Family Law FAQs
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DIVORCE FAQs:
Q: What’s the difference between a contested divorce and an uncontested divorce?
In a contested divorce, the spouses can’t agree on one or more key issues to conclusively terminate their marriage, such as:
- child custody
- child support
- property division
- asset distribution
- debt allocation
- alimony
- temporary spousal support
Uncontested divorces are also known as “joint petitions” since both parties will execute the document submitted to the court. In an uncontested divorce, the parties agree on how to resolve all of the relevant issues.
Q: Can I get a legal separation or an annulment instead of a divorce?
Yes. If you are granted an annulment, it is as if the marriage never took place. However, an annulment is only available under limited circumstances. If you obtain a legal separation, you and your spouse will remain married, but the court can divide your property and issue orders relating to child custody, visitation, child support, and spousal support. However, you cannot remarry while only legally separated.
Q: What are some of the grounds for an annulment?
An annulment can be based on a number of factors, including lack of consent of a parent or guardian (if underage), lack of understanding or insanity, and fraud or void marriages (spouses that are closely related by blood; polygamy/bigamy.)
Q: Should I agree to an uncontested divorce?
An uncontested divorce can be an excellent way to finalize your divorce quickly but only if the agreement is in your best interests. If you agree on all issues and the judgment of divorce is fair to you and your minor children, an uncontested divorce may be a good idea. But it’s important not to accept the word of your former spouse about what you may receive or deserve in the divorce judgment.
If your spouse is pushing for an uncontested divorce, it’s important to review the case with a Nevada divorce attorney. Your attorney can help you understand whether the proposed judgment is a good idea based on how Nevada law applies to the situation. Armed with legal knowledge, you can weigh the pros and cons and make an informed decision about your case.
CHILD CUSTODY FAQs:
Q: How is child custody determined?
The court looks at the best interests of the child in determining the proper custody and visitation arrangement. The judge considers many factors when deciding custody, including:
- Age and sex of the child
- Compatibility with each parent
- The ability of each parent to care for and nurture the child
Q: What is a parenting plan?
A parenting plan is a court-ordered arrangement of the custody and visitation details surrounding the child’s day to day needs along with a set of guidelines as to both parental rights and responsibilities regarding their child. A parenting plan may be generic, or it may give precise details about how parenting time must happen.
The parenting time in your case depends on the specific circumstances. The court has great flexibility to fashion a parenting time plan that meets the needs of the children. For example, the court might dictate who travels to pick up the child for parenting time or how the parents share the costs of travel. The court might order the parents to facilitate counseling for the child. If a parent has a substance abuse issue, the court might order parenting time to occur in the presence of a third party.
Q: What can I expect for a custody arrangement?
The courts make custody arrangements that are designed to facilitate the relationship between the child and each parent. It’s only in extreme cases that the court orders that a parent may not have any contact with a child. While those cases certainly exist, in most cases, the court orders parenting time in some fashion. If a parent’s ability to interact with the child is seriously in question, the court can order supervised parenting time for the child with that parent.
When parents divorce or when they establish custody orders for the first time, custody depends on the application of the best interests factors. The court considers who has been the primary caregiver of the child up until this point. The court considers whether either parent has a substance abuse issue or a mental health issue. Minor personality differences or the fact that a parent drinks alcohol occasionally typically aren’t enough to impact a child custody award. Instead, the courts are concerned about very serious issues that affect a parent’s ability to adequately care for and guide a minor child.
It’s important to remember that courts make practical orders. For example, if the parents live in different states, the court won’t order a school-aged child to spend equal time with each parent. Likewise, if the court orders joint physical custody, the court won’t order a young child to go weeks at a time without seeing either parent. The court wants the child to have a reasonable and predictable schedule that’s geared toward success for both the parents and child.
Q: Can child custody be modified?
Yes, child custody can be modified. A court maintains jurisdiction to change a custody order as long as the child remains a minor. Visitation may be changed as well. To change custody or visitation, the other parent must agree, or you must ask the court to order the change.
The courts take child custody modifications seriously. A parent must satisfy a high burden of proof for a court to order the change. Things like remarriage of a parent or one bad report card without additional circumstances or complications aren’t enough for a custody change. It’s easier to change a visitation schedule or a condition of parenting time than it is to change the primary custodial parent.
Custody changes aren’t easy, but sometimes they’re necessary. It’s up to the parent who seeks the custody change to prove that the change is in the best interests of the child. You must support your request with admissible evidence. If you’re considering petitioning for a custody change, you should work with an experienced family law attorney to develop the evidence and prepare for the legal battle ahead.
Q: What if I am not married to the mother of my child?
If you are not listed on the birth certificate, you have no legal rights until you obtain an order legitimating the child. If you’re not married to the mother of the child, you can petition the court for a custody and parenting time order. Even if the child’s mother doesn’t want you to have any contact with your child, as long as you’re a fit parent, the court should fashion a custody order that includes at least some parenting time.
Q: Is there a gender preference in a Nevada custody decision?
No, there is no gender preference in a Nevada custody decision. The court may not award custody to the mother simply because she is female. The court may not make any gender stereotypes about who might be more caring or the better disciplinarian. The court must make an individual decision.
Although the court may not award custody based on gender, the court may take into account who has been the primary caregiver for the child for the period before the court order goes into place. If one of the parents is newly introduced to the child, the court may gradually increase that parent’s time with the child.
Q: May parents share custody?
Yes, parents may share custody. Although it is rare, the court, in its discretion, can award sole legal custody instead of joint legal custody – usually reserved for situations where there is a “bad” parent. Sole legal custody means that one parent makes all of the significant parenting decisions for the child(ren), where joint legal custody means that both parents have equal rights to and responsibilities for major decisions concerning the child(ren). Even if a parent doesn’t have legal custody, they may still have parenting time with the child. If a parent has primary physical custody, they’re likely to also have at least joint legal custody.
- Primary physical custody, which means that one parent has substantially more physical custody and contact than the other parent – often used where the parents have a substantial physical separation; and
- Joint physical custody, which means that the parents share physical custody in such a way that the child is assured substantially equal time and contact with both parents is most often used where parents can agree on major parenting issues.
In awarding joint custody, the court may order joint legal custody, joint physical custody or both.
CHILD SUPPORT FAQs:
Q: How does the court determine child support in Nevada?
Child support in Nevada is based on the gross income of the non-custodial parent. Child support is determined by a formula that considers the non-custodial parent’s income and the number of children that are a part of the order.
Q: What factors may cause variations in child support?
Even though the courts almost always follow the child support formula, the court may make an exception if the court feels that the amount determined by the child support formula doesn’t fairly meet or represent the child’s needs. Some factors that may warrant variations in child support include, but are not limited to:
- Ages of children
- A child’s medical costs
- Educational costs
- Daycare costs
- Shared physical custody arrangements, including extended visitations
- A party’s other support obligations to another household
- A party’s own medical expenses
- The income of the custodial parent
Q: Can a parent receive money for the children’s college?
The court cannot order parents to pay for college. However, parents may agree to pay child support beyond the age of 18 or to pay for college expenses. If an agreement to pay for college is part of a judgment of divorce, the court will enforce it; otherwise, the court will not order a parent to pay for college if the parent doesn’t agree.