Moving Children out of State in Nevada (custody relocations)
Before the district court considers a motion to relocate, the requesting parent must show a good faith basis for the move. Where the parents have equal custody rights to their child, and the requesting parent is able to show a good faith reason, the district court must decide whether it is in the child’s best interest to relocate with the requesting parent and live in a different stay or stay in Nevada with the other parent. Requesting to move with a child out of state and opposing the other parent’s request to move out of state with a child can be an expensive process. Pecos Law Group has extensive experience in litigating relocation cases in Nevada.
What is Community Waste in Nevada?
Nevada law provides that 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 held in Lofgren v. Lofgren, 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.” The financial misconduct in Lofgren 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 noted this in Putterman v. Putterman and went on to observe that “[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.”
Generally, once an allegation of waste or hiding of community assets has been made in a divorce proceeding, and there is evidence of a missing or damaged asset, the spouse accused of dissipating the asset has the burden of proving how the specific funds were spent. If an asset existed at the time of divorce, or shortly before the divorce, and was spent or lost in contemplation of a divorce, the spouse who lost or dissipated the asset will have the burden of showing that the asset was not lost or wasted but transferred or spent consistent with a legitimate community purpose.
Gambling losses are an issue that often arises in Nevada divorce cases. Gambling may 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.
Credit card or other consumer spending is also often the subject of a waste claim. 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.” 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.”
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. The “good faith” of the investing spouse will also be a primary consideration. The investing spouse assumes the risk of making any unilateral investments when a divorce or separation is contemplated by either party. If the value of the investment increases it will almost certainly be community while any losses may be found to be separate.
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 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. The lawyers at Pecos Law Group have extensive experience in addressing community waste in Nevada.
Does Living with Someone Terminate Alimony Like Remarriage?
Nevada law provides that alimony will usually stop when the party receiving alimony remarries. A court may also modify an alimony award if there has been a material change in circumstances. A change of circumstances may include cohabitating with another person without a legal marriage.
In Gilman v. Gilman, the Nevada Supreme Court adopted an “economic needs” test to determine whether or not cohabitation would have any effect on the recipient spouses right to receive support. The court stated that “under this ‘economic needs’ test, the amount of spousal support reduction, if any, depends upon a factual examination of the financial effects of the cohabitation on the recipient spouse.” In other words, the Family Court judge should examine the financial contributions of the cohabitant. A shared living arrangement by itself, is “generally insufficient” to terminate or modify alimony. It does not, however, preclude the possibility that in certain circumstances, cohabitation in and of itself would be sufficient.
The Nevada Supreme Court noted that the “sharing household expenses gives rise to ‘economies of scale” which may permit cohabitants to spend less living together than individually. Theoretically, even if a party receiving alimony lived with a person in a platonic relationship, it could still change the financial circumstances to decrease or eliminate the need for alimony. The economic needs test recognizes that in certain situations, cohabitating will decrease one’s expenses and that “maintaining the original amount of spousal support payments may be unfair to payor spouses if they are essentially subsidizing third party cohabitants or supporting ex-spouses who have significantly improved their financial situations.”
The Nevada Supreme Court held that “insofar as a parent’s expenses are affected by a cohabitant’s contributions to rent and other household payments, the district court may take this circumstance into account when setting or modifying child support under NRS 125B.080(9). The former wife in Gilman and the companion case Callahan both conceded that financial contributions by their cohabitants may constitute a change of circumstances justifying a modification of her alimony award. Support should be terminated when the purposes of the initial award have been met. Some courts have been reluctant to terminate spousal support upon cohabitation alone, because the “recipient spouse may be left largely unprotected, from an economic standpoint, if he or she break off a relationship with a cohabitant.” One of the purposes of Nevada’s support statute is to “keep recipient spouses off the welfare rolls.”
If alimony is no longer serving its primary purpose and the financial need no longer exists, a party should not be able to receive alimony just because he or she has made the conscious decision not to remarry, whether or not that decision was made for the exclusive purpose of maintaining the alimony award.
What Just Happened in Court?
You just spent time in Las Vegas family court listening to attorneys discuss intimate details of your life and a judge making decisions about those intimate details. Your head is swimming with legal jargon and orders. Maybe there was some yelling by the attorneys and the judge sounded mad. You may not be sure if what happened was good or bad for you. Maybe your ex’s attorney was loud and interrupted your attorney. You wonder if that means that he won, and you lost. You walk out of the courtroom in a fog and wonder “What just happened?” You turn to your lawyer who says that he is late for a hearing in another department and is gone down the hallway. Now what?
There are a few things to know that can make your experience in court more comfortable. More important, by having an idea of the purpose of each hearing and having a good idea of what to expect before you walk into the courtroom, you will be better prepared to take in what is happening.
First, find out the purpose of the hearing. What are the issues before the court? No attorney can tell you for sure what will happen in a given hearing, but your attorney can explain to you what the purpose of the hearing is and what she thinks will happen. Make sure and read any pleadings filed specifically for this hearing.
Second, during the hearing pay attention. Sometimes this is difficult to do as attorneys and judges may talk over each other and use words and phrases you do not understand. Recognize that you do not win in court by having the loudest attorney.
Ultimately, what matters most for you to know and understand right after the hearing is the judge’s orders. If the judge orders you to do something, you must follow the order. In most cases, the orders will be put in written form and you will receive a copy from your attorney. This, however, can take some time, so make sure that you follow the judge’s orders even if you do not have the written version in front of you yet.
For instance, if the judge says that he wants you to begin a visitation schedule the following day, you will not have a written order but will need to comply regardless. You do not want to fail to comply with an order and have to stand before the judge explaining that you did not know what you were supposed to do. Judges often respond to any excuse like that with: You were in court when I told you to do this, weren’t you?
With all of the action in court, it is easy to forget what you are hearing. Feel free to bring a pen and paper and take some notes during the hearing. Just be careful not to get so caught up in taking notes that you forget to pay attention to what you need to hear and understand. If you have specific questions for your attorney, write them down so that you do not forget them.
Finally, if you have any questions regarding what happened in court, make sure and speak to your attorney. Ask your attorney to tell you what happened, what you are required to do, and what your deadline is for doing it. Also, future hearing dates are often set during a hearing. Make sure you know when the next hearing date is.
Court can be confusing for litigants, and attorneys and judges can forget that. By preparing yourself and asking questions, you can ensure that your case runs smoother for you. In doing so, you may also minimize the conflict between you and your ex. The attorneys at Pecos Law Group are experienced and will take the time to prepare you for what happens at every stage of your case, including the courtroom.