FAQ

After filing a complaint for custody or even discussing the terms of a possible custody decree, the terms legal custody and physical custody come up almost immediately.  Many of our clients are surprised to learn that there are two types of custody that are decided in every Las Vegas child custody case.  
Legal Custody includes the ability to make major decisions regarding the child, including the child’s health, education, and religious upbringing.  Rivero v. Rivero, 216 P.3d 213, 125 Nev. 410 (Nev. 2009).  Sole legal custody would allow one parent to make these decisions, while joint legal custody requires both parents to make these decisions together through communication and compromise to act in the best interest of the child.  If one parent refuses to consult or communicate with the other parent, the Court could decide that joint legal custody is not in the best interest of the child and award the other parent with sole legal custody.
 Legal custody is not the amount of time spent with your children.  While that may have some relevance on whether you are awarded joint legal custody or sole legal custody, it is not your time share by definition.  In fact, a legal and physical custody arrangement can be completely opposite of on another.  For example, one party can be awarded joint legal custody, while the other party is awarded primary physical custody.

Nevada law has defined physical custody as the time that the child physically spends in the care of a parent.  Rivero v. Rivero, 216 P.3d 213, 125 Nev. 410 (Nev. 2009).  During this time, the child resides with the parent and that parent provides supervision for the child and makes the day-to-day decisions regarding the child.  Id.  Parents can share joint physical custody, or one parent may have primary physical custody while the other parent may have visitation rights.
Many parents are surprised when they learn, that Joint Physical Custody does not mean an exact 50/50 split of time.  Joint Physical Custody is defined as at least 40% of the time, or 146 days per year.  The Court allows some flexibility in the time share to account for the variations in a child’s schedule.  

In Nevada, there is a preference that joint physical custody be awarded.  Additionally, if there are no prior Court orders regarding custody, parents share joint custody until otherwise ordered by the Court, regardless if the parents are married or not.  NRS 125C.0015.  However, once either parent seeks Court intervention, the Court will look at several factors, including what the schedule the parents have been following.
In determining custody of a minor child, the sole consideration of the court is the best interest of the child.  Rivero v. Rivero, 216 P.3d 213, 125 Nev. 410 (Nev. 2009).  The State of Nevada, prefers that parents are awarded Joint Physical Custody regardless of sex or marital status.  NRS 125C.0025. The Nevada legislature has also provided attorneys and parents with several factors to consider when looking at the best interest of the child in NRS 125C.0035.  Some of the things that the Court will look at are:

•  The wishes of the child if the child is old enough;
• The level of conflict between the parents;
•  The mental and physical health of the parents;
• Whether the child has siblings that live with one of the parents;
• Whether one of the parents has committed domestic violence against the child or someone living with the child;
• Plus many more

Ultimately, the Court prefers that the parents determine what is best for their child and will encourage resolution.  However, if the parents can’t agree, then the Court will make the determination at trial.

This can be tricky because unlike the calculation for Child Support, there is no statutory calculation for Alimony.  The individual circumstances of each case will determine the appropriate amount and length of any alimony award.   Shydler v. Shydler, 114 Nev. 192 (1998).  Thus, it is up to the Court after taking into consideration the case law and statutory provisions.
Under NRS 125.150, some of the factors the Court will look at include:
·               The financial condition of each spouse;
·               The value of separate property of each spouse;
·               Duration of the marriage;
·               The income, earning capacity, age and health of each spouse;
·               The career before the marriage of the spouse who would receive the alimony.
There are several other factors as well, but this gives you a general idea. 

The short answer is, it depends.  We have seen Alimony awards that have been a result of a settlement between the parties that contain terms that prevent it from being modified, or include terms that it be eliminated upon a specific event such as cohabitation or marriage.
If it does not have a clause preventing modification, you might be able to modify future payments.  However, you cannot modify payments that have already been due.  In order to modify future payments, based upon a showing of changed circumstances such as financial inability to pay.  Additionally, death or remarriage of the spouse who was receiving payments would result in alimony being terminated unless the Court ordered otherwise.

While the determination of a child support obligation can be complicated, the basic principles are relatively simple. 
 
The obligation of child support is codified in NAC 425 and further governed by Nevada caselaw in Wright v. Osburn.  NAC 425 sets forth the method of calculation of child support, and essentially states that child support is calculated by taking one’s gross monthly income and multiplying it by a set percentage.  The percentages change at different income levels and based upon the number of children.  The obligation can also be deviated from based upon several factors contained in NAC 425.  Additionally, NAC 425 allows the parties to stipulate to a number as long as they aren’t on public assistance and they certify that it meets the needs of the child.  If the parties can’t come to an agreement, the Judge would have to set it based upon the calculations in NAC 425.
 
In situations where the parents enjoy joint physical custody, the method of calculation is explained by Nevada caselaw.  In Wright v. Osburn, the Nevada Supreme Court stated that where the parties have joint physical custody, you calculate the appropriate percentage of gross income for each parent;  subtract the difference between the two and require the parent with the higher income to pay the parent with the lower income that difference.  This of course, can still be adjusted where the Court finds that special circumstances exist.  Under this formula, a parent with joint physical custody may still be obligated to pay the other parent child support.   

First you will have to determine whether property is separate property, marital property, or a mixture of both.  During a divorce, a couple can decide how they want to divide their marital property.  If they can come to an agreement, they should write up their agreement and submit it to the judge for approval. Reaching an agreement is often the most cost-effective way to resolve a case and makes the divorce process easier.
If a couple can’t reach an agreement, then a judge will divide the property equally, including high-value assets, unless there is a compelling reason to make an unequal division.