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The following information is general legal information and should not be construed as legal advice. For advice pertaining to your individual case, schedule a personal consultation with one of our experienced Las Vegas divorce attorneys. |
Frequently Asked Questions (FAQs)
The following frequently asked questions are excerpts from legal columns published by attorney Jennifer V. Abrams. Please select a category of interest.
Property Settlements
Question: My spouse's name is the only one that appears on our house's title/mortgage. How does that affect my rights to this property?
Answer: Issues surrounding property ownership are common in divorce cases, and also widely misunderstood. Nevada treats all property as community property, unless otherwise specified in a prenuptial or other agreement, so the absence of your name from your home's title or mortgage, does not rule out your ownership stake in the property.
Question: Do I have any right of ownership with regard to my spouse's business?
Answer: If your spouse established a business while you were married, with jointly-owned funds or which benefited from community labor, the courts may consider it community property to some extent. In instances where each spouse claims an ownership stake in a business, your attorney should contract a business valuator and/or forensic accountant to provide an independent opinion on both parties' claims of equity.
Question: My spouse owns a "professional practice." How will that impact my ownership claim in my divorce?
Answer: Many professionals, such as physicians, attorneys, CPAs, realtors, etc., own and/or operate a professional practice. Establishing the value of such businesses requires an experienced business valuator, as these entities follow different standards of valuation from other types of entities.
If no real property is owned by the business, these entities typically have limited assets. In which case, the business' value is based largely on "goodwill." This can mean any number of things, but typically means the value assigned to the business is based on its ability to generate future income, barring any significant changes in its future operation. Additionally, the business' reputation in the community may affect its valuation.
In sole proprietorships goodwill can depend on the business' owner, which means the business' value relies on the owner's continued service to clients and the management of the business.
Dividing such professional practices, like all jointly-owned property, is subject to applicable laws and claims made by each party in a divorce. Make sure you have an experienced divorce attorney who can handle your situation, to ensure your maximum financial benefit whether you are a sole proprietor or are married to one.
Question: I inherited assets from a relative. Does my spouse have any right to it?
Answer: Typically, all assets that are acquired through inheritance are treated under separate ownership, though they can be converted into community property. If a spouse's name is added to the title of the inherited asset, or if the asset is commingled with jointly-owned property, they may be able to claim the asset was converted to community property.
Adding your spouse's name to title of the inherited property may allow them to claim you gifted the inherited property to the community. Even without such explicit ownership transfer, your spouse could claim the assets became at least partially community in nature because the funds were commingled, meaning they were somehow combined with community assets to some degree.
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Paying for Legal Fees
Question: : I can't afford to hire a divorce attorney because my spouse controls all of our finances. What can I do?
Answer: Anyone facing a divorce in Nevada is guaranteed the right to legal representation. And regardless of who controls the finances in your marriage, each spouse has equal rights to the marital assets.
 We offer clients many payment options, including cash, checks, and all major credit cards. We also accept payment from outside parties, if for instance, you receive financial assistance from a friend or family member until you can afford to repay them via a temporary order or the proceeds from a future property settlement.
Click here to read about our fees for divorce cases.
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Prenuptial Agreements
Question: Can my prenuptial agreement be enforced even though I signed it years ago, in another state?
Answer: A prenuptial agreement (a.k.a. premarital agreement) can be enforced by the courts regardless of the date of its signature or where it was signed, given that it was entered into lawfully. Postnuptial agreements, or those signed after entering into marriage, follow the same rules.
Many circumstances influence whether a prenuptial agreement was entered into lawfully, so the agreement in question must be determined on a case-by-case basis. Generally, however, the law considers an agreement valid if:
- Both parties had independent legal representation, or the opportunity to obtain legal counsel, but voluntarily opted not to obtain representation.
- Both parties provided full disclosure of their assets and liabilities, waiving all disclosure beyond that which was provided.
- The agreement does not constrain either party from seeking child support.
- The agreement is not perceived as unfair to either party.
- The agreement is limited in how it may limit or eliminate each party's right to alimony.
Both pre and postnuptial agreements are typically unenforceable, if either party can prove:
- They did not voluntarily enter into the contract.
- They did not receive full disclosure of the other party's assets and liabilities, and; they did not waive their right to such disclosure, and; they could not have reasonably been expected to know of the other party's undisclosed property and/or financial obligations.
- The agreement is deemed unconscionable, meaning it unfairly favors one party.
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Hidden Assets
Question: If I suspect my spouse has hidden jointly-owned funds and/or other assets from me, how do I go about getting what I deserve in the divorce process?
Answer: Hidden assets can occur in divorce cases, especially those in which a spouse is historically dishonest, as well as long-term marriages that allow a spouse to systematically hide assets.
We are highly successful in locating hidden assets, using a number of different methods. While we do not disclose those methods, once we locate hidden assets, we immediately move to secure the rights, if any, to which our clients are entitled.
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Alimony
Question: How do I know if I am entitled to alimony?
Answer: Nevada law determines a spouse's right to alimony on several factors, including the marriage's duration; each party's age, health and earning potential; and the parties' relative financial conditions in the event of a divorce. There is no one-size-fits-all method of determining a spouse's right to alimony in Nevada.
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Threatening Spouses
Question: What should I do if I want a divorce, but my spouse intimidates me when I approach the subject?
Answer: Divorce often makes people say and do things to intimidate or frighten their spouse, including:
- You'll be broke if you leave me.
- You'll never see your children again.
- My lawyer is the best in town and your lawyer doesn't stand a chance.
- I'll make sure this case drags out forever.
- I am willing to make a fair deal with you. But if you hire a lawyer I won't cooperate, and you'll just settle for less.
