Divorce and Annulment
Requirements for Filing for Divorce in Nevada
One or both parties must be living in Nevada and have been in Nevada for at least 6 weeks prior to filing the divorce action.
If the parties have any children under 18, the court can only issue a custody order if the child(ren) have lived in Nevada for 6 months before the action is filed.
Nevada is a “no fault divorce” state. This means that there does not need to be cruelty, cheating, or any other bad behavior from one spouse. In Nevada, there are only three reasons a person can legally request a divorce and those are:
- Insanity of one spouse lasting at least 2 years before the divorce was filed (the insanity should be documented and diagnosed by a professional);
- The parties have lived separate and apart for at least one year without moving back in together; OR
- Incompatibility is the most commonly used grounds for divorce. Incompatibility simple means that the parties are no longer a good match.
Mandatory Parenting Classes (Clark County only)
If the parties have children under 18 and are filing in Clark County, the parties MUST both complete a 3 ½ hour parenting class within 45 of the defendant receiving the complaint or petition. (This class is only required in Clark County.) If your county requires the class:
The parties may attend the class separately and may take the class online.
The Decree of Divorce will NOT be granted until both parties have filed a Certificate of Completion for the course.
The course is offered by Palo Verde Child and Family Services (243-4357) or Family Solutions (395-8417) for $40 per parent. There are also online providers of the course.
Fee waivers for the class can be obtained through the court.
The course is available in Spanish.
The parties may request waiver of program attendance but they must have a good reason for it. Waiver is rarely granted.
If one party has not responded to the divorce and is refusing to take the class, the court may still allow the other spouse to proceed as long as the cooperating spouse has attended the class.
Procedure for Filing a Joint Petition
Complete a Joint Petition for Divorce packet (found at your local court or at Supreme Court), which will need to be signed by both parties.
Both parties must agree on ALL issues:
- The grounds for divorce (most common being incompatibility.)
- If the parties have a child(ren), the parties’ agreement as to child support, child custody (both legal and physical custody), visitation, holiday schedule and who will provide medical insurance. You may wish to set the times and locations for custody exchanges in the order.
- Designate which party will claim the child(ren) on income taxes. One party can receive the deduction(s) , the parties can alternate which party claims the tax deduction or if the parties have more than one child, the parties may split the deductions until one of the children turns 18, at which time the parties alternate who takes the remaining deduction.
- How the parties have agreed to divide their community property and community debts.
- The parties’ agreement as to spousal support/alimony.
Have a third party who knows one of the spouses complete and sign, before a notary, the Affidavit of Resident Witness.
File the petition packet with the Family Court in your county. The packet should include a Coversheet, the Joint Petition for Divorce, the Affidavit of Resident Witness, and if the parties have children, a Child Welfare Identification Sheet.
- If the parties are filing in Clark County and have minor children, do not forget to attend the required COPE parenting class and file your certificates of completion with your petition. Residents of other counties do NOT need to attend the class.
- There is a filing fee, which varies by county, but if you have low income, you can apply for a fee waiver.
Submit a copy of all filed documents AND the original Decree of Divorce to the judge assigned to your case.
- Decree of Divorce should include the parties’ agreements as to child support, custody, visitation, property/debt distribution, alimony, and whether the wife will have her maiden name restored.
- The Decree of Divorce will NOT be filed until the judge signs it.
- Once the Decree of Divorce is signed, file the Decree with the clerk’s office at your local court.
Procedure for Filing a Contested Divorce
Obtain a Complaint for Divorce self-help packet from your local court or from the Nevada Supreme Court.
In addition to the Complaint, the person filing the divorce (the plaintiff) will need to complete a Financial Disclosure Form. This form MUST be filed and “served” to the other party (the defendant) within 45 days of when the defendant is served with the summons and complaint.
Terms of the Complaint
The plaintiff will include in the Complaint the terms that he or she wants in the divorce.
The plaintiff should be as specific as possible with his or her desired divorce terms.
