Preventive Family Law for Nevada

What You Should Know About Alimony in Nevada - Part IV

For the last three posts, I've been talking about how alimony is defined in the state of Nevada, what kind of things the court considers when making awards, and what form those awards may take. In this last segment I will talk about some precautions you should know about alimony payments:

First, payment of any periodic or rehabilitative alimony award can be modified upon a showing of changed circumstances. In the state of Nevada this is defined as a change of 20 percent or more in the gross monthly income of a spouse who is ordered to pay alimony.

Second, except in unusually cases, alimony automatically ends upon the death of either party. Additionally, alimony payments also typically end if the receiving spouse gets remarried.

Finally, unlike child support payments, alimony is taxable income to the receiving spouse, it is tax deductible to the payor. If you are the receipient of an alimony award, you need to immediately seek the advice of your accountant or financial advisor to make sure you are putting aside enough money to pay the taxes that will attach to your award.

What You Should Know About Alimony in Nevada - Part III

Alimony in Nevada can take may different forms:

Temporary Alimony (also called alimony pendente lite or provisional alimony) refers to payments made while the litigation is pending.

Lump Sum (also called alimony in gross) refers to alimony in the form of a single and definite sum that is not subject to modification.

Periodic Alimony (also called permanent alimony) refers to alimony payable in weekly, monthly or other regular installments. Periodic Alimony can be ordered either for an indefinite period of time, or until a specific date is reached or a number of payments are rendered. Such as an awarded of 36 monthly payments of a specificed amount.

Rehabilitative Alimony (also called specified purpose alimony, short-term alimony, or transitional alimony) refers to payments made to assist a divorced party to acquire education or training in order to enter or re-enter the workforce. The intent is to help the person become self-supporting.

Generally, to receive an award of rehabilitative alimony, the receiving party must show that the payor spouse obtained greater education or job skills during the marriage and that the receiving spouse provided financial support for the family while the other spouse was obtaining those job skills or that education.

Rehabilitative alimony includes payments for such things as:

• Testing of the recipient’s skills relating to a job, career or profession;
• Evaluation of the recipient’s abilities and goals relating to a job, career or profession;
• Guidance for the recipient in establishing a specific plan for training or education relating to a job, career or profession;
• Subsidization of an employer’s costs incurred in training the recipient;
• Assisting the recipient to search for a job; or
• Payment of the costs of tuition, books and fees for:
The equivalent of a high school diploma;
College courses which are directly applicable to the recipient’s goals for his career; or
Courses of training in skills desirable for employment.

What You Should Know About Alimony in Nevada - Part II

In determining whether an award of alimony is appropriate in any given case, the court in Nevada considers, among other factors, such things as:

·        The financial situation or circumstances of each spouse;

·        The nature and value of the respective property of each spouse;

·        The contribution of each spouse to any property acquired during their marriage;

·        The length of the marriage;

·        The income, earning capacity, age and health of each spouse;

·        The standard of living during the marriage;

·        The career before the marriage of the spouse who would receive the alimony;

·        The existence of specialized education or training or the level of marketable skills attained by each spouse during the marriage;

·        The contribution of either spouse as homemaker;

·        The award of property granted by the court in the divorce, other than child support and alimony, to the spouse who would receive the alimony; and

·        The physical and mental condition of each party as it relates to the financial condition, health and ability to work of that spouse.

Consider Carefully Before Accepting Guardianship of a Child

This article come to us from the Financial Transitions March 2008 Newsletter published by Wachovia Securities,

When asked to served as the guardian of someone's minor children in the event of his/her death, it is usually meant as a compliment.  However, don't accept this role without giving it serious thought.  Consider the following:

Are your lifestyles compatible? 

Go over all details involved in raising the children.  Will the children have to relocate far from their current home?  It is difficult to lose parents, but it becomes even more traumatic when the children must relocate away from friends and school.  What are the parent's preference regarding education, religion, lifestyle, and other factors?  However well does your family get along with their children?  Consider the impact on your children, including the fact that you will probably have less time available for them.

