Category Las Vegas Family Law

Nevada Custody Law

Physical and legal custody involved separate legal rights and control distinct factual scenarios. In determining both types of custody, the “sole consideration is the best interest of the child.” Parents are encouraged to cooperate and negotiate a custodial arrangement for their children before going to court and allowing a “stranger” to make the decision. There are no winners in contested custody litigation. It is expensive, neither party is generally satisfied and the children usually suffer.

1. Legal Custody

“Legal custody involves having basic legal responsibility for a child and making major decisions regarding the child, including the child’s health, education, and religious upbringing.” Sole legal custody vests these rights with one parent and while joint legal custody vests this right with both parents. Sole legal custody is extremely rare. There is a presumption in Nevada that parents will share the joint legal custody of their children. “Joint legal custody requires that the parents be able to cooperate, communicate, and compromise to act in the best interest of the child.” In joint legal custody cases, the parents must consult with each other to make major decisions regarding the child’s upbringing. Joint custody can exist regardless of the physical custody arrangement.

2. Physical Custody

Physical custody involves the time that a child physically resides with each parent. During this time, the child lives with the parent and that parent provides supervision for the child and makes the day-to-day decisions regarding the child. It is the public policy of Nevada that minor children have frequent associations and a continuing relationship with both parents and parents sharing the rights and responsibilities of child rearing.

Joint custody is generally equally, but the Nevada Supreme Court has recently defined joint custody as each parent having at least 40% of the time with the child. If a parent does not have 40%, the other parent has primary custody.

Besides the obvious, the physical custody arrangement is important for three reasons. First, it determines the standard for modifying physical custody. It is more difficult to modify a custodial arrangement when one parties has primary physical custody of a child, rather when the parties share physical custody. Second, if the parties share the joint physical custody, it is more difficult for a parent to obtain permission to move out of state with a child than it would be for a parent who has the primary physical custody. Lastly, the physical custody arrangement has a direct impact on the amount of child support awarded in most cases.

See Rivero vs. Rivero, 125 Nev. Ad. Op. 34 (August 27, 2009)

 

Types of Attorneys

The Negotiator:

The negotiator’s goal is to settle your case. He understands that litigation is time consuming and expensive, neither of which serve the client’s best interest. He counsels his clients about the pros and cons of settling vs. litigating. The negotiator determines his client’s priorities early on so that he can devise a plan. He believes that there are things worth fighting over, and things that are not worth fighting over. A client who does not want to fight, and wants issues resolved calmly and quietly should hire the negotiator.

The Antagonist:

The antagonist riles her clients up. She loves chaos in her own life, and so she creates chaos in other people’s lives. She knows exactly how to turn a small issue into a major issue. She finds a problem with every settlement offer and takes allegations against her client personally. After the antagonist has riled herself up, she projects her stress levels onto her clients. Her clients leave meetings feeling angry and irrational. If you want to increase attorney’s fees and put yourself at risk of paying for the opposing party’s fees, hire the antagonist.

The Shark:

The shark is frequently viewed as the aggressive lawyer, but he is just a hunter. He can smell weakness from a mile away. His colleagues try to avoid litigating against him. The shark is strategic. He always has a Plan A, Plan B, and Plan C. He will prey on the opposing side, and do everything in his power to destroy the opposing side. The shark is the right fit for clients who want revenge. But clients who want to hire the shark, should make sure they have deep pockets. The shark lawyer comes at a high price. As a wise man once said, principle costs money. If a client’s main goal is to prove a point, she better be ready to pay for it.

The Chess Player:

The chess player is calm and collected. She rarely gets upset. She treats everyone with respect and holds herself to a high ethical standard. The chess player re-reads her emails before she clicks send. She is careful with her words, and avoids saying things she cannot take back. She often gives herself a day to cool off before she responds to an antagonist. The chess player is sensitive to the client’s financial position and tries to conserve the client’s money. But the chess player also knows that certain things need to be done in order to get the client the results he wants. The chess player strategically navigates the case in order to get the best result possible with the client’s budget in mind.

The Warrior:

The warrior wants to win. He will do anything and everything he can to make sure he prevails. The warrior cares about making money, but he cares more about winning. The warrior will take a case up to the Supreme Court for free just to get another win on his record.

The Professor:

The professor knows the law better than anyone else. She can pinpoint cite statutes and case law off the top of her head. She knows the intricacies of the law so well that even judges listen to her opinion. The professor loves to read and she loves to write. Her articles are frequently published and she is often called upon to teach classes and lead discussions. Many of her colleagues admire her and treat her opinion like gold. The professor does not take on many new clients, but when she does, her client likely face complicated issues that require in-depth legal analysis.

