How to not lose your house in a divorce

(See also Negative Equity and Divorce)

The court has the ability to grant “exclusive possession” of the marital residence to one of the parties while the divorce proceedings are still in progress. This means that the evicted party cannot enter the house without the permission of the occupant and can literally be arrested for trespassing. That also means you cannot enter and take any of your possessions from the house.

According to this article  in the Las Vegas Review Journal, fewer than 20% of motions for exclusive possession are denied. Meaning you have an 80%+ chance of being evicted from your own home should a motion for exclusive possession be filed against you. 

One of the judges in the article cites three grounds for allowing divorcing couples to stay in the marital home: 1) lack of financial resources to establish two separate households 2) the best interests of the children and 3) no history of domestic violence. 

So the judge has given clear guidance on how to stay in your home:

1) demonstrate a lack of resources to establish a second household (which is why lawyers tell you NOT to move out of the home - I guess this would even extend to staying temporarily at a family or friend’s home),  

2) demonstrate it is in the best interest of your kids to stay home (can be tough to prove - expect her to argue that the tension you both living under the same roof is psychologically damaging the children)

3) avoid a domestic violence charge (another tough one - there are numerous cases of false domestic violence charges AND judges erring on the side of caution even without physical evidence of any abuse - see this link for a wake up call).

(Of course, when the divorce is finalized you will need to give half of your equity in the house to your ex-spouse - this might entail selling the house or, if you are very lucky, you might be able to re-finance the house and buy out her equity - if you ever agree on what the equity is worth).

In my case, I had moved out of the house to escape constant verbal abuse and had rented a single room in a friend’s house. Not only did the judge award exclusive possession to my soon to be ex-wife but also ordered me to continue paying all mortgage and utility payments as well as child support. The judge also refused to order my ex to get a job - despite the fact that the children were teenagers and she had a teaching license. My ex ended up living in the house for almost 3 years rent free without any bills while collecting child support and taking up to 90% of my net income every month. Welcome to the “justice” system. (BTW, she also made it difficult for realtors to show the house to potential buyers - even when the court ordered that the house be placed on the market).

Motion to Show Cause

A motion to show cause (why you should not be held in contempt) is simply a claim by one party that the other party has violated the court’s orders and should be required to a give a reason why they shouldn’t be held in contempt (and penalized) by the court. Examples could include hiding assets, failing to provide documents, denying visitation, not paying child support or alimony, or violating a restraining order.

The court has wide powers to punish someone who disobeys its order, including financial penalties and jail time. The court usually gives someone a chance to remedy the behavior (such as paying child support arrears and attorney fees) before ordering jail time. Judge Pomrenze of the Clark County Family Court in Las Vegas Nevada is infamous for jailing a lawyer who argued with her (she refused to hear his motion without an affidavit of financial condition). Contempt extends to violating a judge’s orders both directly (i.e. inside) and indirectly (i.e. outside) the court.

The Nevada Revised Statues (NRS 22.100) indicate the maximum penalty for a contempt is $500 or 25 days in  jail. However, NRS 22.110 goes on to say “when the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he performs it”. Ouch!

Motions for contempt in divorce cases are often brought against fathers for failing to pay child support or violating protection orders. In my experience, the court is very reluctant to find a mother in contempt for violating a visitation order (the most common complaint of fathers).

Powerless Fathers

Glenn Sacks reports on the case of a UK judge who concludes that fathers are powerless against vengeful mothers (originally reported in the UK’s Daily Telegraph).

The man’s 14-year-old daughter, who cannot been identified, had been influenced by a “drip, drip, drip of venom” from his ex-wife, who wanted to deny him his paternal rights.

Lord Justice Ward said the case was bordering on the scandalous but the court was compelled to act in the interests of the child.

Because of her mother’s “viciously corrupting” influence, it would cause the teenager too much distress if she spent time with her father, he said.

In London’s Civil Appeal Court, Lord Justice Ward said: “The father complains bitterly, passionately, and with every justification, that the law is sterile, impotent and utterly useless.

”But the question is ‘what can this court do?’ The answer is nothing.”

This generated some sad tales and interesting perspectives on Sacks’ blog, including this one by Tim O’Brien:

You’re saying that it’s too hard and too traumatic to change custody for that kid. So you’re saying that the status quo — living with a mom who ONLY puts her own needs above her child — is somehow better?! In the short term, yes it’s incredibly difficult, but in the long term all you’re doing is putting off this kid dealing with her mother’s abuse until she’s 30.

Just because it’s hard doesn’t mean it’s wrong.

