courts have long been cautious about rendering a judgment against a person who has not appeared, Nevada courts strictly enforce statutory requirements for a default. Thus, where a foreign defendant did not personally appear for a hearing in a divorce case, but did file responsive pleadings and entered an appearance through counsel, entering a default judgment against him was reversible error, Ogawa v. Ogawa, (2009). Courts want to allow cases to be heard and will allow defaults to be set aside. Effectively, setting aside a default opens the case.
Furthermore, default judgments cannot be entered on the judge’s own initiative against specific claims, especially child custody and support claims, as a sanction for discovery violations. Blanco v. Blanco, (2013). Courts are not to use defaults as punishment and defaults involving child custody schedules or child support are scrutinized before being ordered.
A party to a divorce action may not feel that he or she can wait for the final decree for the resolution of pressing issues such as custody of children, possession of the marital residence, support and attorney fees and other legal costs during the suit. NRS 125.040 provides that the trial court may make temporary orders with regard to these issues during the action, except that temporary child custody is dealt with by NRS 125.470. Typically, the order will be in response to a motion by one of the parties, e.g. for exclusive temporary possession of the home.
At the beginning of a divorce action, a court may, under the authority of NRS 125.150, make a temporary award to a spouse temporary alimony, or alimony for the duration of the trial. However, in Applebaum v. Applebaum, (1977) the Supreme Court rejected a wife’s claim that failure to grant alimony pendent lite was an abuse of discretion where there appeared that the wife had adequate resources to support herself.
With respect to legal costs during the action, originally Nevada courts required that the petitioning party show “necessitous circumstances” for such a temporary award. However, this is no longer required; instead, Nevada now requires that both parties be able to litigate on an equal basis, Sargeant v. Sargeant, (1972).
Case Management Conference
Nevada divorce rules requires the parties to a divorce action to attend a Case Management Conference within 90 days after filing of the answer. At this conference the parties discuss their claims and defenses, settlement possibilities, and a plan for the timing of discovery. The court finds out which issues are agreed upon and which are contested. Within 30 days of the Conference, the court is required to issue a Case Management Order detailing the nature of the case, the claims and defenses, a rough schedule for the litigation, a discovery schedule, and any temporary orders (as discussed above) the court may decide to enter.
After a divorce action has been commenced, the other party has responded properly, and any preliminary injunctions have been issued, the next step is what is known as discovery. In the discovery process, each party is required to disclose information relevant to the contested issues in the case to the other party, and each party is given certain methods by which to ascertain additional information from the other party. The discovery process in divorce cases is mainly aimed at discovering the assets and liabilities of each party, for purposes of alimony, child support, and property division, and also the fitness of each party for custody of children.
Briefly, the methods of discovery available in civil actions, including divorce actions, are as follows:
1. Interrogatories – These are written questions posed to the other party which that party must answer under oath;
2. Requests for production of documents – These are formal requests for documents which the requested party must produce if they have access to them;
3. Requests for admission – These are requests to the other party to either admit or deny certain relevant facts;
4. Depositions – The opposing party can be required to appear outside of court before the requesting party or their attorney and answer questions under oath. The transcripts of such depositions may be introduced as evidence at hearings before the court; and
5. Subpoenas – These are orders of the court requiring the presence of a party or witness at a court hearing, as requested by a party.
Nevada Rule of Civil Procedure 16.2, also sets out required information to be provided to the other party (called disclosures) in divorce actions. The Rule requires each party to complete a General Financial Disclosure Form listing their income, assets and liabilities. Each party must further submit evidence supporting the information disclosed, along with prospective witness testimony and exhibits.
Complex Divorce Litigation Procedures. Under Rule 16.2, in cases where either party, or both of them combined, have annual incomes of over $250,000, or they have $1,000,000 in individual or combined assets, or where either of them is the owner or has an ownership interest in a business, both parties, upon request of either party, must file a Detailed Financial Disclosure Form, and must also file a proposed Complex Divorce Litigation Plan, including proposals concerning the time, manner and place of discovery, proposed conferences and anticipated hearings with the court, and any other special arrangements for settlement, trial, or other resolution, at least 10 days before the Case Management Conference.
Rule 16.2(e) provides for a discovery commissioner to report to the court on discovery disputes. Where a party refuses to respond or inadequately responds to a discovery request, the party seeking discovery apply to the court for an order to compel discovery. If the court issues such an order, and an adequate response is still not forthcoming, courts have the authority to impose such sanctions, or penalties, “as are just”. These penalties can range from barring the use at trial of nondisclosed information, to prohibiting any claims or defenses by the nonresponding party which relate to the nondisclosure, to holding the nonresponding party in contempt, to, in cases of repeated failures to comply with court orders, striking the nonresponding party’s pleadings and entering a default judgment against them.
Offer of Judgment
In most Nevada civil actions, at any time 10 days or more before trial, if a party decides that it is willing to forego the trial and proceed to a final judgment upon certain terms and conditions, the party can submit a formal Offer of Judgment to the other party, as provided by NRCP 68. The other party can accept or reject the offer; if accepted the court enters judgment in accordance with the accepted offer; if rejected, the action proceeds to trial, but the party rejecting the offer may be penalized attorney fees and court costs if the judgment is less favorable to them than the Offer was.
The other party has 10 days to accept the Offer of Judgment if it wishes to, by a written notice of acceptance. On such acceptance, the court, when it enters its final decree, will enter judgment in accordance with the agreement of the parties. If no notice of acceptance is given within 10 days, the offer is deemed rejected, and the action proceeds to trial. If the property rights issue is resolved at trial in a manner less favorable to the rejecting party than the terms which it rejected, the court may require the rejecting party to pay the court costs and attorney fees of the offering party which related to the property issues which were the subject of the offer, or the court can prohibit the collection of such costs and fees by the rejecting party related to those same issues.