The Juggler:

The juggler is too busy for his own good. He never says no. He takes on every case and pounces on every opportunity. His rates are affordable but this comes with its own set of drawbacks. He can be hard to get ahold of and often seems disorganized. He means well and is personable, but sometimes his clients feel like they are just another number on his list. The juggler’s clients have a very tight budget and better be okay with infrequent lawyer-client communication.

Joint Physical Custody Possible when Parents Live in Different States

Joint physical custody might actually be possible when parents live in different states. Under Nevada law, each parent must have their child at least 40% of the time in order to constitute joint physical custody. 40% of a calendar year is 146 days, meaning each parent must have custody of their child no less than 146 days per year. The proposed schedule would result in the Clark County parent having the child for all school days and some weekends, with the Out-of-State parent having the child for has many non-school days as possible, including school breaks and some additional weekends on non-holiday weekends. The schedule would go as follows:

Out-of-State Parent:
Summer Break: 81
Winter Break: 16
Spring Break: 10
Long Weekends: 17
Additional Weekends: 14
Thanksgiving Break: 9
Total 147

Clark County Parent:
School Days: 176
Weekends: 42
Total: 218

Grand Total of Days Accounted For:
Grand Total: 365

This schedule would require quite a bit of planning on both parents’ parts, as the exchanges would take place the day school gets out for a weekend or break and the day before school resumes, but it is possible under the current 2017-2018 School Calendar for Clark County School District.

Text Messaging Is Increasing Auto Insurance Rates

A recent article in BusinessWeek magazine describes how text messaging and other technologies are increasing the costs of automobile insurance. More people are driving, which means more accidents. More people are distracted by texting, email and other functions on their smart phone. These distractions are not only causing more accidents and higher rates, but more deaths. Further, health care costs related to accidents are higher and because of the technology in new automobiles, repair costs are also higher. The bottom line is that we are all likely to see increasingly higher automobile insurance rates in the coming years.

Willful Underemployment Relating to Child Support and Alimony

A familiar but unfortunate situation that arises in divorce and custody cases is what is known as “willful underemployment.” Sadly, in the bitterness and anger that often goes hand-in-hand with family law, some individuals would rather reduce – or eliminate – their income than pay support for their child or spouse.

First, let’s discuss the forms of support that are sometimes awarded pre-trial or pre-evidentiary hearing in divorce and custody cases. First and foremost, there is child support. NRS 125B.020 states that both parents of a child “have a duty to provide the child necessary maintenance, health care, education and support.” Subsection (4) of this statute makes it clear that this obligation does not only extend to children born to married couples, but parents that are not married as well.
The next statute – NRS 125B.030 states that the “physical custodian” of a child may recover a “reasonable portion of the cost of care, support, education and maintenance” from the other parent. The parent who will pay support and the parent who will receive it may differ depending upon the type of custody the parents have. If a parent has sole physical custody (visitation to the other parent is at the discretion of the custodial parent) or primary physical custody of a child (one parent has the child more than 60% of the time), that parent is considered the “custodial” parent and has the right to receive support from the noncustodial parent.

If two parents have joint physical custody of the child, the court considers both parents’ incomes in determining child support. The amount of child support is statutory, and based upon a percentage of gross monthly income. The amounts are outlined in NRS 125B.070, and are as follows: 18% for one child, 25% for two children, 29% for three children, 31% for four children, and an additional 2% for each additional child. The court can deviate from these percentages based on certain narrow considerations.

If, for example, a parent has one child and cares for that child 70% of the time, he or she has primary physical custody and is entitled to child support from the other parent at 18% of his or her gross monthly (meaning pre-tax) income. If that same parent, however, shares joint physical custody with the other parent and they both care for the child 50% of the time, the court would use the formula outlined in Wright v. Osburn. Under that formula, the child support award would be 18% of the higher-earning parent’s gross monthly income minus 18% of the lower-earning parent’s gross monthly income.

In addition to child support, the court also has the authority to make an award of alimony in divorce cases, which usually takes the form of either monthly or a lump-sum payment from one spouse to the other after the divorce is finalized. Unlike child support, there is no statutory formula the court uses to determine an alimony award, and the amount and duration of alimony is largely up to the judge. There are factors the court considers, which are outlined in NRS 125.150, and include the income and earning capacity of each spouse.

In looking at the law regarding child support and alimony, it is obvious how a person voluntarily reducing their income could have a drastic effect. Willful underemployment can take several forms. A person may voluntarily reduce his or her work hours to reduce their income, for instance. A person who regularly works overtime may stop working overtime. Some individuals quit their jobs entirely to avoid support. There are even instances where an individual “plans” for a divorce by stashing money away to support him or herself so that they can quit their job and have no income for the purposes of child support or alimony.

Individuals who take these actions to reduce their income often believe that they can “cheat” the system and avoid paying support or lower their support obligations until the divorce or custody matter is finalized. The law and the courts, however, are prepared for these situations.

