Common Divorce Terms Definitions
ALIMONY OR SPOUSAL SUPPORT
Alimony, or Spousal Support is the amount paid to one spouse by the other for a period of time after the marriage is over, usually to assist the spouse in being able to maintain a lifestyle to which that spouse is accustomed, until that spouse can get back on firm financial footing. Spousal support may be for a limited amount of time, such as months or years, or may be permanent such as for a lifetime or until remarriage, whichever occurs first. If the spouse that is receiving support remarries, unless otherwise agreed upon, the spousal support stops. There is no formula for spousal support and either party may receive spousal support. The factors governing spousal support are complicated and if you have any questions regarding spousal support, they should be discussed with a private attorney.
Generally, anything acquired or purchased during the time of the marriage is considered a community asset and, therefore, community property, and it usually does not matter if one name is on the property or both names are on the property. Nevada is a “community property” State and the law in Nevada is that community assets are equally divided at the time of a divorce. There are some exceptions, and those should be discussed with a private attorney. The term “community assets” includes: the income, any interests acquired in real property, any retirement funds earned during the marriage, vehicles purchased during the marriage (even if in only one name), furniture purchased during the marriage etc. In many cases, it does not matter in whose name these things are purchased. Sole and separate property is not usually considered “community property” unless it was given as a gift to the community or the community has acquired an interest in it in another way. If one party “wastes” community assets or give community assets away without the other party’s knowledge or consent, that the party may have to reimburse the community for the “wasting” of assets. If there is a question of wasted assets, those should be discussed with a private attorney.
There are two kinds of “custody”, “legal” custody and “physical “ custody for a more complete explanation of custodial terms used in divorce, separation and custody, see the enclosed information entitled “Common Custody Terms”. Custody is a complicated issue and you are urged to seek the advice of private counsel on how to establish custody and visitation if you have any questions or concerns.
Child support is governed by statute and, like child custody, can become complicated. Although the basic formula as set by statute is 18% of the non-custodial parent’s gross income for 1 child, 25% for 2 children, 29% for 3 children, and 31% for 4 children and an additional 2% for each additional child, there are deviations from the formula that can be considered. The minimum child support allowed is $100.00 per month, per child, and the maximum is $500.00 per month, per child. BUT, there are deviations from the minimum and maximum amounts, also. The child support statutes can be found at NRS 125B.070 and NRS 125B.080 and any child support agreed upon must be based on the requirements of those statutes. Child support cannot just be waived by the parents. You are urged to seek the advice of a private attorney on how to fully address child support and any deviations from the formula. Child support must be reviewed every 3 years or at any time if there is a substantial change of circumstances. It is the responsibility of the parties to request a review and modification of the child support.
The statute governing child visitation and exchange is clear. It is not enough to just state “reasonable visitation” in any kind of agreement. The visits and terms of the exchange of the child must be clear and specific. There must be specific days, times and places of exchange included in the agreement, and the holiday calendar must be clearly defined. If there are expenses involved with the exchange and visits, the agreement must state which parent is going to bear the expenses, or, if the expenses are going to be shared. If there is travel involved, who makes the travel arrangements must be stated. If the visitation is going to be “supervised”, the arrangements must be stated as to who will supervise the visits, whether the supervised visitation will be temporary or permanent, and, if temporary, when unsupervised visitation will commence, and under what conditions. It must be remembered that the written agreement for visitation is the controlling agreement and any verbal agreements are usually not enforceable through the courts.
Any assets acquired or purchased during the marriage are usually considered “community property”, no matter whose name they are in. That is the starting point for the division of property of the marriage. Nevada is a community property state and it is the law that the division of community property start with an equal division. However, there are important deviations and exceptions to equal community property distribution. See “Assets” above.
Generally, any bills or debts acquired during the marriage are considered community debts and are equally divided at the time of the divorce. There are exceptions, Debts that are incurred for such things as gambling or for purchasing things that are not for the benefit of the community, may be considered sole and separate debts. Such debts should be discussed with a private attorney.
Both parties meet with a professional “mediator”, usually in an attempt to work out a parenting plan for children involved in a custody dispute. However, the division of property may also be “mediated” under certain circumstances. In some counties, such as Washoe, mediation of custody and visitation issues is mandatory when the parents cannot come to an agreement concerning custody and visitation of the children. There are certain circumstances under which mediation can be “waived”. However, those circumstances ware very special and if you believe you are eligible for waiver of mediation, you’ll need to seek the advice of an attorney on how to file the correct documents in order that mediation may be waived.