Divorce Settlement Agreements
Sometimes parties to a divorce reach an agreement before the entry of the decree on their issues, e.g. how some or all of their property is to be divided. Courts favor these settlements as a matter of policy. If the settlement is properly executed according to contract principles (there is a meeting of the minds and consideration, no duress or fraud, and the bargain is not unconscionable), and is approved by the court, it is binding between the parties. Until an agreement is adopted by the court into the final decree, any actions based on it must seek contract remedies.
Agreements merged into decree. Trial courts have discretion to approve these agreements, upon which event they become part of the divorce decree. Once an agreement is merged into the decree, it can only be modified or enforced through actions to modify the decree.
If the divorce action proceeds to trial, it will proceed much as a trial in any type of civil action. There will be opening statements, testimony, admission of evidence, closing arguments, and findings of fact as to the issues. It of course will be presided over by a judge, who will supervise the trial and decide any maters of law. Issues of fact, such as what amount of alimony would be just and equitable under the circumstances, may be decided either by the judge or by a jury. Nevada is one of a minority of states which grants a right to a jury in divorce actions. However, in divorces decided in the Family Court in Clark County, as described earlier, there is no right to a jury; every aspect of the case will be determined by the judge.
In the course of the trial, the judge may make rulings on such things as admissibility of evidence, or, as discussed earlier, may issue temporary orders on matters such as custody, which a party may disagree with.
After listening to all witnesses and reviewing evidence, the judge will make a final binding decision on all claims left in dispute. The judge will enter a final decree terminating the marriage and adjudicating the rights and obligations of the parties. In a divorce proceeding, the final judgment is one that finally resolves all issues pertaining to the dissolution of the parties’ marriage.
The decree will provide details on child custody, visitation schedules, how the properties are to be divided, who pays who alimony, how much child support is to be paid, etc.
A party who is dissatisfied with the final outcome has three avenues to challenge a final decree.
First, within 10 days of a final judgment, a party who believes that there was fraud, mistake or some other irregularity in the process leading up to a divorce decree can move for reconsideration by the judge.
Second, if 10 days have expired since the final judgment, the next possible avenue for redress is to move, under NRCP 60(b), for Relief from Judgment. Rule 60(b) provides that upon a party’s motion and upon such terms as are just, the court may grant relief from a final judgment for reasons of, among other things: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence not discovered in time to move for a new trial; or (3) fraud or other misconduct. Under NRS 125.184, this relief is available both in ordinary divorce actions and in summary proceedings for divorce. There are time limits: “The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than 6 months after the proceeding was taken or the date that written notice of entry of the judgment or order was served.”
The majority of divorce cases which have determined the issue of the availability of 60(b) relief have involved claims of fraud in the proceedings. An example of such fraud would be perjured testimony before the court, or misrepresentations in the negotiation of child custody or property settlement agreements which are incorporated into decrees.
Finally, if a party does not opt for a reconsideration or for relief under 60(b), or such motions are denied, or if the party believes that the trial court made an erroneous ruling on a matter of law, it can appeal for review of the trial court. Usually the appeal will go to a Nevada Court of Appeals, although there is a mechanism called a “proper person review” for appealing to the Nevada Supreme Court directly. On appeal, the reviewing court will use one of two standards in reviewing the trial court’s orders and rulings. Rulings of law will be reviewed de novo, that is, as if the issue were before the appellate court for the first time. However, in deciding issues of fact which are before it, appellate courts grant the trial court a certain amount of “discretion,” within which the reviewing court will not reverse the ruling, even if it might disagree with it. Therefore, the appellate court will only overturn a trial court’s finding of fact if it finds an abuse of discretion.
Enforcement of Orders
Trial court judgments in divorce matters concerning judgments for alimony and child support can be enforced by the same methods available for other monetary judgments listed in NRS chapter 21, such as attachment of assets and wage garnishment. With respect to child support, power is given to the Child Support Enforcement division of the Nevada Department of Health and Human Services to enforce child support awards through deductions from payroll checks, withholding of tax refunds, and garnishment of bank accounts, as well as criminal liability.
Failure to comply with decrees can also be punished by the court through a finding of contempt, which can result in jail time. In James v. James, (2014), where a trial court was held not to have abused its discretion where it held the appellant in contempt for failing to pay his monthly child support obligation, and ordered appellant’s wages garnished to cover this obligation. Contempt is also available to enforce court orders for property division. In Smith v. Smith (1984), the Supreme Court affirmed a trial court’s order holding a husband in contempt for failure to execute a promissory note pursuant to Marital Termination Agreement dividing the couples’ property.
Modifying Divorce Orders
Modification of orders and decrees and continuing jurisdiction. Especially with regard to alimony, child support, and child custody, but also on issues of property distribution, courts who have issued divorce decrees are frequently petitioned to modify those decrees. With regard to the first three, the Nevada statutes explicitly give authority for the court to do so.
NRS 125.510 provides that a court may at any time modify or vacate its orders on child support and custody, even if the divorce was obtained by default without an appearance in the action by one of the parties. With regard to child support, a court is required to review a child support order it has made every 3 years, and make such modifications and adjustments as the best interests of the child requires, if asked to by certain social services agencies or by the child’s parent or guardian. As to custody, NRS 125.510(b) subsections (2) and (3) allow the court to modify or terminate custody. As to alimony, NRS 125.150 allows for modification of decreed alimony for unaccrued payments.