For child support, NRS 125B.080(8) states: “If a parent who has an obligation for support is willfully underemployed or unemployed to avoid an obligation for support of a child, that obligation must be based upon the parent’s true potential earning capacity.” In the past, it was somewhat unclear how a parent could show that the other parent was willfully underemployed “to avoid an obligation for support of a child.” The landmark case on the subject, Minnear v. Minnear, was decided in 1991, and clarified that when there is evidence of willful underemployment, a rebuttable presumption arises that the willful underemployment is for the purpose of avoiding paying child support. The presumption can only be overcome if the underemployed parent can show a reason other for avoiding support why he or she is underemployed.

When the court is satisfied that a parent is willfully underemployed for the purposes of avoiding child support, instead of basing child support off that parent’s actual income, it will determine the parent’s “true potential earning capacity” and base child support from that instead. For example, if a parent was earning $3,000.00 per month until he or she was served with a custody complaint, after which that parent reduced his or her hours to reduce that income to $2,000.00 per month, and the court finds that parent is willfully underemployed, instead of child support being $360.00 per month (18% of $2,000.00), the court could order child support of $540.00 per month (18% of $3,000.00).

When willful underemployment is argued in alimony cases, unlike child support, the court is not required to make a finding as to why an individual is willfully underemployed. The court can use a spouse’s income from prior to the willful underemployment, or use evidence of that spouse’s expenditures (especially when those expenditures are more than the spouse claims to make) to set an alimony award.

It is therefore much more difficult for a spouse/parent to try to “cheat” the system by taking actions to reduce his or her income to avoid paying support. An experienced attorney can bring a clear and concise argument in front of the court to request the court use an underemployed spouse/parent’s earning capacity, as opposed to his or her income, to set a child support and alimony award.

Registration is now open for the

Annual State Bar of Nevada Advanced Family Law Program,

December 7, 2017, 8:45 a.m. – 4:45 p.m.

3100 W. Charleston Blvd.
Las Vegas, Nevada

Register at: http://sbn.peachnewmedia.com/store/seminar/seminar.php?seminar=97989

The program last year sold out early.

Separate Property and When It Can Be Divided

We have often had clients consult with us and neglect to mention separate property assets, believing the property to be their property only, and not subject to division by the family court.

Not so fast. Many litigants assume that if an item is their “separate property,” it will have absolutely no bearing upon their divorce and will simply be awarded to them without much argument. But like most other legal issues, what is and is not separate property and how that property is adjudicated is not so cut and dry, and a client should never neglect to disclose such property to their attorney.

Nevada Revised Statutes, Chapter 123 governs the property rights of married couples. NRS 123.130 defines “separate property” as property that has been “owned … before marriage” or “acquired … afterwards by gift, bequest, devise, descent or by an award for personal injury damages[.]” Simply stated, separate property typically falls into one of four categories:

1. Property owned prior to marriage;
2. Property given to one spouse as a gift;
3. Property left to a spouse in a will or acquired through probate; and
4. Property obtained by a spouse as an award in a personal injury action.

NRS 123.220 defines community property as any property (other than separate property) acquired after the marriage, with a few narrow exceptions.

The first few considerations when a spouse is asserting a separate property interest in a piece of property is where the funds to purchase that property came from and what happened to the property after it was purchased. If separate property is used to purchase property that is then placed into both parties’ names (i.e., as joint tenants), there is a presumption that one-half of the value of the property was a gift from the spouse with the separate property to the other spouse. This presumption is overcome only by “clear and convincing evidence.” This situation is most often seen with real estate – for example, a spouse uses their inheritance to purchase a family home and places their spouse’s name on the deed. Going back to find clear and convincing evidence that the home was purchased with separate funds is often time consuming and complicated.

Another separate property consideration is the opposite situation: Property is purchased with community funds and held in joint tenancy and one spouse uses their separate property to make improvements on that property (for example, a spouse uses community funds to purchase a home, and one spouse uses their inheritance to renovate the kitchen). In this situation, NRS 125.150(2) allows the court to provide for a reimbursement of the separate property used for the improvement. The court, however, is not obligated to provide such a reimbursement, but considers three factors in deciding:

1. The intention of the parties in placing the property in joint tenancy;
2. The length of the marriage; and
3. “Any other factor which the court deems relevant.”

In divorces involving separate property, a litigant will often hear the word “commingling.” Commingling is simply a legal term for “mixing.” If separate property is “mixed” with community property, it can stop being separate property – in fact, a presumption arises that the commingled funds are then community funds.

An easy to understand example of this would be the following scenario: Spouse receives a personal injury settlement for a slip and fall they had in a local business. When spouse receives that check, it is their separate property. As soon as spouse deposits that check into the joint bank account they share with their spouse, a presumption arises that the money is community property.