Husband and Wife are the “Petitioners”. Both are presenting or “petitioning” the court to grant them a Summary Divorce based on the facts: (1) there are minor children of the marriage for whom orders must be considered.
RELOCATION OR MOVING OUT OF THE AREA WITH CHILDREN
The law is clear on a parent’s relocation with the children. The parent that wants to relocate out of the State, or even out of the area, if the move is going to have an impact on visitation with the children, before the move, must either have the other parent’s written permission to move out of the area or State, or, a court order allowing the move if the other parent will not give written permission. The parent wishing to move must file a Motion or Petition For Relocation and serve the other parent with the Petition or Motion. Leaving the area with the children without either written permission from the other parent or an order from the court allowing the relocation may be the basis for a change of custody of the children and may be prosecuted as a crime. Before leaving the area or State with children, it is urged that you seek the advice of an attorney.
One of the “Petitioners” must be a resident of the Sate of Nevada and that person is known as the “resident petitioner”. In order to establish residency in the State of Nevada, that person must have physically lived and physically been here in the State of Nevada for at least six (6) weeks immediately prior to filing the Joint Petition. If both people are residents of the State of Nevada, only one is actually designated as the “resident petitioner” for purposes of the filling out and filing of the Affidavit of Resident Witness Form. A child or the children, of the petitioners. MUST be a resident of the State Nevada for a period in excess of six (6) MONTHS just prior to the filing of the Joint Petition, before the State of Nevada can enter any orders regarding custody, or visitation, of the child or children. This is FEDERAL LAW. If the child or children are not residents of the State of Nevada for a period of more than six (6) months just prior to the filing of the Petitioner, the State of Nevada has no jurisdiction over orders regarding the children. THERE ARE EXCEPTIONS, but those should be discussed with a private attorney. The parties cannot automatically waive the jurisdictional requirements when it comes to custody and visitation issues.
The Petitioner or party, on whose behalf the Affidavit of Resident Witness is going to be filed. If both Petitioners are residents, only one will be the “Resident Petitioner”.
A person that will swear in the Affidavit of Resident Witness that one of the Petitioners has been physically present in the State of Nevada for a period of at least six (6) weeks immediately prior to the filing of the Joint Petition. The Resident Witness may be a friend, a family member or a co-employee.
SOLE AND SEPARATE PROPERTY
Sole and Separate property are those things Husband and Wife owned prior to the marriage, and it ,may also include a personal injury settlement received during the marriage by one of the parties if the proceeds were kept entirely separate from the community. Sole and separate property remains the property of the individual who owned it prior to the marriage. There are exceptions, such as a home or other real property. The “Community” may acquire an interest in a home or real property during the time of the marriage even if it belonged to one party prior to the marriage. If there is a question regarding such an interest, and what percentage the community may have acquired, you are urged to see a private attorney.
COMMON “CUSTODY” TERMS
DIVORCE AND PATERNITY ACTIONS
Custody terms that are used in legal documents have some very important legal consequences and can have a tremendous impact on your future actions in the court. There are two kinds of custody that must be addressed in divorce and paternity documents. “Physical” custody and “Legal” custody. Physical custody has to do with the actual, physical, interaction and contact between parent and child. Legal custody has to do with the rights and responsibilities to make decisions about the important aspects of the child’s life, such as the child’s education and the child’s health needs.
The following terms are commonly used to describe “custody” arrangements. It is important to realize that these are not the only terms used and if there are terms that you don’t understand or you are not sure of their meaning, for your own protection, have the terms clearly defined in any legal documents you sign or any orders that issue from the court.
These definitions are not complete legal definitions, but only give you an idea of what terms are commonly used in documents and what they generally mean. For a more complete definition, please speak to an attorney, or clarify the terms with the mediator, if you are in mediation, or, clarify the terms at the time of any hearing or conference with the judge.
● Primary Physical Custody: The child physically resides with, and spends the great majority of time with, one parent, designated as the primary physical custodian, and the other parent has visitation rights and privileges. Usually the non-custodial parent has visitation at least every other weekend, one evening during the off week, alternate holidays and some block time for vacation periods. Non-custodial arrangements vary with each set of circumstances.
● Joint Physical Custody: Each parent has significant periods of time with the child. It DOES NOT MEAN that each parent has an exact equal amount of time with the child. The significant time may be worked out over longer periods such as weekly, monthly, or even annually. This may also be designated as shared physical custody. Joint physical custody does not mean that there will be no child support obligation. Usually , there is still a child support obligation of some kind from one parent to the other, depending upon the financial position in which each is left following the divorce.