- Good luck trying to divorce me once I file bankruptcy.
- I'll tell the kids that this is all your fault.
- I swear if you try to fight me on this...
- Wait until the judge hears how you...
Because divorce feels so unique to the person experiencing it, they often don't realize commonalities such as spousal intimidation. If your spouse threatens you with statements such as those listed above, don't even bother to respond. It is imperative that you realize these statements, and the accompanying behavior, means your spouse is no longer on your team and is working against you.
We do not allow our clients to be bullied by their spouses, and we recommend counseling for those seeking help in dealing with such situations.
Experienced Las Vegas divorce attorneys see beyond such threatening behavior, which just indicates immaturity, emotional instability and, often times, unrealistic expectations of the outcome of a divorce.
Client safety is our highest priority, regardless of gender. If you have experienced domestic violence of any kind, we can file a Temporary Protective Order (TPO) to protect you. If granted, the court will schedule a hearing to determine whether the temporary action is made permanent.
Question: What do I do if I want to keep my house, but my spouse threatens to sell it in retaliation for the divorce?
Answer: No one can force their spouse to sell their house out of spite. In fact, financial circumstances usually dictate what happens to a couple's home in a divorce. Jointly-owned real estate is usually divided based on one of the following scenarios:
- One spouse desires to retain ownership of the home - This scenario forces the party wanting to keep the house to buy out the other spouse's equity. This usually requires one spouse to qualify for a mortgage in their name only.
- Both spouses desire to maintain ownership of, and can afford, the home - This scenario considers many questions, including: Will the children stay living in the home, or will they be forced to move and change schools? Did either spouse own the home prior to marriage?; Is either spouse outbidding the other to keep the home?, etc.
- Neither spouse wants to keep, nor can they afford, to own the home on their own - This scenario dictates that the property is sold and the proceeds from the sale are divided amongst the spouses based on previous negotiations.
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Contested, Uncontested, and Joint Petition Divorces
Question: What is the difference between a contested and an uncontested divorce?
Answer: Spouses choose to file a contested divorce when they fail to agree to all of the divorce issues on their own. Filing such a divorce does not guarantee the case will become combative. In fact, the majority of divorces filed in Nevada are originally filed as contested, but then get resolved through negotiations and/or court hearings.
Question: I have already reached a mutual agreement with my spouse on the terms of our divorce. Can we both use the same attorney?
Answer: In short, yes, the law allows you both to be represented by the same counsel, which is usually done in a joint petition divorce. Despite the legality, however, most experienced divorce attorneys do not do joint petitions. Among the biggest reasons is that an attorney cannot fulfill their duty to represent a client's best interests if they are simultaneously representing the other party. By its very nature, an attorney who gives good advice to one party would inversely cause harm to the other party, who is also their client. This would be a direct violation of their oath of counsel to either client.
An attorney who is unable to give you beneficial legal advice is naturally a detriment to your case, no matter if both spouses agree to the terms upfront. Additionally, should either spouse reconsider the agreement, or a conflict occurs (which is not uncommon in divorce proceedings), the attorney previously representing you and your spouse is then barred from representing either spouse against the other. This results in wasted legal fees, and forces each party to hire and compensate new legal counsel.
Another consideration in divorces where spouses are represented by a single attorney is that one spouse may potentially claim the divorce is invalid after the fact, having the agreement overturned based on claim they did not have access to independent legal advice when they entered into it.
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Child Related Issues
Question: How do I protect my children while I am going through my divorce?
Answer: Depending on your circumstances, there are many ways you can protect your children. The one thing you must remember is, regardless of developments in your case, you must never try to influence your children to choose between you and your spouse. Most parents who try such attempts at alienating their spouse find the efforts backfire against them. The best method is for both spouses to reinforce with their children that you love them and will ensure their wellbeing.
Question: My spouse's actions toward me make it difficult to support my children's relationship with him/her. What should I do?
Answer: If you have not filed any sort of protective order against your spouse with regard to contact, you should keep them informed of any and all events in your children's lives, including school events, special functions, etc. Children take pride in themselves as a result of parental involvement in their lives. In the event you and your spouse are unable to maintain civil phone contact, we recommend using an electronic medium such as email. Again, never speak about your spouse in front of your children in a way that could diminish their relationship, and be sure never to put them in a position of taking sides.
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Changing Divorce Lawyers and Family Court Judges
Question: My divorce is now filed. Am I legally allowed to change attorneys?
Answer: Yes, the law allows you to hire legal counsel to handle your case, regardless of when the selection occurs. But be advised that it is beneficial to your case and any future matters that you choose an attorney you trust in the first place, because such matters are life-altering. If you feel you can no longer trust your attorney due to any circumstance, it is your right, and in your best interest, to seek a new attorney you deem more trustworthy.
We have taken over many ongoing divorce cases due to a clients' dissatisfaction with their legal counsel. We welcome you to call our law firm if you find your current attorney is not meeting your individual needs.
Question: I would like to have my case moved to a different judge. Is this possible?
Answer: Once filed, divorce cases are typically assigned to family court judges at random. The only chance to have the case moved is during a brief window of opportunity after the action is filed. This is known as a peremptory challenge.
You may not wait for a judge to make a decision in your case to file such a challenge. And regardless if your attorney finds the first judge is desirable to your case, your spouse is still legally entitled to request that the case be moved to a new judge.
Beware that even if your attorney believes the first judge assigned to your case is not optimal, you do not have the right to choose the second. Thus, your attorney may find the second judge even less desirable, but the first judge is then excluded. You should consult an experienced Las Vegas divorce attorney to help you decide whether to file a peremptory challenge or not.
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