Let’s say a spouse manages to keep their separate property separate (i.e., by keeping it in a bank account in only that spouse’s name) through the entire marriage, there is still no guarantee that spouse will be awarded the property in a divorce.

When a divorce is filed, the court divides property pursuant to Chapter 125 of the Nevada Revised Statutes. The court is under an obligation to made an “equal disposition” of the couple’s community property. What many litigants do not realize, however, is that the court has the right to make an unequal division of property “if the court finds a compelling reason to do so[.]”

Further, per NRS 125.150(5), the court has the right to “set apart” part of a spouse’s separate property for the support of the other spouse or for the support of their children “as is deemed just and equitable.”

Many blogs and other dubious websites present Nevada property division law as simple and straightforward – that property is either separate or community, and that separate property stays with its owner and community property gets split in half. Upon review of Nevada statutes and case law, however, it becomes apparent that the law grants judges broad discretion in property division and the issue is not as simple as it seems. This makes having an experienced attorney all the more important when litigating these issues.

The Importance of Maintaining a List of Your Medical Providers who Treat You for Your Injuries Received Because of an Accident

If your attorney doesn’t know of ALL of your treating providers then your claim could end up being undervalued. Not only could this result in your settlement being less than it should, but you could also end up owing an outstanding balance from a medical services provider who should have been paid as a part of your settlement. It is important to keep track of ALL of your treating providers, their contact information and the dates you saw each provider. The better records you maintain, the better an attorney can prepare for your case and more efficiently negotiate your settlement.

We offer some simple advice: purchase a cheap notebook and keep track of all your treating providers along the way. For each new provider, write the name of the doctor, and if that person is a part of a group, then the name of the group. Write the doctor’s office address and phone number because certain providers have multiple locations. Write the first day of treatment, and ask the doctor or his/her staff for the address and telephone numbers where the records and bills can be obtained. You may also accomplish the same purpose by making these notes on your computer or smart phone, but be sure the information is regularly backed up.

If you are injured because of someone else’s negligence and follow the right steps, it is possible that you can recover for those injuries from the at-fault party. The attorneys at vegas west attorneys will guide you through those steps and assist you throughout your claim.

Summerlin Law Group is now:

vegas west attorneys

We are also pleased
to announce the following:

We have expanded our office and moved to 5594 S. Fort Apache, Suite #120, Las Vegas, Nevada 89148. Our new office is in an office park on Fort Apache just north of Russell.

Joe Riccio has been awarded with an “AV” rating by Martindale-Hubbell. AV Preeminent is a significant rating accomplishment voted on by Joe’s peers and is a testament ranking him at the highest level of professional excellence. Joe practices primarily in the areas family law, criminal law and personal injury.

Carli Sansone was recently published in the May 2017 edition of Nevada Lawyer magazine. The article discusses the possible risks and benefits that might occur when lawyers bring their dogs to work. Carli practices primarily in the areas of family law, real estate/landlord/tenant and personal injury.

Attorneys Alicia Exley, Gary Zernich and Boris Avramski have recently joined the firm. Gary practices primarily in the areas of personal injury and family law. Alicia practices primarily in the areas of civil litigation, family law and criminal law. Boris practices primarily in the areas of personal injury, immigration, family law and bankruptcy.

 

Boris Avramski Has Joined vegas west attorneys

Boris was born and raised in Bulgaria and speaks, reads, and writes fluent Bulgarian.  Boris also has a fair comprehension of Russian.  Boris arrived in the United States in 1991, at the age of 16, to perform in various circus troupes, including Circus Circus in Reno and Las Vegas.

In 1997, Boris was awarded a presidential scholarship to attend the University of North Dakota.  At UND, Boris was a member of the swimming and diving team and received the Athletic Director’s Academic Achievement awards twice.  In addition, he was on the Dean’s List every year and became a member of the ΒΓΣ International Business Honor Society, which accepts only the top 10% of students, who major in business administration.  Boris was also awarded the J.F.T. OConnor Scholarship Award in four consecutive years, the General Mohamed Kabbaj Scholarship, in four consecutive years, and the Frasca International Aviation Award in 2000.  In 2001, Boris graduated Summa Cum Laude with a bachelor of business administration in aviation management.

In 2008, Boris graduated the University of North Dakota School of Law with distinction.  In law school, he was a member of the Student Trial Lawyer Association and was enrolled in the clinical education program, where he learned the practice of law under the supervision of an attorney.

After graduating from law school, Boris returned to Las Vegas and passed the Nevada Bar Exam.  After passing the bar, Boris practiced law as a sole practitioner for more than eight years in the areas of personal injury, immigration, bankruptcy, family law and civil litigation. Boris joined vegas west attorneys in 2017.

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