Given my experience in the Family Courts in Nevada, here is a list of changes that I would make to the system that would make the process much more efficient and painless (I also expect lawyers and judges to oppose many of these changes because it reduces litigation and thus billable hours):
1) Presumption of shared parenting
Much time is wasted in court trying to win sole or primary custody and “prove” that the other parent is not worthy. A presumption of shared parenting awards 50% custody to each parent. Studies have shown that children do better with both parents in their lives. Any parent wanting to challenge the shared parenting must prove (beyond the balance of probabilities) that the other parent is unfit. This change would certainly reduce conflict and litigation but more importantly not cause the court to “choose” which parent is better.
2) Alimony formula
Unlike child support, the current system provides “factors” to determine alimony but no formula. A formula has been proposed (called the Tonopah formula) but it has not been adopted by the Supreme Court. Establishing a formula provides more certainty and reduces litigation over the relevant “factors” and how to weight them. Fighting over child support and alimony are the two greatest areas of litigation and cost in the family law system today.
3) Revised child support formula
The current child support formula is based solely on the non-custodial’s parent income with the opportunity for the judge to make adjustments or offsets for various circumstances. If a shared parenting model is adopted then the formula will need to be adjusted to take both parents incomes into account. Ideally, child support should be based on the actual cost of raising a child and a formula used to determine how that cost should be divided between the parents. Many jurisdictions adopt an income-share model where the cost is split in proportion to income. Child support should not be a hidden form of alimony or welfare for custodial parents.
Payments should also respond flexibly (and sympathetically) to a loss of job or income. You should not face jail time or punitive arrears because of factors beyond your control. Reductions should be automatic upon application (with supporting documents) and not require a court order. Reductions can be reviewed in a reasonable time period.
4) Make Temporary Support Orders Appealable
Temporary support orders (payments made for alimony/child support between filing for divorce and receiving a final decree) are currently not appealable in Nevada. This opens them up for abuse by judges who may order lengthy and onerous temporary support to force a settlement. In my case, I was ordered to pay up to 90% of my net income in temporary support with no way of appealing the ruling.
5) Penalties for false reports
The use of protection orders to exclude men from their homes on the basis of domestic violence (DV) has been seen as a legitimate “tactic” by many lawyers. There is also a presumption that you will lose custody if you have a proven DV incident on your record not to mention the possibility of jail time. The penalties for making a false report are rarely applied and many judges err on the side of caution in these cases by granting the protection order without additional evidence other than the petitioner’s testimony. To discourage false reports, the law should be changed to provide mandatory penalties for proven cases of false reporting. This would have a chilling effect on those using the tactics inappropriately.
6) End Community Property on Application
Community property ends in Nevada on the filing of the final decree. In some cases, this can be years after the initial petition for divorce. California, on the other hand, ends community property accumulation on the day of filing for divorce. Property, business, and pension accumulations thus end when at least one party signals they want the marriage over. The Nevada system allows a financial benefit for prolonging the case and should be changed. In fact, Nevada courts should allow a bifurcation – granting a divorce and ending community property – almost immediately if the grounds for divorce are met. There is no reason that ongoing litigation over financial and custody issues canot then be worked out later.