1. NRS 125B.080: MODIFYING CHILD SUPPORT IN NEVADA
In Nevada, the district court has authority to modify a support order only upon the finding of a factual or legal change in circumstances since the entry of the last order. Rivero v. Rivero, 125 Nev. Adv. Op. 34, 25, 216 P.3d 213, 228 (2009). Once the district court finds a change of circumstances, the district court must then consider the best interests of the child and determine whether it is appropriate to modify the support award. Rivero at 27, 216 P.3d 229. Nevada law also requires the district court, when adjusting the child support amount, to consider the factors set forth in NRS 125B.070 and NRS 125B.080(9). Rivero at 26, 216 P.3d at 228. Those factors include:
(a) The cost of health insurance;
(b) The cost of child care;
(c) Any special educational needs of the child;
(d) The age of the child;
(e) The legal responsibility of the parents for the support of others;
(f) The value of services contributed by either parent;
(g) Any public assistance paid to support the child;
(h) Any expenses reasonably related to the mother’s pregnancy and confinement;
(i) The cost of transportation of the child to and from visitation if the custodial parent moved with the child from the jurisdiction of the court which ordered the support and the noncustodial parent remained;
(j) The amount of time the child spends with each parent;
(k) Any other necessary expenses for the benefit of the child; and
(l) The relative income of both parents.
Whether you pay child support or receive child support, if your either parents’ income has changed by more than 20% since the last court order, you may be eligible for a modification in your support obligation.
2. Child Support Cannot Be Modified Retroactively
NRS 125B.145 provides that child support may be modified only after a parent or legal guardian files a request for review to determine whether the award should be modified. The Nevada Supreme Court has been clear in stating what is necessary to change an existing child support order. It has repeatedly held that “Nevada case law clearly prohibits retroactive modifications of a support order.” See Khaldy v. Khaldy, 111 Nev. 374, 377, 892 P.2d 584 (1995); Day v. Day, 82 Nev. 317, 320-21, 417 P.2d 914 (1996). The court has consistently held that “‘[p]ayments once accrued for either alimony or support of children become vested rights and cannot thereafter be modified or voided.’” Khaldy v. Khaldy, 111 Nev. 374, 377, 892 P.2d 584 (1995). The time for retroactive modification of a support order is limited to either the date of the filing of a motion to modify the support, or the date of the hearing of the motion. Anastassatos v. Anastassatos, 112 Nev. 317, 320, 913 P.2d 652 (1996).
3. A Parent Cannot Waive Future Child Support
It is the public policy that a parent cannot waive future child support on behalf of the child. A custodial parent has only a direct interest in the support funds collected and expended on behalf of his or her child, but rather acts as trustee for the child’s benefit. Under NRS 125.510 and NRS 125B.080, a court in a divorce action has jurisdiction to award child support even though the parents have agreed none should be paid. Fernandez v. Fernandez, 126 Nev. Adv. Op. No. 3 (February 4, 2010).
4. The primary parent is presumptively entitled to the tax exemptions for the minor child.
Pursuant to section 152(e) of the Internal Revenue Code, the custodial parent is entitled to the child tax exemption if the child receives over half of his support during the calendar year from his parents who are divorced or legally separated under a decree of divorce or separate maintenance, and such child is in the custody of one or both of his parents for more than one-half of the calendar year. The “custodial parent” is defined by IRC 152(e)(3) as the parent having custody of the child for the “greater portion” of the calendar year. The statutory guidelines presume that the primary parent will take the exemption.
In Sertic v. Sertic, 111 Nev. 1192, 1197, 901 P.2d 148 (1995), the Nevada Supreme Court found that it was not an abuse of discretion for the district court to order parties to alternate the exemption when the parties share custody of the child, but the district court should have broad discretion over the matter.
Since the exemption is a form of child support, awarding the income tax exemption to the noncustodial parent constitutes a deviation from the statutory guidelines. If a district court is permitted to allocate the exemption to the non-custodial parent, it will erode the sufficiency of child support payments and defeat the primary purpose of the statutory presumptions. Therefore, absent extraordinary circumstances, the custodial parent should be awarded the federal income tax exemption.
5. When Will a Clark County Family Court Judge Order Parents to Pay for Their Child’s Private School Tuition?
NRS 125B.080 explicitly gives this court the authority to order one or both parents to pay for their children’s private school education. There is no Nevada case law that states when a court should or should not order private school tuition. The family court judges in Clark County may have drastically different approaches in deciding this issue. Ultimately, the determination should be whether the parent or parents can afford to pay the tuition and whether the private school is in the child’s best interest. In determining the best interest, the court should look at the following factors whether the child historically attended private school and whether the parents could afford the cost after divorce.
The status quo and maintaining the consistency for the children after divorce is usually in their best interest. The authority is clear that a major factor in whether to continue children in private schooling after divorce is whether they attended private school before divorce. In a Florida case the court found that private school education should be awarded where the parties had the ability to pay, the expense was consistent with the customary standard of living and the education is in the children’s best interest. In Louisiana, the court held that where both children had attended a private school their entire lives, it was in their best interest to continue.
Some judges are hostile to the idea of forcing parents to pay for a child’s school private school tuition after divorce. Where the parties can afford private school tuition and it is consistent with the parties’ lifestyle, it should be ordered.
6. Nevada Divorce Law: Child Support When Joint Physical Custody
As set forth in Wright v. Osburn, 114 Nev. 1367, 1369 (1999), where the parties equally share joint physical custody of the children, the court must 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.” After this calculation is made, “the district court also has the option to adjust the amount of the award where special circumstances exist. See NRS 125B.080(9).”