Limits to Discovery

In a previous post , I provided an example of a request for production of documents in pre-trial discovery. In this post, I consider the limits to discovery.

As we saw, discovery can be conducted with a request for production of documents (an RFP), through interrogatories (literally twenty questions), and depositions (taking oral testimony).

Pre-trial discovery has often been labelled as “fishing expedition” because of the breadth of requests that can be made. For instance, you can ask for all of your spouse’s payslips for the past five years. At the end of the day, the trial judge (or discovery commissioner) is the only one that can determine if your discovery requests are excessive.  You will need to petition the court (via a motion) for the judge to make a ruling.

In general, the court may curtail the scope of discovery “if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.”   Burden refers to time, cost to dollars, and instrusiveness to the notion of a right to privacy. For instance, should your ex-spouse be able to read all of your emails since your separation?  

Something is discoverable, “if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement” and this is usually interpreted very liberally - it does not have to be something that can introduced into evidence at the trial. At the end of the day, the judge (or discovery commissioner) will have to make a determination on how burdensome, costly, or instrusive the request and the benefit of the insight that the requesting party may gain.

The judge may be particularly sensitive to whether the same information could be obtained another way or whether the request is duplicative. For instance, requesting five years of payslips to determine your income when the same information is available through the tax returns you have already provided may be seen as unnecessarily burdensome.  Once again it is up to the judge.

On the bright side, priveleged information is generally not discoverable (such as a letter between you and your lawyer or a conversation between you and your doctor).  

Dating during divorce

A surprising number of searches that lead to this blog ask the question “when can I date after filing for divorce?” The short answer is that Nevada is a “no fault” state so you are not required to show fault in order to be granted a divorce - you only have to live apart for more than a year or show “incompatibility”.

The more difficult question is whether flaunting your dating behavior is more likely to a) cause your spouse to launch hugely expensive legal proceedings to “punish” you or b) cause the judge to think you are the “bad guy” and rule against you on major issues (which pretty much means alimony as child support and property division are formula-based).

The best divorce is an uncontested divorce where everything is agreed up front, you don’t go to court, and you don’t spend a fortune on lawyers. You can be done in a matter of days or weeks. In this case, I would strongly recommend not dating. On the other hand, if your spouse has already pulled the “nuclear” option by contesting the divorce and the case is dragging on for months and years then dating probably has more upside than downside.

Two points of warning: 1) try to understand what went wrong in your marriage and fix it (the failure rate for second marriages is higher than the first and you don’t want to make the same mistake twice) and 2) your new partner might not like the amount of time you need to spend dealing with your divorce proceedings.

Negative Equity and Divorce

(See also “How to not lose your house in a divorce“)

The housing crisis has put a large number of homeowners in Nevada underwater - that is they owe more than their house is worth and have negative equity in their home. What happens to this negative equity when a couple divorces?

The short answer is that as a community property state, any assets or liabilities are split equally. So, the negative equity is also split evenly.

However, there are a variety of alternatives for dealing with this. The simplest method is to sell your house - with half of the deficit being assumed by each party - there is then no argument about the amount of negative equity. The problem is that this is a “joint and several” loan so the bank can pursue either party for repayment and the amount may force both of you into bankruptcy.

Another alternative is for one spouse to transfer their ownership interest to the other in exchange for a lesser claim on some other marital assets. For instance, if there is $50,000 of negative equity and a $100K in a 401k account then a spouse may choose to claim only $25,000 of the 401k (instead of $50K) to account for his or her negative share of home equity. The bank would still need to agree to hold the spouse harmless for the debt (which may be unlikely) or the debt could be refinanced (also unlikely) to remove a spouse’s name - the costs of refinancing could be split equally. Of course, this method also assumes the spouses can agree on the amount of negative equity.

***NOTE: some of the joint liability issues will be avoided if the mortgage is just in one spouse’s name - then the other spouse can sign a ‘quit claim’ deed to give 100% ownership to the spouse with the mortgage.

