1. IN NEVADA By Nevada Legal Services, Inc.

2. About Nevada Legal Services

3.  A non-profit organization providing free legal services to low income Nevadans  We are primarily funded through the federal government by the Legal Services Corporation  We provide statewide assistance  Offices in: ◦ Las Vegas, Reno, Elko, Carson City, Yerington  Clients must be under 200% of the federal poverty level

4.  Housing  Public Benefits ◦ Medicaid/Medicare ◦ Unemployment ◦ Food Stamps ◦ TANF ◦ Social Security Disability  Consumer Law  Immigration ◦ VAWA ◦ U Visa/T Visa  Family Law  Indian Law Project  LITC  Senior Law Project (Reno)  Pro Bono ◦ Name Change ◦ Criminal Record Sealing  Veteran’s Benefits

5. How to file for a divorce

6.  Living apart does not mean legally separated  Couple may seek legal separation (known as separate maintenance) instead of a divorce ◦ Court case will resolve custody orders, support orders, and property and debts will be divided ◦ Useful if divorce will affect religion or health insurance

7.  Are you eligible to file for divorce in Nevada? ◦ One of the people getting divorced must be a Nevada resident  Must have lived in Nevada for six weeks or more before filing  How about child support or custody? ◦ In order to receive a custody or support order the children must have lived in Nevada for six months or more ◦ You could get a divorce and then have to go to court in another state to get child support or custody decided

8.  Nevada is a “no fault” state ◦ It’s enough to simply say that you’re incompatible with your spouse ◦ If you can prove it, you can also allege  Insanity starting at least two years before the divorce is filed  Spouses have lived separate and apart or more than two years  Just go with incompatibility.  It’s easier.

9.  End the marriage  Divide up the community property ◦ And the community debt  Set up child support and custody  Award alimony

10.  Joint Petition/Uncontested Divorce ◦ Both parties agree on everything  Property, Custody, and Child Support ◦ Both parties file one action together ◦ Faster, less expensive option  Contested Divorce ◦ Parties do not agree ◦ Only one party files ◦ Takes longer ◦ Will have to go to court at least once

11.  Used when spouses BOTH want to terminate the marriage  Both parties must agree on the division of assets in the divorce  Both parties must agree on Custody/Child Support ◦ Child Support CANNOT be waived; must choose minimum  Includes what parties agree on: ◦ Division of Property/Debts ◦ Spousal Support ◦ Custody ◦ Child Support

12.  Joint Petition for Divorce ◦ Put “n/a” in questions that don’t pertain to you ◦ Must be signed  Fairly Simple Form ◦ Names and addresses ◦ Statement that you’ve lived in Nevada for six weeks or more ◦ Information about children (if applicable) ◦ Preferred custody arrangement ◦ Child support that should be paid ◦ List of community property and debt ◦ Whether alimony is agreed upon

13.  Forms needed: ◦ “Joint Petition for Divorce”  Both parties need to sign ◦ “Affidavit of Resident Witness”  This is a notarized document from someone vouching that they have known you to reside in NV for the required 6 weeks  Only one party needs to have a Resident Witness ◦ “Joint Decree of Divorce”  Similar to the Petition, this is what the Judge signs ◦ “Family Court Cover Sheet”

14.  “Plaintiff” ◦ Person filing for divorce  “Defendant” ◦ Spouse who did not file  Plaintiff files “Complaint for Divorce”  Includes what Plaintiff wants for: ◦ Division of Property/Debts ◦ Spousal Support ◦ Custody ◦ Child Support

15.  Complaint for Divorce ◦ Put “n/a” in questions that don’t pertain to you ◦ Must be signed  Fairly Simple Form ◦ Names and addresses ◦ Statement that you’ve lived in Nevada for six weeks or more ◦ Information about children (if applicable) ◦ Preferred custody arrangement ◦ Child support that should be paid ◦ List of community property and debt ◦ Whether Plaintiff wants alimony

16.  Nevada is a “community property” state  What is community property? ◦ All assets or debts ◦ Acquired during the marriage  Community property ◦ Belongs to both parties ◦ Divided fairly and equally in the divorce  What is not community property? ◦ Assets or debts incurred by one spouse before the marriage

17.  You may still want to claim all Community Property in your own name for assets or debts you are interested in keeping.  For Example: ◦ Car ◦ Mortgage ◦ Especially if you get the most use out the asset.

