COVID 19 and Nevada Child Support: What you need to know.
As of writing this, three million people have already been laid off or furloughed as a result of the coronavirus pandemic. The residents of Las Vegas, a city powered by the service and hospitality industry, will certainly feel the financial effects of COVID 19 much more severely than elsewhere in the country. Our office is already receiving calls from hospitality employees who are struggling to pay their mortgage as well as their child support obligations. Many of these clients are opting for self-help. In other words, they are choosing not to pay or pay only a portion of their child support obligation. This self-help option, however, will come at a cost.
Parents with court ordered support obligations need to know that such obligations cannot be modified retroactively. According to the Nevada Supreme Court “payments once accrued for either alimony or support of children become vested rights and cannot thereafter be modified or voided.” Although a support order “may be revised due to changed circumstances, such revisions only look ‘to the future and do not act in retrospect.’” See Tsai v. Hsu, 126 Nev. 763, 367 P.3d 828 (2010).
Clearly, the loss of employment resulting from the COVID 19 pandemic and the virtual cessation of most economic activity in the Las Vegas Valley, is a situation which warrants modification of a parent’s child support obligation. However, the family courts can only make the modification effective either as of the time of filing the motion to modify or as of the date the court actually issues its ruling on the motion.
If you are laid off or furloughed and cannot meet your child support obligation, take the time to call us regarding the filing of a quick motion for modification. Failure to do so might leave you with a mountain of child support arrears and penalties to pay once Nevada’s economy comes back online.
Tax Returns a Must When Requesting a Reduction in Alimony
Nevada Revised Statute 125.150(7) permits a court to modify a spouse’s alimony obligation. “upon a showing of changed circumstances.” Nevada Revised Statute 125.150(7) also provides that “in addition to any other factors the court considers relevant in determining whether to modify the order, the court shall consider whether the income of the spouse who is ordered to pay alimony, as indicated on the spouse’s federal income tax return for the preceding calendar year, has been reduced to such a level that the spouse is financially unable to pay the amount of alimony the spouse has been ordered to pay.”
After the Great Recession which began in 2008, motions for a modification of alimony flooded the courts. In such bleak economic conditions, a drastic decline in the payor spouse’s income was, for the most part, a given in these alimony proceedings. As such, the district courts often modified the alimony obligation without the formality of even seeing tax returns. The Nevada Supreme Court in published opinion, however, have consistently found that tax returns must be provided because they are the most reliable reflection on one’s income and a good “starting point” to determine whether a modification is warranted.
The coronavirus crisis is similar to the Great Recession of 2008, except that the loss of jobs and income are occurring at a more rapid pace. Pecos Law Group expects that the within the next several months the court will be flooded with requests for reductions in spousal support and child support. To have a reasonable chance of reducing a support obligation, the party requesting a reduction must provide their most recent tax return and clear of evidence that their current income is at least 20% less than the previous year.
Community Waste in Nevada
NRS 125.150(1)(b) provides that in a divorce action, a court shall attempt to make an equal division of the community property “except that the court may make an unequal disposition of community property in such proportions as it deems just if the court finds a compelling reason to do so and sets forth in writing the reasons for making the unequal disposition.” The statute begs the question: what constitutes a “compelling reason” for the unequal distribution of community property?
The Nevada Supreme Court has held that “if community property is lost, expended or destroyed through the intentional misconduct of one spouse, the court may consider such misconduct as a compelling reason for making an unequal disposition of community property.” This financial misconduct was “found in the husband’s having transferred funds to his father and in his having used community funds for his own purposes, all in violation of the court’s preliminary injunction.” The Nevada Supreme Court has also noted “[t]here are, of course, other possible compelling reasons, such as negligent loss or destruction of community property, unauthorized gifts of community property and even, possibly, compensation for losses occasioned by marriage and its breakup.” What are some examples?
Gambling losses may clearly be considered a “negligent loss or destruction of community property.” Some Clark County family court judges, however, view gambling merely as a form of “entertainment.” One party may take vacations, have spa days, or go to concerts for entertainment, while the other may gamble. In determining whether gambling losses constitute community waste, a court may consider historical gambling patterns, or the amount of loss and the timing of the losses relative to the divorce. There does not appear to be any distinction between legal or illegal gambling. Oddly, there are no Nevada cases dealing with gambling as community waste, but there is case law in other states.