A third  possibility is to agree to sell the house at a later time when equity is positive and split the proceeds. This can be difficult if one spouse continues to live in the house and pay down the mortgage. The agreement may just be to allow any future deficit or gain on the house to be retained solely by the occupying spouse. The downside is that both spouses are still liable for the mortgage. If the retaining spouse misses payments or sells at a loss then the assets of the other spouse are still at risk.

Another possibility is for the house to be rented with the all costs of holding the house (mortgage, taxes, repairs, insurance) not covered by the rent split evenly between the ex-spouses - this would minimize the financial burden until the house could be profitably sold. However, the same problem arises of not trusting the other party to make timely payments but still being liable for the mess.

The final option is to declare bankruptcy. Nevada law allows a certain amount of your property to be exempt from debtors (see here). Since 2005, you cannot apply for Chapter 7 bankruptcy (liquidation of debts) if your income exceeds the median income of a similar-sized family in your community and you have more than $100 per month in “disposable” income. In that case, you need to file for Chapter 13 (reorganization of debts) and create a payment plan for your creditors.

In my case, my ex-wife refused to show the property to prospective buyers and kept the place untidy when possible buyers did eventually get in. It took over a year to close the sale with an out-of-town buyer with equity falling from +100,000 to -$20,000. The very next week the house next door closed for over $100K less than our sale price. Talk about dodging a bullet! With more than $100K of negative equity I think I would have been forced into bankruptcy. As it was, the loss was split 50:50.

Dividing community property - the A/B list

How do household items get divided in a divorce? Usually the big ticket items, like the house, car, and pensions can be valued and a fair settlement reached. For instance, the Kelly Blue Book price of a car can be used to derive a value and one party can pay the other party their half share.

Often, however, smaller household items are more difficult to separate - the three TVs, 2 sofas, 3 beds, 2 sets of cutlery etc. While it is possible for two parties to sit down and agree on a division, it can often be difficult to split possessions in the heated atmosphere of a divorce.

One way to ensure a fair division is the so-called A/B list. In this process, one party prepares two lists of items that he or she thinks may fairly divide the household assets. The other party is then free to choose either List A or List B. Parties are then free to exchange items on their respective list by mutual agreement.

Notice that this system means the list preparer will be unlikely to put all the “good stuff” on one list because if the list is unbalanced the list selector will choose that list. Thus the division is likely to be fairly even.

In my case, I asked for an A/B division and the judge ordered it. My ex then failed to prepare the list, was re-ordered to do so by the judge, prepared a list and then withdrew the list before trial. After a five hour trial, my lawyer suggested dropping the list all together because the judge was threatening to extend the trial into another day (perhaps postponing the divorce for another six months).  I agreed in order to finalize the divorce on the day (and end extortionate temporary support payments) but received no household items (other than those in my possession that I had managed to throw in my car when I moved out.

I think this illustrates the dynamic nature of divorce proceedings and how a lengthy (and thus costly) legal process can sometimes trump other considerations (such as the right to half your household property).

Leaving Las Vegas: Relocation or Move-Away Issues

Can a custodial parent leave the state of Nevada after divorce?

In theory, the answer is “not without the consent of the noncustodial parent or permission of the court”. In reality, the court rarely denies permission.

The relevant statute is:

NRS 125C.200  Consent required from noncustodial parent to remove child from State; permission from court; change of custody.  If custody has been established and the custodial parent intends to move his residence to a place outside of this State and to take the child with him, he must, as soon as possible and before the planned move, attempt to obtain the written consent of the noncustodial parent to move the child from this State. If the noncustodial parent refuses to give that consent, the custodial parent shall, before he leaves this State with the child, petition the court for permission to move the child. The failure of a parent to comply with the provisions of this section may be considered as a factor if a change of custody is requested by the noncustodial parent.

