When spouses consider a divorce, division of the couple’s property and assets often is one of the most difficult issues to resolve. In Nevada, many people assume that property will be divided equally, with each spouse receiving half. That assumption is an oversimplification of the state laws that that governs the property division in a Nevada divorce. The statutes — and the application of them by a judge in a divorce proceeding — are more complicated than simply dictating a 50-50 split.
Nevada is one of a handful of community property states. Under state law, most property owned by spouses in a marriage falls into two categories: community property and separate property.
Nevada law (NRS 123.130) defines separate property as property that is:
The proceeds (rents, interest, and profits) of separate property also are a spouse’s separate property.
A different section of the law (N.R.S. 123.220) defines community property as any property acquired after the marriage by either spouse or both spouses that does not qualify as separate property, unless:
The distinction between community property and separate property is extremely important. Generally, only community property is subject to division between the spouses in a divorce proceeding. Separate property becomes a factor only in specific situations.
To complicate matters even more, it is possible for property to be owned in a manner that is not clearly community or separate property, such as a joint tenancy. The law specifically addresses division of those types of property. In addition, special rules may apply to property acquired by spouses during residency in another state.
If the court determines property division in a divorce, Nevada law (N.R.S. 125.150) provides that the court must make an “equal disposition” of the community property of the spouses “to the extent practicable.” However, the statute goes on to state the exception that:[T]he court may make an unequal disposition of the community property in such proportions as it deems just if the court finds a compelling reason to do so and sets forth in writing the reasons for making the unequal disposition. [Emphasis added.]
Examples of circumstances that likely would constitute a “compelling reason” include financial misconduct like wasting or hiding property or diverting community assets.
The court also has authority to set apart a portion or all of the separate property of either spouse for the support of the other spouse or the couple’s children, if the judge determines that doing so is “just and equitable.”
In other words, property division is not always 50-50. Unequal division of community property and allocation of a spouse’s separate property are possible in some circumstances.
Generally, property owned in joint tenancy is treated the same as community property, except that if a spouse contributed separate property to acquisition or improvement of the property, the court may provide for reimbursement to the spouse for the separate contribution.
Division of property in a divorce is an issue completely separate from a determination about payment of alimony. Different statutory provisions apply to court decisions relating to alimony.
Spouses planning to divorce can — and often do — avoid the uncertain outcome of having the court divide property by entering into an agreement that provides for the allocation of assets and debts after the divorce. The judge in the divorce proceeding typically makes a written property settlement agreement part of the divorce degree, as long as the agreement is reasonable.
Reaching agreement is preferable to asking the judge to divide property in many cases. However, there are situations where an agreement simply is not possible. In that case, the judge will decide property division issues according to the provisions of Nevada law.
In most cases, representation by legal counsel is essential in a divorce proceeding that presents issues relating to the division of property. One important reason is that classifying specific property as community property or separate property is not always a simple task. Your lawyer helps identify the character of all assets that you and your spouse own, as the first step in determining a fair division of the property.
Being represented by an experienced divorce and property division attorney greatly improves your chances of negotiating a mutual agreeable property settlement, which avoids the emotional stress, time, and cost of going through a court proceeding for property division. However, if you do not get a fair settlement offer from your spouse, and an agreement is not possible, your attorney will be prepared to go to court and fight for a property division that is fair to you.
Without legal representation in a divorce proceeding, you risk losing critical rights and not receiving property that you are entitled to under the law. It is a significant mistake to represent yourself in a divorce proceeding or to sign any agreement provided by your spouse’s attorney without having the agreement reviewed by your own lawyer.
Respected family law attorney Joseph Gersten assists clients with property settlement and asset division issues and all other concerns that arise in Clark County divorce cases. Attorney Gersten’s investigative background and trial experience are especially important in gathering evidence, negotiating with opposing counsel, and presenting information to the court, which can make all the difference in how the judge decides the issues in a divorce case.
At The Gersten Law Firm, your initial consultation is always free-of-charge. We assist clients in Las Vegas, Henderson, and throughout Clark County with all types of family and domestic matters. Call 702.857.8777 or complete our online form to schedule an appointment.