If the parties have children, designate both legal and physical custody as well as how much child support should be ordered and which party should pay. For additional information on custody and child support, refer to the Custody, Paternity, Child Support page.
If seeking alimony, specifically outline the reasons for alimony.
When dividing property and debts, include only the last 4 digits of account numbers.
- Include all property of monetary value that was acquired during the marriage (real estate, vehicles, boats/RVs, jewelry, electronics, furniture, etc.) even if that property is titled in only one party’s name.
- May also include pets or other items in dispute that are not of high monetary value.
- Include all debts acquired during the marriage.
- Note that the court may include debts in the decree of divorce but lenders are NOT bound by such orders. Unless the debt is refinanced in only one party’s name, the lender can still try to collect that debt from both parties even if the debt was “awarded” to only one party in the divorce.
- One spouse may request that the court order that, within a set period of time, the other spouse attempt to refinance a debt in his or her name alone. However, a lender is not bound to grant the refinancing and can refuse to remove the requesting spouse’s name from the account.
- If there are no debts and no property to divide, say so in the complaint.
When crafting a child custody/visitation schedule, include a holiday schedule and designate who will transport the child, where exchanges will occur, and the time of exchanges.
- Holidays often included are: New Year’s, Easter, Memorial Day, 4th of July, Halloween, Thanksgiving, Christmas Eve, Christmas, Mother and Father’s Days, and birthdays.
- Can include any time off from school such as Martin Luther King Day, President’s Day, Veteran’s Day, Labor Day, and Staff Development Days.
- If child(ren) are of school age and the parties do not live within the same school zoning area, the Plaintiff may wish to include which school the child(ren) will attend.
- If child(ren) are of school age, a schedule for winter break, spring break, and summer vacation should be included unless the parties intend to maintain the same schedule year round.
- If the parties have minor child(ren), don’t forget to designate which party will be entitled to claim the tax deduction(s) for the child(ren.)
Have a third party who knows the client complete an Affidavit of Resident Witness stating that you have lived in Nevada for more than six weeks..
File the Coversheet, the Complaint, the Financial Disclosure, the Summons, the COPE Certificate of Attendance (if the parties have children and live in Clark County) and the Affidavit of Resident Witness with the court in your county.
A Joint Preliminary Injunction can be filed if there are concerns that the other party will sell or dispose of community property, harassing or stalk the other party, or take the parties child(ren) from the state. A Joint Preliminary Injunction becomes effective against the other party after it has been served and lasts until final judgment or Decree of Divorce is entered.
Serving Your Spouse
The defendant will need to be “served” with a copy of the Complaint, the Financial Disclosure, and the Summons within 120 days after the Summons is issued.
To complete service, the defendant will need to personally receive copies of the paperwork. The plaintiff cannot serve the defendant but can have anyone over 18 serve the documents including a friend, a family member, or a paid process server.
An Affidavit of Service must be filled out by the person who did the service and then filed with the court.
If the defendant lives out of state, file a Motion and supporting Affidavit for Out of State Service before having the defendant personally served in his or her state.
If the defendant cannot be found in Nevada after trying multiple ways to find him or her, the plaintiff can ask the court for permission to serve by publication.
To request publication, fill out an Affidavit for Service by Publication describing where and when the defendant last lived. Also complete an Affidavit of Due Diligence describing the ways you tried to fins the defendant. Submitted these papers to the judge assigned to your case along with a filled out Order for Service by Publication.
If the request is granted, you can submit the order to your local newspaper to have the publication run.
If Your Spouse Fails to Answer within 20 Days of Service
The plaintiff may (and should) submit a Request for Default to the Clerk’s Office and complete a Default.
Until the plaintiff actually receives the Default from the Clerk, the defendant may still file an Answer, even if the 20 days post-service period has elapsed.
