What Are Your Property Rights in a Las Vegas Divorce?
Nevada is a community property state, which means that property acquired during a marriage is the property of both spouses, unless it falls within a few narrow exceptions. If a married couple gets a divorce in Nevada, all community property must be divided between the spouses as part of the divorce proceeding. Division usually occurs through a property settlement agreement executed by the spouses and reviewed by the court. Before you agree to property division as part of a divorce, it’s essential to understand your property rights under Nevada law.
Nevada Community Property Laws
The State of Nevada has detailed statutes that govern the property rights of spouses in a marriage. When a married couple divorces in the state, those laws apply in determining the division of property between the spouses.
State law provides that all property acquired by either spouse during a marriage is community property that is owned equally by both spouses, unless:
- The spouses have a valid prenuptial agreement, postnuptial agreement, or other contract that provides to the contrary;
- A court issues a contrary ruling; or
- The property is the separate property of one of the spouses.
In most Las Vegas divorces, community property is divided equally between the spouses. There may be an unequal division of community property in certain circumstances, including where a valid prenuptial or postnuptial agreement provides for a specific division. In addition, a divorce judge may determine that an unequal division is appropriate if one of the spouses has wasted or hidden community assets.
Difference Between Community Property and Separate Property
Some divorces involve issues relating to whether specific assets or property are community (or marital) property or separate property. If an asset does not qualify as separate property, property acquired during the marriage by either spouse, as well as an increase in asset value during the marriage (such as in an individually-owned retirement account or business), is marital property subject to division in a divorce.
Separate property is property owned and solely controlled by one spouse. Generally, separate property includes assets owned by a spouse before the marriage or property acquired by one spouse during the marriage as a gift, inheritance, or award of damages for personal injury. Profits or rent received from separate property are also the separate property of the owner spouse.
Under some circumstances, separate property can become community property if the separate property is commingled (mixed) with community property, such as being deposited in a joint account or used to purchase a jointly-owned asset. If there is evidence of commingling, a non-owner spouse may claim in the divorce that separate property previously owned by the other spouse became community property and therefore is subject to equal division. If the parties cannot agree on the issue, the judge will make a determination after receiving and reviewing evidence concerning the property.
In addition to the division of community property that occurs in a divorce case, the community debts of a married couple are subject to division. Debts incurred during the marriage are considered to be community debts, subject to equal division between the spouses. As with community property, spouses can agree to a specific division of debt in the event of divorce in a valid prenuptial or postnuptial agreement.
Some debts, such as those incurred by one of the spouses prior to marriage, may be separate debt that is not subject to division. However, if there is insufficient community property to pay a community debt, a creditor may be able to seize separate property of either spouse to satisfy the debt.
Property Division in a Divorce Case
Property division in a Nevada divorce case occurs in one of two ways: The spouses may reach a property settlement agreement, which is submitted for court review and approval. If spouses cannot reach agreement, the court divides the property after gathering evidence concerning the assets owned by the spouses. In most divorce cases, spouses can reach an agreement, particularly when an experienced divorce attorney represents each spouse.
If you are considering a divorce, talking with a knowledgeable lawyer about all aspects of the divorce, including property settlement and your property rights, is strongly recommended. Before you agree to a specific means for dividing property and assets, you should make certain that you fully understand all your legal rights and obligations. If you agree to a division without being fully informed of your rights, you may end up receiving substantially less than Nevada law entitles you to receive.
Property division is not the only issue that spouses need to resolve in a Nevada divorce proceeding. Talking with a divorce lawyer ensures that you fully understand all the issues involved in getting a divorce, so you protect all your legal rights, including those that go beyond property division.
Schedule a Free Consultation With an Experienced Las Vegas Divorce Attorney
If you are considering filing for divorce in Nevada, Las Vegas family law attorney Joseph Gersten is here to help. He draws on his extensive experience in domestic matters, to protect your interests and pursue cost-effective resolution of all issues, including the division of property.
Attorney Joseph Gersten works with clients in Las Vegas, Henderson, and elsewhere in Clark County. Your initial consultation is always free-of-charge at The Gersten Law Firm. Call 702.857.8777 or complete our online form to schedule an appointment.