And also, had they upheld the law early on, the situation wouldn’t be as dire as it is. The reason these women interfere with custody is because THEY KNOW there will be no consequences, no risk.

and this disturbing tale by stillsober34:

The mother of my child made many false accusations and alleged that I was a drunken, doped up father, incapable of taking care of my child 7 years ago. With an ex-parte court appointment (that I was never aware of), she gained temporary sole physical custody that was to return to normal “visitation” after several “supervised visitation” visits and a drug assessment for both parents. I complied, paid the fees to do supervised visitation as ordered, but the ex simply refused to participate. I tried using the “self help” window available at the family court house, but it is somewhat useless. I had no money for a lawyer because of overwhelming child support payments and a low income. I did what I could and sent letters, and made lots of calls to try and talk to both the Ex, and my child, but the letters and calls were never returned. Six years later, I managed to make enough money to pay off the back child support arrears, amounting to about $6,000.00. The ex immediately took this money, hired another lawyer and had her new husband file a petition to terminate my parental rights (to adopt my child) for the reason that I haven’t tried to contact my child in the last twelve months. It didn’t occur to me to send the letters certified, so I have no proof. The judge dismissed the petition initially, but the ex and her attorney demanded a full trial. Now, after 11 months of therapists, evaluators, and court dates for trial pushed out 5 times, I still have the burden of proof to say I tried to contact my child, when all this time she was kept from me. I am now in debt for another $16,000.00 for all of this, and my now 12 year old daughter hates my guts because all she knows is what her mother has told her. I have a therapist interviewing everyone involved to try to prove my child was alienated, but I don’t seem to be getting anywhere. Even if I “win” and manage to keep my right to be a Father intact, I face the overwhelming task of regaining the love and trust of my child. I love my kid, but I wish that I had never procreated in the first place. My life has been one of poverty, pain and hell for 8 years now. People wonder why Fathers are angry? It is difficult to continue to fight the good fight and remember the reasons for it. How many Dads just give up the fight, knowing they can’t win?
Like it or not, the feminist machine is wrong. Parental Alienation is real. Look up “Malicious Mother Syndrome”, it reads like a resume for my ex wife. No feminist knows the real pain of continuous grieving for a lost child. I am not even allowed to tell my child the truth (provided I could even speak to her). There is no Patriarchy. It has been dead a long time, and just like Elvis, no matter how many times it is mentioned, it isn’t coming back to life. Welcome to the MATRIARCHY gentlemen. What now? How much pain can we take before justice is served?

Alimony in Nevada

Alimony (often known as spousal support or spousal maintenance) is alive and well in Nevada. Unlike other states, there is no statutory formula for calculating alimony in Nevada - meaning its all up to the discretion of the judge and represents a huge fee generating opportunity for lawyers.

There was an attempt to devise a alimony formula in 1997 (known as the Tonopah formula). The formula takes into account the marriage duration and lower earning spouse’s education, disability status, and age.  The calcuation can range from 0% to 50% of the difference in incomes (after deducting child support), increasing with a longer marriage, older spouse, more disability, and less education. In their wisdom, however, the Nevada Supreme Court has banned family court judges from using the formula to determine alimony.

The result is a list of “factors” to be weighted. The factors vary from case to case and even the same factors have been given more or less weight in different cases. Thus, the judge must weigh each of the relevant factors in determining an alimony award and duration.  These factors include:

• age and health of the weaker party (usually the wife)
• property/assets of the wife
• whether wife contributed to the development of the husband’s career
• husband’s income
• wife’s premarital job training
• wife’s job and income potential
• kids
• marriage duration

The wife can also be awarded “rehabilitative” alimony to enable her to train to re-enter the workforce. Alimony can also be awarded indefinitely (although this seems to be getting rarer).  Alimony is also taxable to the recipient and tax deductible by the payer (actually lowering your adjustable gross income).  

In my experience, much money can be saved by agreeing to use the Tonopah formula and moving on. Litigation over alimony is costly (to gather evidence on all the factors) and the outcome is extremely uncertain because the judge can rule in almost completely arbitrary manner (and doesn’t have to justify his or her decision). Unfortunately, many lawyers like to tell their clients they can get a much better deal than the formula (my ex was given a number almost double that of the formula and eventually received about 50% more at great cost to us both). My advice go with the formula or something close and get a stipulation (agreement) in writing filed with the court ASAP.

Personally, I believe that alimony is simply “child support for adults” and, except for a few extreme cases, has outlived its used-by date.  

