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.  

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.

Emergency motions

Any time during the divorce proceedings, either party may file a motion with a request for an order shortening time (OST).  This basically requests the judge to sign an order that allows the motion to be placed on the judge’s calendar as soon as possible.

Obviously, an OST is very important if some issue is time sensitive and requires the court to make a quick decision. Normally, a delay of 4-6 weeks can be expected after filing a motion - whereas 1-7 days might be more common for a motion with an approved OST.

In my experience, my ex has filed three OSTs that the judge has granted - one claiming the children needed “urgent” psychological treatment because I cut off their cable, and the other because my ex needed a ruling to meet a college application deadline. In my opinion, the OSTs were both bogus and used to get other issues in front of the judge while citing an ”emergency” involving the children.  

My sole request for an OST to order production of discovery documents immediately before trial was denied - in this case her lawyer had provided zero responses to my discovery requests just two weeks before trial and had not submitted a pre-trial memorandum as required by court rules. My request was denied despite the fact that I had no information to make a case.   Her counsel then filed a motion under OST claiming that he had not received certain discovery documents (from the hundreds of pages I had submitted) and the judge not only granted the OST but postponed the trial for six months after the hearing!

LESSONS LEARNED 

What can I conclude from this? OSTs are solely at the discretion of the judge. Any OST that screams about an emergency (physical or financial) for a wife or children will likely be granted. I tend to imagine that judges use the “headline test”, thinking, “would I like to see this story on the front page on the newspaper in the morning?”.

Procedural motions are unlikely to be granted (unless you are a lawyer who has donated to a judge’s election campaign).

 Just my $0.02 worth - comments always welcome.

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.

 

Child support

In my experience, child support is one of the least contested areas of family law (as opposed to custody and visitation, which will be the subject of a later post). This is chiefly because the legislature has enacted a statute, NRS125B, that provides a formula for determining child support obligations as well as allowing for deviations from that formula. Formulas provide fewer billable hours for lawyers and thus lawyers have less incentive to provoke litigation in this area.

Temporary support orders

A temporary support order is simply a way of resolving a couple’s financial  issues until a final decree is issued. Sounds simple, doesn’t it.

Part 4. Choosing a lawyer

Much has been written about choosing a divorce lawyer (for instance here, here, and here). I am becoming something of an expert on the subject (having used/hired five or six different lawyers) and represented myself for the majority of the time in my case.