Las Vegas Office
3859 S Valley View Blvd #2
Las Vegas, NV 89103
Tel:702-929-6777
Fax:718-888-0922
E-mail: VegasDivorce@gmail.com

New York Office
41-25 Kissena Blvd. Room #107
Flushing, NY 11355
Tel: 718-475-6111
Fax: 718-888-0922
E-mail: VegasDivorce@gmail.com
 

Reference:
No Fault Divorce VS. Grounds for Divorce*

You can get a "no fault" divorce in Nevada! But you may also want understand grounds divorce as well.

Q: What are the grounds (legal reasons) for divorce in Nevada?

"No fault" divorce describes any divorce where the spouse suing for divorce does not have to prove that the other spouse did something wrong. All states allow divorces regardless of who is at "fault."

To get a no fault divorce, one spouse must simply state a reason recognized by the state. In most states, it's enough to declare that the couple cannot get along (this goes by such names as "incompatibility," "irreconcilable differences" or "irremediable breakdown of the marriage"). In nearly a dozen states, however, the couple must live apart for a period of months or even years in order to obtain a no fault divorce.

Q. Is a no fault divorce the only option even when there has been substantial wrongdoing?

In 15 states, yes. The other states allow a spouse to select either a no fault divorce or a fault divorce. Why choose a fault divorce? Some people don't want to wait out the period of separation required by their state's law for a no fault divorce. And in some states, a spouse who proves the other's fault may receive a greater share of the marital property or more alimony.

The traditional fault grounds are:

  • cruelty (inflicting unnecessary emotional or physical pain) -- this is the most frequently used ground
  • adultery
  • desertion for a specified length of time
  • confinement in prison for a set number of years, and
  • physical inability to engage in sexual intercourse, if it was not disclosed before marriage.

Q. What happens in a fault divorce if both spouses are at fault?

Under a doctrine called "comparative rectitude," a court will grant the spouse least at fault a divorce when both parties have shown grounds for divorce. Years ago, when both parties were at fault, neither was entitled to a divorce. The absurdity of this result gave rise to the concept of comparative rectitude.

Q. Can a spouse successfully prevent a court from granting a divorce?

One spouse cannot stop a no fault divorce. Objecting to the other spouse's request for divorce is itself an irreconcilable difference that would justify the divorce.

A spouse can prevent a fault divorce, however, by convincing the court that he or she is not at fault. In addition, several other defenses to a divorce may be possible:

  • Collusion. If the only no fault divorce available in a state requires that the couple separate for a long time and the couple doesn't want to wait, they might pretend that one of them was at fault in order to manufacture a ground for divorce. This is collusion because they are cooperating in order to mislead the judge. If, before the divorce, one spouse no longer wants a divorce, he could raise the collusion as a defense.
  • Condonation. Condonation is someone's approval of another's activities. For example, a wife who does not object to her husband's adultery may be said to condone it. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she condoned his behavior.
  • Connivance. Connivance is the setting up of a situation so that the other person commits a wrongdoing. For example, a wife who invites her husband's lover to the house and then leaves for the weekend may be said to have connived his adultery. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she connived -- that is, set up -- his actions.
  • Provocation. Provocation is the inciting of another to do a certain act. If a spouse suing for divorce claims that the other spouse abandoned her, her spouse might defend the suit on the ground that she provoked the abandonment.

*Grounds (Reasons) for Divorce by State

State Fault grounds No-fault grounds Separation Length of separation
Alabama • • • 2 years
Alaska • •   2 years
Arizona •
Arkansas • • 18 months
California • 12 months
Colorado •
Connecticut • •1 18 months
Delaware • 12 months
District of Columbia • • 16 months
Florida • 12 months
Georgia • 18 months
Hawaii • • 2 years
Idaho • • 5 years
Illinois • •2 2 years
Indiana • 2 years
Iowa • 12 months
Kansas • 18 months
Kentucky • 18 months
Louisiana • • 180 days
Maine •
Maryland • • 1 year
Massachusetts • 1 year
Michigan • 1 year
Minnesota • • 180 days
Mississippi •
Missouri •
Montana •
Nebraska •
Nevada •
New Hampshire •
New Jersey • • 18 months
New Mexico • •
New York • • 1 year
North Carolina • • 1 year
North Dakota •
Ohio • • 1 year
Oklahoma •
Oregon
Pennsylvania • • 2 years
Rhode Island • • 3 years
South Carolina • • 1 year
South Dakota •
Tennessee • •4 2 years
Texas • • 3 years
Utah • • 3 years
Vermont • • 6 months
Virginia • •5 3 years
Washington
West Virginia • • 1 year
Wisconsin
Wyoming