● Sole Physical Custody: Sole physical custody is very seldom granted by the court. Usually, the term is used when one parent is completely out of the child’s life, such as in prison, or in circumstances that contact with the non-custodial parent would expose the child to physical danger or abuse. Sole physical custody does not automatically mean that the non-custodial parent has no visitation rights. The court may grant one parent sole physical custody and grant the non-custodial parent specific visitation. The term sole physical custody is most often combined with sole legal custody which then grants one parent the complete control over making all the decisions for the child without any input by the non-custodial parent. However, sole physical custody may also be combined with joint legal custody. In that case, although one parent has the child solely in their physical custody, the important decisions for the child are made with input by the non-custodial parent.
● Joint Legal Custody: Both parents equally share the right and responsibility to make decisions about the child’s health, education and welfare. Should the parents not be able to agree on such decisions, the parents usually return to mediation to see if they can work out their differences and if they cannot work them out through mediation, the matter is presented to the Court for the final decision. Both parents have an equal right to access such things as the child’s doctor’s records and school records.
● Sole Legal Custody: One parent, alone, has the right and responsibility to make all the decisions about the child’s health, education and welfare, without any input from the non-custodial parent. Sole legal custody is only granted in unusual cases and circumstances. Nevada is a joint legal, joint physical, custody preference State. The State encourages custody arrangements that allow the child to have significant time with both parents and expects both parents to share the responsibility of making the important decisions involving their child’s life.
NEVADA IS A JOINT LEGAL, JOINT PHYSICAL, CUSTODY PREFERENCE STATE. THE STATE ENCOURAGES CUSTODY ARRANGEMENTS THAT ALLOW THE CHILD TO HAVE SIGNIFICANT TIME WITH BOTH PARENTS AND EXPECTS BOTH PARENTS TO SHARE THE RESPONSIBILITY OF MAKING THE IMPORTANT DECISIONS INVOLVING THEIR CHILD’S LIFE.
CHILD SUPPORT INFORMATION
Child Support When Parents are Sharing Joint Physical Custody or When the Children are going to be split between parents.
The Nevada Supreme Court set out an additional formula in the child support statutes for parents who share joint physical custody of their children or who are going to split the custody of the children.
Joint Physical Custody presumes the child is going to spend an approximate equal amount of time with each parent.
Split custody is when one parent has the physical custody of more children than the other parent. For instance: In a family of three children: Father has primary physical custody of two children and Mother has primary physical of one child.
JOINT PHYSICAL CUSTODY
The Court has directed that the child support be figured according to the percentage as stated in NRS 125B.070 and the parent earning the most pays the parent earnings the less, the difference. At the present time, $100.00 per month, per child is the minimum (even if a parent is not working), and $500.00 per month, per child is the maximum.
Example 1: If parents are sharing joint physical custody of one child and mother is not working, the child support would be as follows:
18% of Father’s gross monthly income
$100.00 for Mother’s obligation
The difference between the two would be the child support Father would pay to Mother.
Example 2: If parents are sharing joint physical custody of two children and both parents are working:
25% of Father’s gross monthly income
25% of Mother’s gross monthly income
The parent who earns the most would pay the parent who makes the less the difference.
Both parents have a support obligation to the other and it must be figured according to the statutory formula.
Example: There are three children of the family. Father has the primary physical custody of 2 and Mother has the primary physical custody of 1.
Mother would have an obligation of 25% of her gross income for the two children who primarily lives with Father. Father would have an obligation of 18% of his gross income for the one child who lives primarily lives with Mother. Subtract the less from the greater and the difference is paid to the parent who has the lesser obligation.
Some figures: Mother’s gross monthly income is $1600.00. 25% of that is $400.00.- that is Mother’s obligation for the two children living with Father.
Father’s gross monthly income is $1700.00. 18% of that is $306.00.-that is Father’s obligation for the one child living with Mother.
This amount Mother would pay Father the difference a month in child support.
REMINDER: THE DEVIATIONS LISTED IN NRS 125B.080 STILL MAY BE FIGURED INTO THE FORMULA TO INCREASE OR DECREASE THE CHILD SUPPORT OBLIGATION.
This information is provided as a courtesy. It is designed to provide the most accurate and authoritative information with respect to the subject matter covered. While every attempt is made to provide accurate information, Nevada Legal Forms & Tax Services, Inc., cannot be held accountable for errors or omissions. It is not intended to provide any legal or accounting advice. If any legal or tax advice is needed, we recommend you seek the advice of a competent professional.