Stop Loss

I went to the movie Stop Loss last night. One of its messages was how the army uses the full power of the state to coerce soldiers into serving another tour in Iraq.Basically you sign a contract to serve 5 years and then the President tells you you can’t leave and have to take another tour of duty. If you refuse you are branded a fugitive - the only option being to flee to Canada or Mexico.

In my mind, non-custodial fathers are in exactly the same position. A parenting or divorce agreement can be changed at any time and if you rebel you get slapped down by the full force of the system. Except you can’t flee to Canada because they have the same system!

I had visitation built into a parenting plan and final decree but the judge refused to enforce visitation because in her words, “they are old enough to choose if they want to see you”. So much for all the courts BS about mediated parenting plans etc. Of course, deciding not to pay child support would result in all sorts of penalties, including imprisonment.

The Dissident Feminist

An interesting discussion over on Glenn Sacks’ blog where two pro-feminist males have agreed to a civilized debate with men’s rights activists.

Sad but true…

A reality check from Lisa Scott’s Real Family Law website:

WHAT TO DO BEFORE THE RESTRAINING ORDER COMES

Adapted from Presentation Given by Lisa Scott at the Father’s Rights Seminar, Sponsored by FR Investigations, August 4, 2004, Auburn, WashingtonEven though this talk is directed mostly at men, everything that can happen to a man in this system can happen to a woman. Women should not be complacent, or even gleeful, when these things happen to men, because they could be the next to be falsely accused, suffering criminal arrest, incarceration, removal from home and denial of access to children.

Women should not make men the enemy, any more than men should make women the enemy. Women should stop and think, how would I react if I was taken away from my children and told I should be happy to get to be with them every other weekend?

Repeated studies show that children of divorce are most damaged by high conflict between their parents. If parents would just call a truce and agree to do what’s best for their children, there would be a lot less fighting. Unfortunately, the system tends to encourage custody battles, because the winner not only gets the kids, but usually the house, and of course child support. Plus, the parent who has the children most of the time has the most control over what happens to them. As long as the winner is rewarded with the goodies, there will continue to be wars fought over the children.

Protection order against domestic violence

Even a casual search of the internet will reveal much about the misuse of temporary restraining orders (TRO) in divorce court. Judges tend to “err on the side of caution” when a claim of domestic violence is made and tend to issue more temporary protection orders than they reject (TPO). Given there are no consequences for making false reports then it should come as no surprise that filing for an order of protection for domestic violence or OPDV (as it is known in Nevada) is a common tactic for female litigants. Maybe she also gains some sort of sick satisfaction knowing that a deputy has served him the notice of a hearing for a protection order at his place of employment.

Having the right attitude…

Here is a slightly cynical take on the Family Court system by DanH over on a Glenn Sacks blog post:

1. Keep cool and keep your head and your wits about you.
2. Men only find this site AFTER they have had the crap kicked out of them.
3. In Family Court and in front of any state family agency, you have zero constitutional protection or rights and you are presumed totally guilty by 100 miles before anyone opens their mouth.
4. Judges, prosecutors, and others will totally ignore black-and-white law if necessary to make you guilty.
5. The woman can lie through her teeth, be proven to be a total liar but not be held accountable for it, and you are still adjudicated guilty.
6. You will never see a dime of what you pay out, no matter who wins, who was proven wrong, or who did what.
7. Family Court (and bankruptcy) attorneys are the dumping ground for D+ attorneys who cannot make it where the real money is. Interview ten (10) before you make your selection from the top two.
8. Try to sue in Superior Court for everything you need done instead of Family Court.
9. She will get free legal representation and you will pay every dime of yours.
10. If she moves to a different state, you start from scratch, including new lawyers and new legal fees from ground zero.
11. Figure about 2 years to get this straightened out.
12. Please make a contribution to the California Alliance for Families and Children (http://www.cafcusa.org/contribution.aspx). They have the only registered state lobbyist (Michael Robinson) in the United States of America working to stop the anti-male, anti-husband, and anti-father laws getting enacted and reversing those already on the books. It’s run on a shoestring and needs all the help we can give to keep them pounding away for us.

Custody

In theory, Nevada awards custody according to the “best interests of the child”. While I believe equal parenting is almost always in the best interests of the child, I deliberately chose to not contest physical custody in my own case. Let me explain my thinking so you can apply it to your own situation.