F & Q

A) Divorce Questions

B) Marital Property Questions

C) About Marital Separation Agreements

D) Equitable Distribution States v. Community Property States

A) Divorce Questions

Q1. If I leave the house can my spouse charge me with desertion?

If Your spouse's conduct does not warrant your leaving, he or she may be able to sue you for actual desertion. Therefore, absent physical abuse, it would be wise to consult your lawyer before leaving home. Your own conduct is very important if you wish to succeed in getting a divorce on fault grounds of adultery and actual or constructive desertion. You must not be guilty of any misconduct which would justify the desertion. You must not consent to the desertion. If you consent, it would constitute a voluntary separation. There is a difference, however, between consenting and giving in to something you cannot avoid.

Q2. If I leave my spouse because of abuse, can I be charged with desertion?

Desertion is not a crime, so if you leave your spouse you cannot be criminally prosecuted for it. If your spouse sues you for divorce on the ground of desertion, you can respond by claiming and proving that it was actually his or her abusive behavior which forced you to leave. In fact, if you have left your home in immediate response to a pattern of abuse, you have your own ground for a limited divorce called "constructive desertion." In general, "Constructive desertion" occurs when a party is forced to leave the home as a result of abuse.

Q3. How long will the divorce take?

The length of time it takes to get a divorce varies from state to state, and is dependent upon the type of relief sought and type of hearing that is necessary. An uncontested divorce will take the least amount of time in most jurisdictions and can take as little as 90 days in some states. In other states, the parties have to live separate and apart for at least a year with no sexual relations. in New York it will takes 3-4 years for contested divorce case.

Q4. Can I date while we are separated?

Parties can charge one another with adultery at any time and the existence of a separation agreement does not protect a party from being so charged. Any behavior on your part which would indicate "inclination" or "opportunity" could be used against you to establish adultery until your divorce is final.

Q5. Can my spouse's lawyer represent both of us?

Generally, it is a conflict of interest for an attorney to represent and advise parties to a divorce.

Q6. What health insurance rights do spouses and dependent children have after divorce?

In most jurisdictions, a court has the authority to require either parent to name a child in the parent's health insurance coverage if the parent can obtain health insurance coverage through an employer or any form of group health insurance coverage, and the child can be included at a reasonable cost to the parent.

B) Marital Property Questions

Q1. Is an engagement ring marital property?

No. It was acquired prior to the marriage.

Q2. Is a medical/law degree marital property?

Generally No. Although the value of a professional practice is often considered when calculating spousal support.

Q3. Do I lose the house if I commit adultery?

Not necessarily. It depends on many factors and is decided on a case by case basis.

Q4. Can I/my spouse take whatever I/my spouse want(s) of the furniture when I/my spouse leaves(s)?

It is best if the parties can agree on a division of property. If there is a dispute and the police are called, the police will only allow a spouse to take clothing. In many cases a spouse leaves and takes whatever he/she wants while the other is not present. At the time of the divorce, a Judge can decide whether any items should be returned or one spouse is entitled to a marital award (money) in lieu of the property taken.

Q5. Am I responsible for my spouse's debts?

Not unless you co-signed or signed as a guarantor.

Q6. My spouse is an alcoholic and was in a bad accident. Can my house be taken to pay for the victim's expenses?

Joint assets cannot be attached if only one spouse is liable for the bill or debt. If the car was in joint names, both the driver and the owner can be liable and joint assets such as a house can be attached. Ways which may avoid this, (1) do not have the car owned jointly by both spouses (2) insurance should be a reasonable amount and not the minimum.