Once the plaintiff obtains a Default from the Clerk, the plaintiff may either
- Submit the Default and a proposed Divorce Decree to the judge OR
- Schedule a prove up hearing through the court’s clerk’s office, at which the plaintiff should bring a proposed Divorce Decree for the judge to sign.
NOTE: Defaults are disfavored! Defaults may be set aside within 6 months of entry if the defendant can show good cause.
If Your Spouse Answers and Agrees to Your Terms
The parties may schedule a prove-up hearing (a hearing before the judge where there judge will ask if the information in the Complaint is correct) or request summary disposition (the judge will decide the case without an in-person hearing).
To obtain a prove up hearing, the plaintiff can schedule the hearing through the clerk’s office at their local court.
The plaintiff will need to bring a resident witness or file an Affidavit of Resident Witness.
The plaintiff should have the proposed Decree of Divorce at the hearing and if all is in order, the judge will sign the decree at the end of the hearing.
The Decree must be filed at the clerk’s office
Prepare and file a Notice of Entry of Order and mail the Notice and the Divorce Decree to the other party
File a Certificate of Mailing reflecting service of the Decree to the other party
To request summary disposition
The plaintiff must file a Request for Summary Disposition of Uncontested Divorce
The plaintiff should submit the Request for Summary Disposition along with the Complaint, the Answer, the Affidavit of Resident Witness, copies of the parties’ agreements on child support, custody, property division, etc, and the proposed Decree of Divorce to the judge assigned to the case.
Once the judge signs the Decree, it must be filed at the clerk’s office.
Prepare and file a Notice of Entry of Order and mail the Notice and the Divorce Decree to the other party.
File a Certificate of Mailing reflecting service of the Decree to the other party.
If Your Spouse Answers and Counterclaims
If the defendant files an Answer and Counterclaim, indicating that he or she does not agree with the Complaint, the plaintiff will have 20 days after he or she is served with the Counterclaim to file a Reply.
The plaintiff must file a Notice of Early Case Conference and conduct the case conference within 30 after the defendant has filed his or her Answer.
Following the Conference, the parties must prepare and file a Joint Case Conference Report explaining what happened at the meeting.
A blank fill in form can be obtained through the Self-Help Center.
If the parties cannot agree on the content of the Report, each must prepare and file their own Individual Case Conference Report
Once the Joint Case Conference Report is filed, the court will set a trial date.
Mediation
If the parties have minor children, they may be required to attend mediation. Refer to the court in your county to determine if mediation is mandatory in your jurisdiction.
Mediation can be a useful way to settle a dispute and enables the parties to make their own custody decision rather than allowing the judge to make the decision for them.
The parties can initiate the mediation by either signing a stipulation or by one party submitting a request for mediation.
Parties can select a private mediator or check with their local court to see if the court has a mediation program.
If the parties reach a settlement during mediation, the mediator will help draw up a settlement agreement, which should be submitted to the judge for signature.
In counties that require mediation, an exemption from mediation may be sought when there are issues of child abuse, domestic violence, or if one party is out of state.
Mediation is confidential and the judge will only be told whether the matter settled but not any details of the mediation.
Pre-Trial Hearings
Child custody and child support are usually decided at the pre-trial stage of the case.
All contested issues involving minor children should be submitted to the judge prior to the setting of a trial date.
If child related issues are not settled in mediation, the mediator will usually issue a recommendation to the court and the judge may order an evidentiary hearing on those issues.
Alternatively, a request that the judge consider these types of issues should be made by filing a motion.
After a hearing, the judge will sign an order setting out what the ruling to be included in the decree of divorce.
Prior to the trial, each party should file and serve the opposing party with a Pre-Trial Memorandum. A fill in Pre Trial Memorandum can be obtained from the Self-Help Center.
Post Trial
Following trial, the judge will make a ruling and one party will be designated to prepare the Decree of Divorce.
Once the Decree of Divorce is signed by the judge it must be filed and the other party will need to be served with a file stamped copy of the Notice of Entry of Order and the Decree.