Courts in Nevada claim to rely on the “Schwartz factors” outlined in a 1991 Nevada Supreme Court case:

1. the extent to which the move is likely to improve the quality of life for both the children and the custodial parent;
2. whether the custodial parent’s motives are honorable, and not designed to frustrate or defeat visitation rights accorded to the non-custodial parent;
3. whether, if permission to remove is granted, the custodial parent will comply with any substitute visitation orders issued by the court;
4. whether the non-custodian’s motives are honorable in resisting the motion for permission to remove, or to what extent, if any, the opposition is intended to secure a financial advantage in the form of ongoing support obligations or otherwise;
5. whether, if removal is allowed, there will be a realistic opportunity for the non-custodial parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship with the non-custodial parent.

The court also listed six sub-factors for deciding factor (1) “the extent to which the move is likely to improve the quality of life for both the children and the custodial parent.” These are:

1. whether positive family care and support, including that of the extended family, will be enhanced;
2. whether housing and environmental living conditions will be improved;
3. whether educational advantages for the children will result;
4. whether the custodial parent’s employment and income will improve;
5. whether special needs of a child, medical or otherwise, will be better served; and
6. whether, in the child’s opinion, circumstances and relationships will be improved

Increasingly, though, the best interest of the child has become synonymous with the best interest of the custodial parent (usually the mother). In Trent v Trent (1995), the Nevada Supreme Court warned District Courts against using the relocation statute “as a means to chain custodial parents, most often women, to the state of Nevada”.  Since Trent, proposed moves have almost always been approved when the primary custodian is seeking to relocate and has a “good faith” reason (other than seeking to remove the non-custodial parent from the child’s life). McGuiness v McGuiness [1998] even goes so far as to venture that alternate methods of maintaining a meaningful relationship include “telephone calls, email messages, letters, and frequent visitation”.

The Case of Joint Custody

In cases of shared or joint physical custody the court has a little bit of a problem because the relocation would essentially sever any joint custody arrangements.   In Hayes v Gallacher (1999) the Nevada Supreme court holds that “even if a relocating parent is moving for illegitimate reasons or to an unreasonable location, that parent should retain primary custody and be allowed to relocate with the child if he or she shows that the relocation would be better for the child than a transfer of primary custody to the other parent.” So basically a full custody hearing is held to award primary custody to one of the parents. In this case, the father had a finding of domestic violence that created a presumption against custody even when the mother’s foreshadowed move to Japan was seen as unreasonable.

In the same decision, the court also advocated the American Law Institute’s view on primary physical custodty, namely that: “A parent who has been exercising primary residential responsibility for the child should be allowed to relocate with the child so long as it is for a legitimate purpose and to a location that is reasonable in light of the purpose. A relocation is for a legitimate purpose if:

• it is to be close to family or other support networks,
• for significant health reasons,
• to protect the safety of the child or another member of the child’s household,
• to pursue an employment or educational opportunity, or
• to be with one’s spouse [or spouse equivalent, if such is defined in Chapter 6] who is established, or who is pursuing an employment or educational opportunity, in another location.
• The relocating parent has the burden of proving the legitimacy of any other purpose.

A move with a legitimate purpose is reasonable unless its purpose is shown to be substantially achievable without moving, or by moving to a location that is substantially less disruptive of the other parent’s relationship to the child.”

Finally, in Potter v Potter (2005), the Supreme court held that a parent with joint physical custody is not eligible to relocate with a minor child but must first gain primary physical custody. The moving parent has the burden of establishing that it is in the child’s best interest to relocate outside of the state with the moving parent as the primary physical custodian.

No statistics are kept on the proportion of mothers obtaining primary physical custody in Nevada. One famous Massachusetts study found mothers received primary physical custody in 93% of cases (despite distorting the figures to claim men obtained custody in 70% of cases “when they wanted it”). 

Bottom line: If you are a non-custodial parent you have very little chance of fighting a relocation. If you are joint custodial parent you will need to fight like hell to prove its in your child’s best interests to stay in Nevada. 