Q7. Should I co-sign for the home equity loan or guarantee a car loan or mortgage if we are not getting along?

Absolutely not.

C) About Marital Separation Agreements

The Marital Separation and Property Separation Agreement (MSA) that you create using our Rapidocs document assembly software, will cover every major circumstance and enable you to deal with the following issues:

  • Visitation
  • Child Support Payments
  • Spousal Maintenance
  • Property Division
  • Division of Debts
  • Health Insurance
  • Disposition of the Marital Home
  • Tax Issues
  • Future Dispute Settlement

Ordinarily you execute an MSA before you file your divorce papers, normally at the time that you separate. This allows you to negotiate and execute your MSA and then to file for your divorce as soon as any required waiting period(s) has/have been completed.

Q1. What is a Marital Separation Agreement?

A marital separation agreement, also known as a property settlement agreement, is a written contract dividing your property, spelling out your rights, and settling problems such as alimony and custody. A marital separation agreement may be drawn before or after you have filed for divorce �?even while you and your spouse are still living together.

Q2. Why is a Marital separation agreement important?

If you have no marital property, no joint debts, and no children, you probably don't need a marital separation agreement to get a no-fault divorce. However, if you want to provide for the future governance of your relationship, as well as provide additional evidence to the court about the day that you separated, you should have a Marital Separation Agreement. An agreement leaves no doubt about the details of the ending of your marriage relationship. It is better to have a clearly written agreement, rather than rely on verbal understandings.

Q3. Do I have to file a Marital Separation Agreement with the court?

When you initially execute your Marital Separation agreement you do not have to file the Agreement with the Court to be effective. When you begin the divorce proceedings you will, in most jurisdictions, attach the Marital Separation Agreement to the complaint and ask the court to merge, but not incorporate, the Agreement into the final judicial decree. If the Marital Separation Agreement is incorporated into the decree, it becomes a court order and is enforceable by the court's contempt powers. If you don't incorporate it into the decree, it simply becomes a contract between you and your spouse, which you later have to sue in a separate action to enforce. If the separation agreement is not incorporated into the divorce decree, and your spouse violates the agreement you can still seek money damages for the violation of the agreement, but it is easier and faster if the agreement is incorporated into the divorce decree.

Q4. What is the difference between a contested or uncontested divorce?

Divorces are either contested or uncontested. Contested divorces are those in which the respondent disputes any issue in the case - the divorce itself, the property division, child custody, alimony, etc. Uncontested divorces fall into two categories - (1) Consent Divorces - the parties agree on all major issues; and (2) Default causes - where the respondent fails to appear to contest the divorce or any issue in it, either because he or she chooses not to oppose it, or because he or she cannot be located. By entering into a Marital Separation Agreement you make your divorce an uncontested divorce.

Q5. How long are the parties bound by a Marital Separation Agreement?

A separation agreement is a legal document that will bind you through many years and determine your rights, obligations, and responsibilities from your marriage. You and your spouse can amend the agreement if you both consent to the changes; or it can be modified by a court order, provided the agreement does not specifically state that the agreement is not subject to any court modification. Nevertheless, the court can always modify provisions in an agreement regarding the care and custody of any minor children.

Q6. Do the courts review the fairness of a Marital Property Settlement Agreement?

In an uncontested divorce, the court nearly always approves the agreement of the parties if it is generally fair and the court is convinced that the agreement was entered into by both spouses without fraud or coercion. Often the court may want to review financial affidavits attached to the agreement in order to determine its fairness.In negotiating your agreement, you should be guided by how a court is likely to divide your property, award custody and child support, and deal with other issues.

Q7. What is the difference between "marital property" and "non-marital property"?

In an "equitable distribution" state, all property acquired during the marriage is "marital property" and all property owned before the marriage is "non-marital" property. Gifts or inheritances to either spouse during the marriage is non-marital property.

Q8. Can a husband and wife agree on how to divide their property?