First, my (highly experienced) lawyer told me not to bother, which did not inspire me with confidence. Second, there is a low probabiliy of success. There are no readily available statistics on custody in Nevada but data in other states suggests that fathers receive sole custody in only 5-10% of cases. Third, the cost can be prohibitive. According to one site, the cost of contesting custody is “the cost of a new car” (i.e. tens of thousands of dollars). Fourth, the time, which can be as long as 18 months or more. Fifth, the emotional distress on the children of contested custody. Sixth, the fact that child support is not automatically reduced in Nevada even if you have 50% custody, and seventh, the liklihood that my ex would attempt to accuse me of domestic violence to win custody.

All unresolved custody issues must go through court-ordered mediation. At this session, I basically agreed that the ex could have sole physical custody (but joint legal custody) and outlined a visitation schedule. The mediation agreement was presented to the court, signed by the judge, and entered as a court order.

Physical vs. Legal Custody

I do have joint legal custody of my children - meaning (in theory) that I have an equal say on medical, religious, and educational decisions.

The reality

The reality is that I have not seen my children for 18 months. They started not wanting to meet me for visitation (no doubt encouraged by my ex). When I petitioned the court to enforce visitation the judge said they were old enough to make up their own mind whether they wanted to see me or not (thus displaying a complete ignorance of the concept of parental alienation).

My ex has also gone ahead and ordered orthodontic procedures worth thousands of dollars without my consent and has attempted to have the court order me to pay half of $18,000 towards a summer camp that I did not consent to. Of course, I do not receive any school reports or notifications of school events. I learned through the newspaper that my daughter received a national merit scholarship.

I deeply regret not having contact with my children during this period of their life. There is no recognized path to regaining contact and I only hope that they will attempt to contact me some time in the future. I continue to send them birthday and Xmas gifts and monitor their school progress.

I’m not sure I would do anything differently - my jaded take on the legal system is that custody is a wonderful way for lawyers to run up billable hours but most of the time the result will not change (especially given my ex was a stay at home mom for the entire marriage and not addicted to anything).

Why does contesting custody cost so much and take so long?

A judge must order an evidentiary hearing to determine custody if the parties cannot agree. Both sides may engage in discovery (see later post on discovery) which can take months to gather relevant documents or take depositions. It is also common to engage expert witnesses and the court itself may order an independent evaluation (paid by the parents). Given that experts must be paid and that both lawyers will charge for time in depositions and preparing/gathering documents this can quickly become very expensive.

Relevant Law

Custody law in Nevada is governed by NRS125 (relevant parts reproduced below).

NRS 125.480 Best interest of child; preferences; considerations of court; presumption when court determines that parent or person residing with child is perpetrator of domestic violence.

1. In determining custody of a minor child in an action brought under this chapter, the sole consideration of the court is the best interest of the child. If it appears to the court that joint custody would be in the best interest of the child, the court may grant custody to the parties jointly.

2. Preference must not be given to either parent for the sole reason that the parent is the mother or the father of the child.

3. The court shall award custody in the following order of preference unless in a particular case the best interest of the child requires otherwise:

(a) To both parents jointly pursuant to NRS 125.490 or to either parent. If the court does not enter an order awarding joint custody of a child after either parent has applied for joint custody, the court shall state in its decision the reason for its denial of the parent’s application.

(b) To a person or persons in whose home the child has been living and where the child has had a wholesome and stable environment.

(c) To any person related within the third degree of consanguinity to the child whom the court finds suitable and able to provide proper care and guidance for the child, regardless of whether the relative resides within this State.

(d) To any other person or persons whom the court finds suitable and able to provide proper care and guidance for the child.

4. In determining the best interest of the child, the court shall consider and set forth its specific findings concerning, among other things:

(a) The wishes of the child if the child is of sufficient age and capacity to form an intelligent preference as to his custody.

(b) Any nomination by a parent or a guardian for the child.

(c) Which parent is more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent.

(d) The level of conflict between the parents.

(e) The ability of the parents to cooperate to meet the needs of the child.

(f) The mental and physical health of the parents.

(g) The physical, developmental and emotional needs of the child.

(h) The nature of the relationship of the child with each parent.

(i) The ability of the child to maintain a relationship with any sibling.

(j) Any history of parental abuse or neglect of the child or a sibling of the child.

(k) Whether either parent or any other person seeking custody has engaged in an act of domestic violence against the child, a parent of the child or any other person residing with the child.

5. Except as otherwise provided in subsection 6 or NRS 125C.210, a determination by the court after an evidentiary hearing and finding by clear and convincing evidence that either parent or any other person seeking custody has engaged in one or more acts of domestic violence against the child, a parent of the child or any other person residing with the child creates a rebuttable presumption that sole or joint custody of the child by the perpetrator of the domestic violence is not in the best interest of the child.