A certificate of mailing will need to be filed once the mailing is complete.
If You Have Been Served With Divorce Papers
If you are the defendant, your Answer MUST be filed within 20 days of service to prevent the court from issuing a Default.
To answer a divorce complaint, the defendant may:
- File an Answer agreeing to the terms set forth in the Complaint. If the defendant agrees to all terms in the Complaint and he or she files an uncontested Answer, the parties will need to attend a prove up hearing or they may request a summary disposition to finalize the divorce.
- File an Answer and Counterclaim denying some or all of the terms set forth in the Complaint and presenting his or her alternate terms; OR
- Default by not filing an Answer but the plaintiff will receive all he or she requested.
Please note that there are filing fees for filing an Answer, which vary by county. If you are low-income, you may can apply for a fee waiver through the court.
Property After Divorce
Community Property
Nevada is a community property state which means that most property acquired during the marriage AND while the parties lived in Nevada or another community property state belongs to both parties.
Property and debts acquired while the parties were married are community property except:
- Property inherited in one party’s name.
- Funds acquired by one of the parties through a personal injury award or settlement.
Both spouses might have an interest in real property acquired by one party before the marriage if payments were made on the real property during the marriage.
Separate Property Becoming Community Property
Separate property may “transmute” to become community property if:
- The property becomes so commingled with marital property that it becomes untraceable;
- The title has the names of both parties; OR
- The parties use the property to support the marriage or in some other way to show that the parties intent to make it marital property.
When one party owes a business, that business MIGHT be subject to partial division. If there is a business to divide in the divorce, an attorney should be consulted to determine how much, if any, of the business each spouse is entitled to.
Property Acquired in Another State
Nevada does NOT have a “quasi-community property statute” to deal with property acquired in another state.
Nevada follows the “pure borrowed law” approach which means that when there is property that the couple obtained while they were living in a non-community property state, the court will divide those assets according to the law of the state where those assets were obtained.
When dealing with retirement benefits, however, courts will often apply only Nevada law and ignore the pure borrowed approach.
Mortgage
When the parties have a mortgage together, it should be addressed in the divorce but note that mortgage companies are NOT bound by the divorce decree.
The divorce decree should reflect which party is awarded the marital residence and, if applicable, the mortgage on the property.
Simply ordering one spouse to assume responsibility for a mortgage does not necessarily mean that the other party has no financial responsibility. The only way to remove one spouse from a mortgage is for the other spouse to assume the loan or to refinance the loan in his or her name alone. The court does not have the authority to force the mortgage company to refinance or grant a loan assumption and mortgage companies often refuse to release one spouse if the other lacks sufficient income or credit to qualify. However, having the divorce decree reflect that one party is awarded the home and the obligation for the debt may be necessary if the other spouse wishes to purchase a home later on.
**Transferring the property deed to the one spouse will NOT release the other spouse’s financial obligation to the mortgage-it will only take away that party’s ownership interest in the home!!**
Retirement Benefits (401k, Pensions)
If one or both spouses has retirement benefits such as a 401k, a pension plan, etc and ANY contributions to the plan were made during the marriage, the benefits are considered community property to the degree at which they were accrued during the marriage. (Division of retirement benefits is VERY complicated.)
***If you or your spouse has retirement benefits and you would like to divide those benefits in the divorce, it is best to speak with an attorney. The following information should NOT take the place of consulting with an attorney qualified in family law.***
Retirement benefits are usually the most valuable (and sometimes the only) asset of the marriage.
Some retirement benefits must be divided in the initial divorce decree or the nonemployee spouse will forever lose his or her claim to a share of the benefits.
Retirement benefits do not have to be divided if the parties so wish and because division of retirement benefits can be costly and complicated, they may be used as a bargaining chip in the divorce. The employee spouse may consider giving the other spouse additional property or alimony payments in lieu of dividing retirement benefits, which sometimes is an easier and more economical alternative for both parties.