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).

Best State for Divorce?

Is Nevada the best state for a divorce? Popular wisdom has held this to be the case and Nevada has the highest divorce rate of any state (probably because many people establish residency for six weeks to take advantage of the quick divorce laws).

On the positive side, the six week residency rule is the lowest of any state, and after establishing residency you can get an uncontested divorce in as little as 48 hours. As a no-fault state, you do not need grounds for divorce like some other states. Nevada is also a community property state, so any assets acquired during the marriage are split 50-50. There is also a formula for child support that reduces litigation and uncertainty.

On the down side, it can take years for a contested divorce to go through. The three biggest time wasters are: custody disputes (which often require court-ordered evaluations), alimony (no formula and hence lots of room for argument), and division of business assets (what is a company worth?). It is not unusual for such complex cases to last two years or more with numerous motions, discovery, and hearings.  Also, assets that continue to increase in value (like 401k accounts and business assets) are still considered community property until the final decree is issued (unlike California where community property ceases when the complaint for divorce is filed).

The bottom line: Nevada is great for an uncontested divorce but in a contested divorce you may not get the speedy resolution you are looking for.  Nowhere is the old adage “time is money!” more true than in family court.

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).

Sample Discovery Request

Several readers seem to be searching for examples of discovery document requests that you can use when you are representing yourself (i.e. you are a pro se litigant).  

As an illustration for those seeking to prepare their own discovery requests, I thought I would like to post an example that I used in my own case. The file link below will connect to a PDF document that contains some pretty standard requests for documents. This is officially known as a Request for Production (or RFP).

generic-rfp

When you examine the list of items requested you can see that document production can eat up a lot of time. This is also why it is important to keep detailed records during your divorce and why you should try to settle your case before it reaches the discovery stage.

In addition to production of documents, discovery includes interrogatories (a set of twenty questions) and depositions (sworn testimony from witnesses and both parties that can be introduced in court). Depositions are a great way for attorneys to produce billable hours.

Usually, the court will indicate when any discovery must be completed. In my case, the opposing attorney just ignored my requests for documents. The discovery commissioner who is meant to handle discovery disputes never returned my calls and the office seemed mostly empty.

A motion was then generated requesting the court to order the production of the requested documents.  The opposing attorney claimed I had not produced all of my documents and he had not realized that I was representing myself- the court, in all its wisdom, then postponed the trial another six months.  

In hindsight, I’m not sure how much hope you can pin on the discovery process. It is costly and time-consuming to enforce compliance even for information that you know exists. If the other party decides to lie about the existence of documents then it is unlikely you will ever obtain them. The penalties for non-compliance seem almost farcical. 

The COPE Class

Unless excused by the court, parents in Clark County Nevada have 45 days after the filing of a divorce complaint to attend a mandatory COPE (”Helping Children Cope with Divorce”) class.

The class itself costs $40, lasts for about 3 hours, and is usually held at a public library. See Palo Verde Child and Family Services Inc. for more information. You can pre-register or walk in. They take cash or money order and you will need a photo ID to confirm your identity. At the end of the course you will receive a certificate of completion that you can show the court as evidence of completion.

Topics include: 

 

• How families experience divorce
• Typical reactions of children
• Developmental needs of children
• Skills that help children cope
• Pitfalls to avoid

In my experience, the seminar gave some nice information on the psychological reactions of children to divorce (at different ages ranging from toddlers to teenagers) and how parents must work together to mitigate the negative effects of divorce.

I specifically pressed the presenter on how to deal with an ex-spouse with borderline personality disorder who is intent on alienating the other parent. Her response was that unless the other parent sees the “big picture” that working together is in the best interest of the child then there is little that can be done. The presenter had no strategies on how to counter parental alienation tactics.

Unfortunately, until the courts start to see parental alientation as a form a child abuse and shared parenting as the norm, children will continue to be psychologically harmed by divorce.