In Nevada all is Community Property Until Divorce
In Nevada, all income acquired during marriage is community income. NRS 123.220. In fact, “the wages of either spouse during marriage are considered to be community funds regardless of which spouse earns the greater income or which spouse supports the community.” Norwest Financial v. Lawver, 109 Nev. 242, 246, 849 P.2d 324 (1993). Further, NRS 125.150(1)(b) mandates that the court “[s]hall, to the extent practicable, make an equal disposition of the property of the parties . . . .” In this regard, “[a] community property award made to a spouse serves to divide community property acquired during marriage to which the recipient spouse is entitled as a matter of law, including community property in the form of compensation for labor and skills of a working spouse performed during marriage.” Further, in Forrest v. Forrest, 99 Nev. 602, 668 P.2d 275 (1983), the Nevada Supreme Court confirmed that community property, and therefore income, continues to accrue until a decree of divorce is entered.
Gifts, Inheritances and Premarital Property is Separate property, but Title Matters
It is well established in Nevada that gifts are the sole and separate property of the spouse receiving such. Property acquired after marriage in joint names is presumed to be community property. This presumption, however, may be rebutted with clear and convincing evidence. Forrest v. Forrest, 99 Nev. 602, 668 P.2d 275 (1983); Cord v. Cord, 98 Nev. 210 (1982). The opinion of the recipient, however, that the donor intended to make a gift “is of no weight.” Forrest v. Forrest, 99 Nev. 602 at 603.
With regards to cash, in Schmanski v. Schmanski, the Nevada Supreme Court held that “NRS 125.150 does not irrevocably transmute separate property placed into joint tenancy into community property.” Where personal property is deposited into a joint account, the gift presumption does not apply. The more appropriate question is whether the separate funds have been transmuted through commingling. It is widely held that “[t]he commingling of separate funds and community funds into one account does not transmute the entire account into a community account so long as the funds remain traceable.” The Nevada Supreme Court has recognized that the mere placement of separate funds into a community or joint account does not constitute a gift. In Malmquist v. Malmquist, 106 Nev. 231, 792 P.2d 372 (1990), the court although not addressing the issue directly, gave no importance to the allegation that a piece of property had been purchased with alleged separate property funds deposited into a joint account. Instead of analyzing whether such a deposit constituted a gift, the court defined two methods of tracing that can be used to maintain the separate nature of such contributions. Specifically, the court was asked to decide whether improvements to separate property were community or separate. The evidence showed that the husband received money from the sale of separate property in the form of a check with his and his wife’s name on it. The check was endorsed by both parties and placed into a joint checking account. At least part of the improvement was then paid from the joint account.
Nevada Alimony
Alimony is addressed by Nevada in NRS 125.150. The provisions of NRS 125.150 are intended to deal with the economic consequences of a marriage ending. The court’s ultimate goal with alimony should be to alleviate the disadvantaged spouses’ s economic loses as much as possible, considering all of the circumstances of the parties, including the benefits received by the other spouse during marriage. Marriage itself does not necessarily entitle one party to alimony, but in most marriages, one spouse makes more economic sacrifices, or suffers greater economic loss during marriage and their respective roles should be considered.
The court must award alimony as appears “‘just and equitable,’ having regard to the conditions in which the parties will be left in by the divorce.” Sprenger v. Sprenger, 110 Nev. 855, 859, 878 P.2d 284 (1994), citing NRS 125.150(1)(a). In Sprenger, the court cited seven factors that should be used in determining an alimony award in a divorce case:
(1) the wife’s career prior to marriage;
(2) the length of the marriage;
(3) the husband’s education during the marriage;
(4) the wife’s marketability;
(5) the wife’s ability to support herself;
(6) whether the wife stayed home with the children; and
(7) the wife’s award, besides child support and alimony.
There are also statutory factors to consider.
There are two types of alimony: one where a court may award in order to satisfy the demands of justice and equity and as second, which may provide necessary training or education “relating to a job, career or profession.” Unlike child support where the court must apply a formula to determine child support, courts are strictly prohibited from using a formula in determining alimony. The Nevada Supreme Court has directed family court judges to determine alimony on a case by case basis. Because judges have their own experiences and biases, alimony awards in Nevada may vary considerably depending on the specific judge.
Grandparent Custody
NRS 125C.004 states that before the court can award custody to someone other than a parent, without a parent’s consent, “it shall make a finding that an award of custody to a parent would be detrimental to the child” and that the custody order is “required to serve the best interest of the child.” Nevada case law, however, provides a number of ways this finding can be made, such as likelihood of harm, abandonment, neglect, a strong “bonded relationship” between the child and the non-parent, stability, etc. If both parents of the child are able and willing to care for the child by themselves, it is not likely that the parental presumption could be overcome.
NRS 125C.050 states that a third party may move for visitation, however, of a child if one of the child’s parents is deceased, separated from the other parent, or has relinquished parental rights, a party may seek a “reasonable right to visit the child” if and only if “a parent of the child has denied or unreasonably restricted visits with the child.” There is a rebuttable presumption that this is not in the best interest of the child. To overcome the presumption, the third party must prove “by clear and convincing evidence” that it is in the best interest of the child. Again, this is a difficult burden, but not impossible under the right circumstances.