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Divorce

The Top 5 Myths About Divorce

We don’t know how many times we have heard incredibly interesting legal theories in consults, mostly from “the internet” or “in my friend’s divorce this happened…” There are many misconceptions and myths out there about what happens in a divorce and we would like to debunk those myths. We can only speak from our expertise in regards to Nevada family law, as each state’s laws are different.

So, here are top 5 myths that we hear most often in regards to Nevada divorce law:

A child gets to choose who they live with if they are 13 or older

In Nevada, this is false on many levels. First, Nevada has no set age of when a child may assert of preference. NRS 125C.0035(4) (a) states that the court may consider a child’s preference “if the child is of sufficient age and capacity to form an intelligent preference as to his or her physical custody.” Our office has had children as young as nine talk to the judge and we have had as old as fifteen be rejected to talk to the judge. Second, a child’s preference is not determinative. It is just one of many factors the Court may consider in making a child custody determination. It is ultimately up to the judge to decide in consideration of all of the best interest factors outlined in NRS 125C.0035(4). In sum, if your child keeps telling you they want to live with you, it is not a slam dunk case that you will win if you go to court.

My Spouse is not entitled to my Retirement Accounts because they are only in my name

Our team has done many consults where this is completely misunderstood and the client is not so happy when they are told that their spouse is entitled to 50% of the community property portion of their retirement account. In Nevada, community property law applies to all assets and debts acquired during the marriage, regardless of whose name is on the account. Note, that it is only 50% of the community property portion of the account; contributions made before marriage are still separate property, you just bear the burden to prove that amount.

If I move out, the other party gets custody of the kids

This was addressed in one of our previous blogs, but we feel it is important to address again. The law in Nevada for making a custody determination in a divorce, the standard is best interest of the children. There is no factor in NRS 125C.0035(4) that states “if the parent moves out of the marital home, it is deemed not in the best interest of the children for that parent to have custody.” We also have never had a judge rule against a client in regards to custody solely because he or she left the marital residence.

I owned it before marriage, so it is my separate property

Generally, this is true; however, if you co-mingle that property after marriage, it is presumed to be a gift to the community and it is now community property. We see this often with regards to real property when the parties refinance a home owned by a spouse before marriage and during the refinance the spouse is added to title. You have now just converted that home to community property. (If the home is put in joint tenancy, there is an exception). The same applies to vehicles, bank accounts, etc. Think twice before you put your spouse on title to an asset if you owned that asset before marriage.

My spouse cheated, so they should get nothing

Nevada is a no fault state, so actions during the marriage that may (or may not) have led to the divorce do not have any bearing on the division of the community estate. You are not entitled to more money because your spouse cheated. Now, there is a concept called marital waste that allows for an unequal division of the community estate, but it applies in very limited circumstances and carries a high burden of clear and convincing evidence to prove that in court. So, for example, if your spouse spent $5,000 of community money to go on a vacation with their new significant other, you could request the court reimburse you your community property share of those funds (which would be $2,500).If you would like to find out more information about divorce and how to be prepared, give our office a call today for a consultation.

By Andriea Aden
June 12, 2019

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