18.  Money paid from one spouse for the support of the other  Case by base basis  Factors to consider ◦ Ability to pay ◦ Spouse’s ability to support self ◦ Length of the marriage ◦ Work history and education ◦ Stay-at-home parent ◦ Division of other property

19.  Things to remember… ◦ Can be difficult to obtain  Need to bring information to support request ◦ Can be difficult to enforce  Can get court order to garnish wages (expensive, time consuming)  Ex-spouse may have had a change in circumstances. May no longer be working, change of workplace. ◦ It’s up to you to seek enforcement  If you obtain a Default because you cannot find spouse, you will have a difficult time enforcing alimony

20.  Process: ◦ “Complaint for Divorce” and “Summons”  This gives you a case and department number  Plaintiff fills out and files Complaint with the Court Clerk  Summons is issued by the Court Clerk ◦ Plaintiff serves other spouse with “Complaint” and “Summons”  You have 120 days to serve the Complaint and Summons  This must be done in person if at all possible  If spouse location is unknown see Service by Publication ◦ “Affidavit of Service”  Someone other than Plaintiff has to serve other spouse  This form is signed & notarized by server to confirm  File this with Court Clerk

21.  If other spouse does not “Answer” or “Counterclaim” ◦ Plaintiff files “Request for Default” ◦ Choose Summary Disposition or Prove-Up Hearing  Summary Disposition – no judge  Judge reviews and decides based solely on the filed documents.  “Summary Disposition Form”  “Affidavit of Plaintiff”  “Affidavit of Resident Witness”  Include proposed “Divorce Decree”. This MUST mirror the Complaint.  Prove-Up Hearing  Hearing before judge to clarify any possible issues.  File “Setting Slip” to set court date  “Affidavit of Resident Witness”  Include proposed “Divorce Decree”

22.  The spouse that was served with the Complaint and Summons has 20 days from the date of service to file an Answer or Counterclaim.  If other spouse does “Answer” or “Counterclaim” ◦ This usually means your spouse is opposing something you requested in your Complaint ◦ You may file a Reply to the Answer ◦ Seek legal assistance with forms

23.  If other party does “Answer” or “Counterclaim” ◦ Fill out “Financial Disclosure Form”  File and serve within 30 days of Answer/Counterclaim ◦ Fill out “Family Law Cover Sheet”  Mandatory Disclosure – Must include: ◦ 2 years W2, proof of income last 6 months, health/life insurance, expert witnesses  Mediation may be required ◦ Both parties may want it ◦ One party may request it ◦ Court may require it

24.  Whether from Joint Petition or Contested Divorce ◦ File signed “Divorce Decree” with Court Clerk ◦ Fill out and serve “Notice of Entry” and a COPY of “Divorce Decree” to spouse by mail ◦ File “Certificate of Mailing” with the Court Clerk

27. In a divorce ◦ Custody is decided as part of a divorce action ◦ Children born during marriage are presumed to be children of the husband If the parties were never married ◦ Custody is decided as a separate action, with filing a Complaint

28.  May need to establish who is the father of the child unless: ◦ Father is named on Birth Certificate ◦ Two parties were married when born  3 Ways to Establish Paternity ◦ Voluntary Acknowledgement  Both parents sign an Affidavit of Paternity in front of a notary ◦ File Complaint to Establish Paternity  Which also must establish custody and child support ◦ Ask DA to bring an action to establish Paternity  Usually court ordered DNA test