How much financial support will be available? 

This involves more than making sure money is available for college and other expenses directly attributable to the children, such as clothing, medical expenses, and entertainment.  Additional children in your house will increase many of your bills, including food, utilities, transportation costs, etc.  Your house may now be too small, requiring an addition or moving to a larger home. 

Are you comfortable taking on responsibility for the children's finances? 

Just because you agree to take physical custody of the child does not mean you have to handle their finances.  You may feel more comfortable with another person involved to review how the money is spent.

Has a contingent guardian been named? 

Find out if a contingent guardian has been named in case you cannot serve.  However, do not use this as an excuse to say yes when you really want to decline.  It is better to indicate that you do not want to take on this responsibility now, so another guardian can be chosen.  Also if your situation changes in the future, inform the parents immediately. 

Rolling the Dice on Minority Interest Discounts?

The term "minority interest" when used in the context of a divorce settlement generally refers to real estate and/or business interests in which the parties hold less than a majority share.  If you are the owner of the property being valued, you may want to claim a discount against the value of the property.  Whether you think a discount is appropriate, and what amount that discount should be, probably depends upon which side of the argument you are on.

Generally, the argument is made that a discount in value is appropriate because the minority interest owner has lack of control, lack of marketability, and/or has a cost to partition the interest. 

For example, assume that you own an apartment building with four other people.  1 person owns 60% of the property and each of the other owners has a 10% interest.  The value of the property is 1 million dollars.  If you were one of the 10% owners, your spouse will likely argue that your 10% interest is worth $100,000 or 1/10th of the total property value.  However how much control do you have over the property.  If the business decisions are made by majority rule, you may have very little control over the way the property is managed.  Additionally, do you have the right to sell your 10% interest to anyone that you choose, or do the other owners have a say.  If there are restrictions on your ability to sell the property that may effect the marketability of the property.  The argument being that if you had to sell your interest in the building you might receive less than $100,000 since you would have a smaller number of people you could market the interest to. 

The courts in Nevada have allowed discounts for minority interests, however the amount of the discount has varied significantly and seems to depend upon a number of factors such as:

• The size of the interest
• The number of other owners involved
• The practicality of dividing the interest
• The type of business interest and/or use of the land
• The availability of financing for the undivided interest

Before assigning a value to a minority business interest it is always wise to check with a qualified business or real estate appraiser who can provide additional information about appropriate discounts for minority interests.

 

Just Because The Divorce Is Over Doesn't Mean the Work is Done

As a lawyer, I sometimes hear from clients that say "my divorce is over, so why as I still getting charged".  The answer is simple -- while the divorce is over, there are still many tasks to complete.   

Emotionally, there is often a sense of finality to the dissolution of a marriage when the Judge announces that the divorce is granted, unfortunately, practically there are many more steps to complete.  More often than not, they are outstanding orders to process, the final Decree must be entered into the record, evidence in the case may need to be sealed or returned, and there are a whole litany of documents that must be entered to reflect the change in ownership of various property incident to the divorce. 

Typically, your attorney will be involved in preparing and recording quitclaim deeds or other documents necessary to transfer ownership of real property, they may also choose to record promissory notes, deeds of trust or other documents to secure monies owned but not yet paid.  If retirement accounts are involved, your attorney may recommend the preparation and entry of a special order known as a Qualified Domestic Relations Order ("QDRO") to secure your interest in retirement assets.