In an unpublished opinion, the Nevada Supreme Court found that a “wasteful and secretive” purchase made during the pendency of a divorce action in violation of a restraining order, and the acquisition of debt on a community credit card to pay for unauthorized gifts of community property, were compelling reasons to make an unequal disposition of the community property. The test for analyzing waste regarding consumer purchases is generally “whether the assets were actually wasted or misused and the factors to consider in determining whether dissipation has occurred include:
1. Whether the expenditure benefitted the marriage or was made for a purpose entirely unrelated to the marriage;
2. The timing of the transaction in relation to the divorce;
3. The amount of the expenditure in relation to the value of the community; and
4. Whether the wasting party intended to hide or divert the asset.”
The Nevada Supreme Court has distinguished spending during the divorced versus a spending leading up to or during a divorce action. “When one party to a marriage contributes less to the community than the other, this cannot, especially in a community property state, entitle the other party to a retrospective accounting of expenditures made during the marriage or entitlement to more than an equal share of the community property.” The Nevada Supreme Court has also noted that “Almost all marriages involve some disproportion in contribution or consumption of community property,” and that “such retrospective considerations are not and should not be relevant to community property allocation and do not present ‘compelling reasons’ for an unequal disposition; whereas, hiding or wasting of community assets or misappropriating community assets for personal gain may indeed provide compelling reasons for unequal disposition of community property.”
What about when shortly before divorce, or even during divorce, one spouse purchases stock or invests in some other type of investment? By the time of trial, the value of the investment decreases. Is this a loss to the community or is it a separate loss of the investing spouse? If the investment creates value for the community, there would be no argument under Nevada law that the increase was community property. The real question that generally arises is when the investment loses value. A distinction may also be made depending on whether or not the investment was in the normal actions of the community during marriage. This type of issue is generally analyzed whether the investment was made in good faith for the benefit of both parties.
Cases published by the Nevada Supreme Court and courts in other states have identified specific acts that may constitute community waste and therefore justify an unequal division of community property. There are, however, other possible compelling reasons for a court to give an unequal disposition of property, such as negligent loss, destruction and unauthorized gifts of community property. Based on the published decisions, the Nevada Supreme Court may also be open to other “equitable reason” for an unequal division of community property. Any finding of waste or unequal distribution of property, however, must be supported by specific findings of fact.
Nevada Relocation of Minor Children in a Nutshell
You went through the child custody legal process already and have a custody order from the Judge. Now, however, you must move out of town for a job, or perhaps you need to be closer to family for support, or maybe even you’re in the military and are being moved to another base. You intend to take your children with you – can you just take them, without asking the other parent?
The answer to that question is a resounding “no.” If you try to move out of state with a child without the other party’s permission or a court order, you can be found guilty of felony child abduction. So, what do you do?
Two Nevada statutes outline the procedure for relocating with a child. Nevada Revised Statute 126C.006 applies to parents who have primary physical custody of a child – i.e., that parent cares for the child approximately 60% or more of the time. The statute states that first a parent must attempt to gain the permission of the other parent to move with the child. This permission, if given, must be in some written form to be valid. If the other parent does not give permission, the parent wishing to move must file a motion with the court.
Nevada Revised Statute 125C.0065 applies to parents who have joint physical custody of a child – i.e., the parents both care for the child approximately an equal amount of time. In this situation, the parent wishing to move must also attempt to gain the consent of the other parent. If consent is not given, the parent wishing to move must also file a motion with the court, only a joint parent’s motion will also include a request for primary physical custody in addition to relocation.
In either case, after the motion for relocation is filed, the Judge will likely hold a motion hearing in which the parties and/or their attorneys will argue for each position. In order to get a trial date (or make a ”prima facie” case for relocation), the parent wishing to move must show the Judge why it would benefit the child to relocate and show that he or she is not trying to move just to keep the child away from the other parent.
If the parent wishing to move can prove this to the Judge, the Judge will then set a date for an “evidentiary hearing,” which is like a trial. Both sides will have the opportunity to present arguments, exhibits, and witnesses. In preparation for trial, the parties will conduct “discovery,” which is the formal, legal process of information-gathering. During discovery, both parties will likely ask the other party to answer certain questions and provide certain documents. They may also issue subpoenas to obtain additional records, such as the child’s school or medical records.
After both sides have had the opportunity to gather their information, they will present their cases to the Judge. Nevada Revised Statute 126C.007 lists several factors the Judge will consider when deciding whether to allow a parent to move, which include:
– How much the move will improve the quality of life for the child and the relocating parent;
– Whether the relocating parent’s motives in relocating are honorable, and whether the relocating parent wants to move just to keep the child away from the other parent;
– Whether the relocating parent will comply with the Judge’s orders for visitation between the child and the other parent;
– Whether the non-relocating parent’s reasons for not giving permission for the relocation are honorable; and
– Whether there will be a realistic opportunity for the non-relocating parent to have adequate visitation time with the child.
If the Judge finds that all these requirements are met, he or she can grant the relocating parent’s request to relocate with the child. At the same time this order is made, the Judge will also implement a visitation schedule for the non-relocating parent, institute or modify the child support order, and dictate which parent is responsible for the cost of transporting the child to and from visitation. The Judge also has the discretion to order that the non-relocating parent reimburse the relocating parent for his or her attorney’s fees if the Judge finds the non-relocating parent did not give permission for the relocating parent to move without having reasonable grounds for the denial or to harass the other party.
Relocation cases are difficult, emotional, and involve a lot of legal strategy and research, whether you are the parent wishing to relocation or the parent wishing to prevent a relocation. An experienced attorney can help you present your best case possible.