29.  Legal Custody ◦ Power to make important life decisions ◦ Education, health, religion, etc. ◦ Joint legal custody is the default  Physical Custody ◦ Where the child lives  Court considers what is in the BEST INTEREST OF THE CHILD

30. Legal CustodyPhysical Custody Preseumed SharedWhere the child resides Both parents have input1. Sole: Reside with only one parent 1. Sole: Only one parent2. Primary: Resides mostly with one parent 2. Joint: Both parents3. Joint/shared: Resides with both parents Common for both parents to share joint legal custody but one parent have primary physical custody

31.  Fill out “Complaint to Establish Paternity/Custody and UCCJEA Declaration”  When paternity is UNKNOWN  Fill out “Complaint to Confirm Custody, Visitation, and UCCJEA Declaration”  When paternity is KNOWN  Fill out “Summons”  Fill out “Family Law Cover Sheet”  File with Court Clerk

32.  If you are worried that the other party is going to call the police to attempt to remove the children from your care or leave the state with the child without your permission  Fill out and File “Preliminary Injunction”  This lets the police know there is a current legal action regarding the children and they will likely not want to get involved

33.  Serve other party (mother/father) with “Complaint”, “Summons” & “Joint Preliminary Injunction” ◦ Must be served within 120 days ◦ Requires Personal Service if residing in NV ◦ If other party cannot be located use Service by Publication  Fill out “Affidavit of Service”  Wait for other party to respond

34.  If other party does not “Answer” or “Counterclaim” ◦ Plaintiff file “Request for Default” ◦ Choose Summary Disposition or Prove-Up Hearing  Summary Disposition – no judge  “Summary Disposition Form”  “Affidavit of Plaintiff”  Include proposed “Custody Order”  Prove-Up Hearing  File “Setting Slip” to set court date  Include proposed “Custody Order”

35.  Fill out and file “Motion to Modify Custody Visitation and/or Child Support” ◦ Can do this upon substantial change in circumstances OR after 3 years ◦ Must be served to the other party by first class mail  The Motion gets you a hearing date  File “Certificate of Mailing” with Court Clerk  Other part has opportunity to oppose your request  Motions  Opposition  Reply  Wait for Decision or Signed Order from Judge

37.  Custodial Parent ◦ Has primary or sole custody  Non-custodial parent ◦ Has “visitation” rights which allow them to see the child on a pre-arranged basis  Decided based on the best interests of the children  Be as specific as possible in setting a visitation schedule ◦ Less possibility of arguments ◦ Easier to enforce ◦ Be sure to include  Who is responsible for transportation to and from visits  Meeting place for parents to pick-up and drop off the child

38.  Be as specific as possible to avoid any problems or confusion.  Supervised Visitation ◦ Specific Location ◦ Specific Time ◦ Who qualifies as supervisor  Holiday Visitation Schedule ◦ How are you splitting holidays? ◦ Create a calendar and submit it to the judge for approval ◦ When does the “holiday” begin or end ◦ Who is responsible for transportation?  Enforcement of Visitation ◦ You are responsible for enforcement, although you may ask the police for help enforcing an order

40.  Through a divorce or legal separation settlement  Ordered as Part of a Paternity/Custody Action  Obtained by a lawsuit brought by the Clark County DA ◦ Usually where a parent applies for public benefits  Ordered as part of an extended TPO ◦ Temporary Protection Order

41.  There’s a formula! ◦ NRS 125B.070 ◦ Based on gross income  i.e. before any other deductions  Parent without primary custody pays: ◦ 18% of gross income for 1 child ◦ 25% of gross income for 2 children ◦ 29% of gross income for 3 children ◦ 31% of gross income for 4 children ◦ 2% for each additional child  Minimum $100.00 per child

42.  Neither party can waive child support  Enforcement of a child support award is up to the person receiving the money ◦ If both parties agree that no child support is needed, must elect the minimum amount but do not have to collect ◦ Keep records of all child support exchanges of money and agreements ◦ If paying party does not make the regular payment, it is up to you to make the effort to collect or notify department of nonpayment.