In addition to the tasks your attorney completes, you need to be involved in a number of matters   including but not limited to: 

1. Notifying creditors to close accounts and/or to remove the other spouse's name
2. Transferring title on automobiles, boats, trailers, motorcycles, etc.
3. Changing names on bank accounts and other financial instruments
4. Changing beneficiary designations on life insurance policies, and financial accounts
5. Removing your spouse's name from, and/or obtaining new home owner's and automobile insurance

Keep in mind that when these issues are not resolved contemporaneously with the conclusion of the divorce process, they tend to get overlooked and sometimes forgotten.  Sadly, it can be be much more difficult (and expensive) to resolve after everyone has forgotten what was intended at the settlement, or after someone has move away, a file has been destroyed or an attorney has retired. 

At What Age Can a Child Choose the Parent He Wants to Live With?

As an attorney, I am frequently asked by parents the age at which their child can elect where he or she wants to live.  There is a commonly held misconception that upon turning 12 years of age, a child gets to "choose".  However this is not accurate.  Nevada law provides the a judge may consider the wishes of a child only if the child is deemed to be of "sufficient age and maturity" to form an independent decision that is not influenced by either parent. 

The Court has a great deal of discretion is making this determination.  First whether a child is of "sufficient age and maturity" is very subjective and the criteria for evaluating a child's maturity level will vary from judge to judge.  Next, the child's wishes are only one of several factors the court must take into consideration.  Other factors will include the historical roles of the parent, each parents current availability to the child, the particular needs of the child, and the current circumstances of each party.  Additionally, the Court must always take into consideration the overall facts of the case.  The standards the Court uses to evaluate facts are different depending upon whether this is the first determination being made by the court, (such as an initial custody determination at the time of a divorce), or whether this is a subsequent decision made months or even years later. 

Finally I would suggest to parents that you do not want your child to have this decision making authority.  First this puts an inordinate amount of pressure on your child.  Whether your child is 7 or 17, they still look to you, as a parent, to protect them.  Why then would you want your child to assume the emotional burden of choosing between his or her parents.   Moreover as a practical matter -- do you really want to be in a "bidding" war with your former spouse over your child.  Leaving the decision to the child, divest you of authority as a parent.  If it is up to the child to choose, then each time you discipline your child, or set a boundary, you would be at risk of having your son or daughter "choose" to live elsewhere.  This sets up an impossible situation for a parent, and is not in the child's best interest.

Requirements for a Marriage License in Nevada

Applicants must be

• 18 years of age or older
• Not nearer of kin than second cousins or cousins of half blood
• have no living husband or wife
• Social Security Number are required on the Affidavit of Application for Marriage License for all U.S. citizens. 
• Divorced Applicants are required to know the date that their divorce was granted (day/month/year), and the city and state in which the divorce was granted.

The requirements for marriage in Nevada are the same whether you are a U.S. citizen or a non-U.S. citizen.  However, non U.S. citizens should check with their local officials for any special documents that may be needed to ensure that your Nevada marriage will be recognized in your home country.

Note that the fee for a marriage license is $55.00 and can only be paid in cash.

Common Financial Mistakes Following Divorce #2

Failing to change the beneficiary designations after a divorce or separation can have devastating consequences.  Did you know that the beneficiary designation you list on certain assets such as your insurance policies or your pension plan will take precedence over your will or trust?  Even if your Divorce Decree indicates that you have the right to change the designation, or even if your former spouse waives an interest in your policy that might not be enough, if you do not also change the beneficiary designation. 

Consider the case of Redd v. Brooke, 96 Nev 9, 604 P.2d 360 (1980).  In this case a Husband and Wife divorced, their decree provided that each would assume ownership of any life insurance policies held on their own life.  Husband subsequently died without changing the beneficiary designation of his policy. The Court found that absent unequivocal language in the Decree to remove the ex-wife as a beneficiary under the policy, the ex-wife was still entitled to all of the proceeds from the policy, as Husband had the ability to change the designation but had failed to do so.  Therefore the presumption was that he still intended his ex-wife to benefit from the policy.