Yes, if the agreement is written and is approved by a court in the divorce proceeding. Provision must be made for child support if there are any children and for payment of debts.

Q9. If the couple signed a prenuptial (ante-nuptial) agreement before the marriage, can it be enforced?

A prenuptial agreement for support and division of property may or may not be upheld, depending upon the circumstances. Both prospective spouses should seek legal counsel before signing such an agreement.

Q10. What is the basis for a child custody determination by the court?

First and foremost, the best interests of the child, taking into account the ability of each spouse to raise the child, what would be the most stable environment for the child and other factors. The respective spouses may be required to submit to an evaluation by officers of the court to determine these factors.

Q11. What provision does Nevada make for child support payments?

Ordinarily, the spouse who has primary physical custody of a child will be awarded child support. In Nevada, the precise child support amount is determined as a percentage of the non custodial parent's gross monthly income (income before taxes and any other deductions are taken out):

  • 1 child: 18%*
  • 2 children: 25%*
  • 3 children: 29%*
  • add 2% for each additional child

*Both parties income: (A+B )x 18%= total child support amount(C), A and B pro-rate from C

In Nevada, with rare exceptions, the minimum per child is $100 per month. Until July 1, 2002, the maximum per child is $500 per month. However, beginning July 1, 2002, the presumptive maximum will be tied to income ranges.

The court may "deviate" up or down from the resulting amount to compensate for such things as day care costs, the cost of medical insurance, visitation expenses, the noncustodial spouse's responsibility for support of other children, and other factors identified in the statute. These factors are supposed to be identified by the court in its order.

Q12. Can child support payments be modified?

You may have your Nevada child support order reviewed and adjusted, if warranted, by state courts at least every three years. You may seek modification sooner if circumstances have changed significantly since your last order. Suppose I was divorced in another state and child support payments are owed to me. How do I make my former spouse pay the child support?

Q13. What is the basis for an award of spousal support (alimony)?

There is no precise statutory guidance for spousal support as there is for child support. The court considers the relative earning capacity of each spouse, the possibility of education or training to increase the earning capacity of a spouse, whether a spouse has been out of the work force for a long time, and other factors. Temporary spousal support may be made while a divorce case is pending, and an award of alimony may be temporary or permanent.

D) Equitable Distribution States v. Community Property States

1) Equitable Distribution States:

In an equitable distribution state, the court "equitable divides" the marital property. The court normally considers the length of the marriage and the age, health, conduct, occupation, skills and employment of the parties.

With equitable distribution, all property acquired during the marriage is marital property and all property owned before the marriage is non-marital property. Gifts or inheritances to either spouse during the marriage are non-marital property. This doesn't mean non-marital property is safe in a divorce. The court may leave this property with the respective spouses, but courts in most equitable distribution states apportion these assets between spouses as they do with marital property. In fact, one purpose of a pre-marriage agreement is to keep separate the couple's pre-marriage assets.

The following are equitable distribution states, by either statute or common law:
Alabama, Alaska, Arkansas, Colorado,Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky,Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, West Virginia, Wyoming

2) Community property states:

Community property states, in contrast, require equal division of the community property in the event of divorce. This includes property acquired by each spouse prior to the marriage, as well as property acquired thereafter.

There are nine community property states:( property must in the following states)

Arizona | California | Idaho | Louisiana | Nevada | New Mexico | Texas | Washington | Wisconsin

To understand the theory of asset division in community property states, you must first understand that community property states view marriage as an equal business partnership.
The law then divides property into two categories: community property and separate property. Community property is anything acquired jointly, or by either spouse, during the marriage.
The law then divides property into two categories: community property and separate property. Community property is anything acquired jointly, or by either spouse, during the marriage.
Separate property is from one of two sources:
a) Property that each spouse owned individually before the marriage and retained in his or her name after the marriage.
b) Property that each spouse received as a gift or inheritance either before or during the marriage.

Each spouse's separate property remains separate property and is not subject to division upon divorce. if you exchange one item of separate property for another, the new property continues as separate property. So too if the proceeds of sale of separate property are used to acquire new property.

 

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