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.

 

 

Bifurcation and Community Property

An interesting difference in divorce laws between California and Nevada is the treatment of community property. In California, accumulation of community property occurs when the petition for divorce is filed. In Nevada, community property continues to accrue until:

a) the final decree of divorce is signed by the judge

b) the parties stipulate (agree) to stop the accumulation

c) the judge orders a bifurcation

Bifurcation is the term used to separate the issues in the case. For instance, the judge can grant the divorce (thus ending community property) but defer ruling on property and alimony issues. Curiously, judges in Nevada hardly ever do this.

Why is this important? In my case, my 401k continued to appreciate for over two years before the accumulation ended - providing tens of thousands of dollars to my ex. Conversely, my house price fell $100,000 in two years and the loss was split equally.   

In this case, I think California has it right!

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.

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.

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.