One of the biggest misstates people make is forgetting to update their beneficiary designations when they get married, divorced, have children or grandchildren, or when one of their designated beneficiaries passes away.  Any time you have major life changes, make sure you update your beneficiary designations as well.  You can update your beneficiary designations at any time by contacting the company who administers your policy or plan.  Generally, the company will require you to submit your request in writing, and they may require that you use their special form.  There should not be any cost to you to make this change.  Additionally, consider an annual check up with your financial planner or estate planning attorney, so that they can ensure your plan still mets your needs.

Consider the case of Redd v. Brooke, 96 Nev 9, 604 P.2d 360 (1980).  In this case a Husband and Wife divorced, their decree provided that each would assume ownership of any life insurance policies held on their own life.  Husband subsequently died without changing the beneficiary designation of his policy. The Court found that absent unequivocal language in the Decree to remove the ex-wife as a beneficiary under the policy, the ex-wife was still entitled to all of the proceeds from the policy, as Husband had the ability to change the designation but had failed to do so.  Therefore the presumption was that he still intended his ex-wife to benefit from the policy.

One of the biggest misstates people make is forgetting to update their beneficiary designations when they get married, divorced, have children or grandchildren, or when one of their designated beneficiaries passes away.  Any time you have major life changes, make sure you update your beneficiary designations as well.  You can update your beneficiary designations at any time by contacting the company who administers your policy or plan.  Generally, the company will require you to submit your request in writing, and they may require that you use their special form.  There should not be any cost to you to make this change.  Additionally, consider an annual check up with your financial planner or estate planning attorney, so that they can ensure your plan still mets your needs.

Do Your Homework Before Deciding to Keep the House

Deciding whether to keep the house as part of a property settlement in a divorce can be a very emotional issue.  Many times divorcing parents believe that they must maintain the home for their children.  Parents put themselves in a precarious financial position, under the mistaken belief that the home represents stability for their children.  However psychological studies do not bear this out.  There is no evidence that children do any better or worse depending upon whether they continue to live in the former marital residence.  Rather, the key to success for the children is the stability of their parents.

The home often represents a large percentage of the overall marital estate.  For example the value of the house could equal or even exceed retirement savings.  A dependent spouse who keeps the house and gives up retirement savings may be in a difficult situation as retirement approaches.  Sometimes the house is just too expensive to maintain.  In addition, the house may have appreciated during the marriage subjecting it to tax upon sale. 

Careful consideration must be given as to whether keeping the home make good "dollars and cents" as well as emotional sense following a divorce.  In most cases, it is a better decision to have a smaller house, less maintenance expenses, and a retirement account, rather than a large marital home.  Considering discussing this issue with your CPA or a Certified Divorce Financial Analyst before assuming that keeping the home is always a safe bet.

Can My Spouse Take My Retirement?

The short answer to this question is "yes".  Retirement benefits are treated like any other asset.  If the benefit is earned during the marriage, it is subject to division at the time of a divorce.  However only those benefits accumulated during the marriage will be counted.  If you had benefits earned earned either before or after the marriage, those assets are not subject to division. 

Additionally, keep in mind that retirement benefits often require an additional order known as a "qualified domestic relations order" (QDRO) in addition to a decree of divorce to divide a pension. 

What is Mediation?

Mediation is a problem-solving method in which a neutral, impartial third person assists the parties in resolving issues to which there is a dispute.  Mediation is informal and non binding, meaning that you cannot force the other party to mediate an agreement.  The mediator, unlike a judge, is not the decision maker, but instead helps the parties develop options.  The final decision always rests with the parties to reach a resolution that works for both of them.

Mediation is a popular alternative for family law cases because it is confidential, informal, and less expensive than traditional litigation.  Additionally, because the pace of mediation is set by the parties, it can be time-savings to parties as well, as you are not waiting for a court date to proceed.  Finally parties can decide to mediate with their attorney present to provide guidance during negotiations, or without their attorneys present, which can reduce costs. 