43.  Joint physical custody ◦ Parent with higher income ◦ Pays the percentage (18%-31%) ◦ Of the difference in incomes  Not the gross income  Child support doesn’t always follow the formula ◦ But a change requires special findings about the needs of the children or burdens on the parents

46. Parent 1Parent 2 GMI$3,000$1,000 1 Child (18% of GMI) $540$180 Parent 1 $540 Parent 2 -$180 Difference: $360 Paid by Parent 1  Joint Physical Custody ◦ Parent with the highest Gross Monthly Income (GMI) pays the difference to other parent

47.  Must be reviewed every three years at the request of either parent  Change in circumstances ◦ A major one, such as a big dip in income  When the parties agree ◦ But a judge reject this agreement if its not in the best interests of the child

48.  File “Motion for Order to Show Cause” ◦ This sets a court date for parent to show up and explain why they are not paying ◦ Be sure to include with the Motion a list of:  Every missed payment  Amount owed for every missing payment  Wage Assignment Notice ◦ Letter and copy of support order to employer

49.  File Motion to issue “wage attachment” ◦ Allows court to garnish wages  Money sent directly from employer to other parent  Can also ask court to  Attach other income  Attach tax returns  Put a lien on property

50.  Need help?  Nye County District Attorney Family Support Division ◦ May be able to assist with filing for child support ◦ May file on your behalf if you are getting public benefits ◦ Call (775) 482-8117

51.  Motion to Relocate ◦ If party with custody wants to move ◦ Can only do so with:  Permission from the other party; or  Order from the judge ◦ Best interests of the child  Good faith reason to move  How move will affect child and parent  Whether parent with custody will follow visitation arrangement  Whether the other parent’s objection is in good faith  How likely it will be that non-moving parent can have regular visitation

52. What is it and how is it done?

53.  When the Plaintiff files a “Complaint” for Divorce, Custody, etc… the other party must be Served ◦ Service gives the other party legal notice that they are now involved in a court case  Any party who is being sued is entitled to advance notice of the suit  The other party must receive a copy of the “Complaint” and “Summons” ◦ If a party does not receive this notice, the court will DISMISS the case

54.  Served by Someone NOT a part of case  Must be 18 years or older  Professional Process Servers  Must HAND the “Complaint” and “Summons” to the other spouse  The person serving has to sign “Affidavit of Service” indicating time and date of service, how they served the person, and how they confirmed identity  You must then file this “Affidavit of Service” with the Court to prove you have properly noticed the other party

55.  Sometimes the other party may not contest the legal action but does not want to help during the process  This party may be willing to acknowledge that the Plaintiff himself/herself delivered a copy of the “Complaint” and “Summons” (can include by regular mail)  This other party will have to fill out an “Affidavit of Acceptance” however and then either party can file that with the Court Clerk

56.  Must attempt to locate the person with Due Diligence ◦ Call/write to last known addresses and phone numbers ◦ Contact affiliates, including family members ◦ DMV record search  Keep notes of who was called and when – the judge will want to see this ◦ The more steps you take, the better for your position

57.  Fill out “Affidavit of Due Diligence” ◦ Include records of attempted contact  Fill out “Affidavit of Plaintiff Requesting Publication”  File both Affidavits with Court Clerk  Judge then gives Order to allow service by publication  Run “Summons” in paper for 4 weeks (this is the “Publication” part)  Newspaper will then file with Court Clerk an “Affidavit of Publication” after 4 weeks is over

58. How to file for guardianship of a minor child(ren)

59.  Sometimes you have a situation where a child is in the physical care of someone who is not the child’s parent(s)  The adult caring for the child will often need to establish legal custody of the child to get the child medical or educational care  Legal Guardianship establishes custody over a child where the person caring for the child is not the child’s parent.