If there is a retirement benefit that is subject to division, a special order called a QDRO (qualified domestic relations order) will be needed. A QDRO creates or recognizes the right of the spouse, called an alternative payee, to receive part of the pension OR assigns an alternate payee to receive all or a portion of the benefits.
- Determining the amount subject to community property rules can get very complicated, and usually involves determining what percentage of the plan was paid in during the marriage.
- QDROs can also be used to recover child support and alimony payments.
- Expert assistance should be obtained in preparing a QDRO and the cost for preparation can be split between the parties.
- Pension plan administrators will require a QDRO and plans have varying requirements.
- Who pays for the QDRO will have to be determined in advance.
A spouse may have their share of the pension benefit paid much later after the divorce, when the other spouse retires and begins to draw on the pension benefit.
Alimony or Spousal Support
Eligibility
You can request alimony or spousal support in a divorce proceeding.
Alimony is usually only awarded when there is a difference between the parties’ incomes and when one spouse gave up career opportunities for the good of the marriage. The court will consider the following factors in determining alimony:
- The receiving spouse’s career prior to the marriage;
- Length of the marriage;
- The receiving spouse’s education during the marriage;
- The receiving spouse’s marketability to potential employers;
- The receiving spouse’s ability to support him or herself;
- Whether the receiving spouse gave up career options to stay at home with children;
- The receiving spouse’s property award; and
- The disparity of earnings between the parties currently and the potential future earning disparity.
Types of Alimony
The court can award alimony in a variety of ways.
- “Rehabilitative alimony” gives one party alimony payments for a short amount of time so that party can obtain an education or acquire job skills.
- “Lump sum alimony” is a sum of money awarded as part of the property settlement rather than in monthly payments.
- “Periodic alimony” are payments for an established amount of time.
- “Permanent alimony” continues indefinitely, until one of the parties dies or until the receiving spouse remarries. Permanent alimony is rarely awarded.
Alimony IS taxable income.
Modification
Either party can seek to modify an alimony award after it is made.
Only future support payments can be modified, not past support.
An alimony award may be decreased or ended if the paying spouse can show that the financial situation of either party changed. Examples of such changes are that the paying spouse cannot afford the order or the receiving spouse is living with another person.
Periodic support can be changed and the ending date extended if the modification happens before spousal support ends.
Alimony ordinarily ends when the receiving party remarries or starts to live with a romantic partner.
Annulment
What is an annulment?
It is a finding by the court that your marriage was void or voidable. Unlike divorces, Nevada will always have jurisdiction to annul marriages that occurred here.
Void Marriage:
The marriage is void, meaning it is no longer valid without any decree of divorce or annulment or other legal proceedings, if:
- Consanguinity between the parties (close blood relation)
- Either of the parties having a former husband or wife then living (bigamy)
Voidable Marriage:
A court order is necessary to void a marriage on the following grounds:
- Lack of consent for a minor’s marriage, unless he/she continues to live with spouse after 18th birthday
- Lack of understanding (an insane person/intoxicated, etc.), unless the insane party becomes sane and continues to live with spouse.
- Fraud, unless the parties continue to live together after fraud was discovered
What should I do if I think my marriage is void or voidable?
It is a good idea to seek the annulment even if the statute states that you do not have to (such as the marriage was void). You may file for the annulment even if you have children together (likely to happen in case of bigamy where the first marriage’s divorce was not finalized when the second marriage was entered into). You may also plead for a divorce, in the alternative, if the court finds that your marriage was valid.
Besides an order that my marriage no longer exists, what else can the court address in an annulment case?
The court can issue orders regarding community property and community debt division, spousal support, child custody, visitation, and child support. The Court can address all issues that could/would have arisen out of the divorce case, but the only difference is at the end of the case, the marriage is annulled (treated as if it had never happened), not dissolved.
NOTE: The information contained on this page is for general background information only. If you have a legal question, it is best to consult with an attorney.