Once the parties have reached a mediated agreement, the mediator should prepare a memorandum of understanding and forward it to the parties' attorneys.  It is then the attorneys responsibility to put the agreement in the proper legal format to submit the agreement to the Court to be finalized. 

If you are interesting in learning whether mediation is right for you, contact your attorney, or call the The Herr Law Group for a consultation at 735-4377.

Addiction to Video Game Destroys Marriage

Did you catch the article by Mike Smith featured on Yahoo's home page on February 15th.  The article featured the story of a women who blamed the dissolution of her marriage upon her husband's addiction to a video game.  To read the full article click here.  The women is quoted as saying "It took away all of our time that we spent together. I ceased to exist in his life." Interestingly despite the loss of his marriage, the husband is still playing . . . . .

What Not To Do When Testifying in Court!

The following great tips come from Texas attorney Dick Price who authors the blog Divorce and Family Law in Tarrant County Texas

10 TIPS FOR WITNESSES: DONT GIVE THESE ANSWERS

After recently spending several days in court on various matters involving testimony, I feel like I should share some fairly common statements that should no longer be used in court. I understand that some of these are the way people may talk in a conversation, but they were not uttered in conversations. They were spoken in a formal court hearing which operates under different rules than regular social discourse. The following statements are guaranteed to not impress or convince a judge or jury in court:

1. "I have all the records at home/in my truck/at my office, etc. and I can bring them in." Sorry, but you need them right now and you can't stop court to go get them.

2. "Everybody knows that ______ is true." That's not acceptable proof. 'Everybody' needs to testify.

3. "I got it off the Internet, so I know it's right." Think again!

4. "I can get letters from lots of friends/co-workers/relatives/neighbors saying that." Have you heard of hearsay?

5. "I could have gotten the records/pictures/witnesses, etc. if I had just known that I needed them." You should prepare in advance with your lawyer and follow his or her instructions about what you need to bring.

6. "I have it all on my computer." If your computer's not with you today in court, it does no good.

7. "I can bring in lots of witnesses to prove that." If so, you should have brought them in.

8. "They're all lying about me." Sometimes conspiracies happen, but more often it seems likely to be true if a number of live witnesses come into court and say the same thing.

9. "I may have plead guilty, but I didn't really do what they said I did." Sorry, but you can't argue that for a guilty plea. If you were convicted after a trial, you could say you didn't do it and that the jury was wrong, but that still won't get you anywhere. A conviction is a conviction.

10. "Do I have to answer that?" I love to hear that from an opposing witness. That always grabs my attention. 99.9% of the time, the answer is "Yes". I want to find out what you're scared of.

Bottom line: You lose credibility and waste time by using these answers. Anyone about to testify in court should talk extensively with the lawyer for your side to prepare for your testimony. Remember, this is more than a simple conversation over coffee. There are rules and formalities imposed by the court system and you must observe them

Common Financial Mistakes Following Divorce #1

#1     NOT HAVING ENOUGH MONEY ON HAND FOR EMERGENCIES

No one expects to lose a job or become ill.  But it can happen, and the financial repercussions can be lasting.  During a marriage or partnership, the financial hardship caused by an unexpected event is sometimes less disabling because of the help of a shared burden with your partner.  If both partners are contributing to the household finances and one of you loses a job or source of income, the impact is significant but not life style threatening.  However after your divorce, if you are now the sole income earner for your family, the effect of a loss of employment, a long illness, or unexpected financial loss can be much more grave. 

A prudent strategy is to keep enough money in a separate "emergency" account, to cover your living expenses for up to six months.  You have probably heard this "six month" rule before, but it is even more critical following a divorce.  While this goal may seem out of your reach immediately following your divorce, remember you do not have to do it all at one time.  Even a few dollars a week saved toward this goal is progress, and each dollars in your "emergency" account, is greater safety for you and your family.   Only after your emergency plan is in place, are you truly ready to face your future, and embrace the new life ahead of you.