60.  Filing for Guardianship? ◦ The child(ren) must physically reside in Nevada and be within the petitioning person’s physical care  Two people may file for guardianship as “Co- Guardians” if desired  Temporary Guardianship can be filed instead if the child’s parents consent in writing to a short-term guardianship, usually for no more than six months

61.  To file for Guardianship, you must file a Petition ◦ The Petition includes things such as where the child resides, why the parents are unable to care for the child and why the guardianship is being requested. ◦ The child is referred to as a “Ward”. ◦ A private guardianship does not involve an open child abuse case. ◦ A minor child aged 14 or older must sign a “Consent to the Guardianship”, to be filed with the Court.

62.  Have a “Citation To Appear And Show Cause” Issued by the Court Clerk ◦ Make sure you ask for a hearing date at least two months out so that you have sufficient time to serve all necessary parties  File the Confidential Information Sheet ◦ This includes personal documents regarding the proposed guardian, ward, and parents, including Birth Certificates, Social Security Cards, and Driver Licenses ◦ If a parent is deceased, the Death Certificate must be filed with the Confidential Information Sheet  Mail Out the “Citation” and “Petition” to all Relatives – grandparents, adult siblings, aunts and uncles, parents – at least 3 weeks before the hearing

63.  File an Affidavit of Mailing ◦ This document lists the names and addresses of all the relatives who were mailed the “Citation” and “Petition” ◦ The Relatives do not need to respond or come to the hearing unless they oppose your Petition to be appointed Guardian  Personally Serve The Parents The Citation and Petition at least 10 days before the hearing ◦ Both Parents need to be served by someone other than the Guardian (Constable, Friend, Process Server) ◦ Parents can sign notarized Consent instead ◦ If a family member or friend serves the parent, this person will need to file an “Affidavit of Service” with the Court

64.  Service By Publication ◦ If the parent is unknown or cannot be located, you can request that the Court give Service By Publication  An unknown father can be noticed as “John Doe” ◦ You must first establish that you truly cannot locate the parent by due diligence ◦ Make sure you set the Guardianship Hearing out several months in advance if you plan to serve a parent by publication because the publication must run for 4 straight weeks

65.  The Hearing Date Is Listed In The Citation To Appear And Show Cause ◦ Only the proposed Guardian(s) and Ward(s) are required to attend the hearing ◦ Any one notified about the guardianship who wishes to oppose it should attend the hearing. ◦ If no one opposes the guardianship, the hearing will be brief and the judge will ask a few questions to make sure all is in order.

66.  After the hearing, the Judge will sign an “Order Appointing Guardianship”  Be sure to File This Order in the Court  File a “Notice of Entry of Order” and “Certificate of Mailing” with the Court ◦ Mail out copies of the Order and Notice of Entry to all the relatives originally notified about the Petition ◦ Parents can be mailed copies as well  What are Letters of Guardianship? ◦ These are Certified Letters issued by the Court Clerk that establish you as the Legal Guardian, to be provided when needed to the child’s medical, educational and other providers  Remember to file Annual Reporting Forms with the Court every anniversary

67.  Grants the Guardian legal and physical custody over the minor child  This means the Guardian can now refuse visitation by the parent of the child  Guardian can collect child support and/or public benefits for the child  Guardian acts as de facto parent until child becomes an adult or the Guardianship Order is set aside ◦ A Guardianship DOES NOT terminate the parental rights of the child’s parents ◦ If a parent can establish his/her ability to properly care for the child, the parent can request that the guardianship be terminated and the child be returned to parent  This must be done through the legal court process, however

68. Nevada Legal Services 530 S. 6 th St., Las Vegas, Nevada Phone: (702) 386-0404 Fax: (702) 688-1641 www.nlslaw.net