What Is Legal Separation in Nevada?
In Nevada, the term legal separation refers to a statutory court process. In some circumstances, spouses who are navigating marital difficulties may benefit from pursuing a legal separation action instead of filing for divorce. While talking with a knowledgeable family law attorney is the best way to determine whether legal separation is a viable alternative for your situation, this discussion provides helpful general information about legal separation in Nevada.
Nevada Legal Separation Process
To obtain a legal separation in Nevada, spouses must go through a court proceeding established in state law as an action for permanent support and maintenance (sometimes simply referred to as an action for separate maintenance), which culminates in issuance of a court order for legal separation. There is no other way to accomplish a legal separation in Nevada.
Spouses may choose to live apart voluntarily, but maintaining separate living arrangements does not create a legal separation. In fact, even if spouses enter into a written agreement stating that they are legally separated, that agreement alone does not constitute a legal separation under Nevada law.
One or both spouses may file an action in district court for permanent support and maintenance in order to obtain a legal separation. Usually, the court grants a legal separation only if both spouses want a legal separation. If one spouse wants a legal separation and the other spouse wants a divorce, a judge is unlikely to grant a legal separation. One exception is a separate maintenance action filed by a spouse after desertion by the other spouse lasting at least 90 days.
An action for permanent support and maintenance may be filed for any of the same reasons that a spouse may file a petition for divorce, which include: 1) incompatibility (the most commonly used reason), 2) spouses have lived apart for at least one (1) year, or 3) the other spouse has been legally insane for at least two (2) years.
The judge who hears a separate maintenance action has authority to decide all the same issues that may be decided in a divorce proceeding, which include:
- Child custody
- Child support
- Visitation rights
- Spousal support / alimony
- Division of community property
The court also may order a spouse to pay temporary alimony while the separate maintenance action is pending, as well as the other spouse’s costs for the action. The applicable statute does have some specific limitations on issues that may be determined by the court in an action for separate maintenance. The law also contains other complex provisions that govern this type of court proceeding.
Advantages of a Legal Separation
A court order of divorce or annulment terminates a marriage. In legal terms, the marriage no longer exists. Both orders are permanent. In contrast, spouses who obtain a legal separation stay legally married, so they maintain certain benefits relating to their marital status.
A married couple may decide to pursue a legal separation rather than a divorce because of the importance of specific spousal and family benefits, such as:
- Keeping health benefits or other insurance
- Retaining spousal military benefits
- Filing joint tax returns
- Receiving survivor benefits from social security or the military
Another reason for a legal separation is that the spouses practice a religion that prohibits divorce. In some situations, a legal separation may give the spouses an opportunity to explore terms of reconciliation or determine with certainty that pursuing divorce is the right choice.
While retaining marital benefits is an advantage of a legal separation over divorce, a disadvantage is neither spouse is free to marry another person, since the marriage of the separated spouses continues to be legal. While the spouses may date other people during the separation, neither one is free to marry another person unless the prior marriage ends by divorce or annulment.
Depending on the circumstances, there may be other benefits to a legal separation, such as minimizing the impact on young children. Since every situation is unique, assessing whether legal separation is a viable alternative involves analyzing the specific circumstances. Getting help from a family law attorney is strongly recommended for a spouse wishing to consider legal separation.
Modification or Termination of Legal Separation Order
A court order in a legal separation action generally remains in effect indefinitely, although it may terminate for specific reasons. While the order is in effect, either spouse may request court modification or bring an action to enforce the terms of the order if the other spouse does not abide by the order.
If the spouses reconcile, the separation order usually terminates, unless the order specifically states that the order remains in effect if they reconcile and separate again. Without that provision, a new separation proceeding may be necessary if the spouses reconcile and separate a second time.
A legal separation order terminates if the spouses obtain a divorce or if either spouse passes away. In a divorce action, a legal separation court order typically is not binding on the court deciding a divorce action, unless the separate maintenance order specifically states that the terms of the order are binding on the parties in the event of a divorce.
Schedule a Free Consultation with a Las Vegas Family Law Attorney
If you want to learn more about legal separation or another domestic relations issue, Las Vegas family law attorney Joseph Gersten is here to help. He draws on his extensive experience in domestic matters, including divorce, property division, child custody and support, and alimony (spousal support), to protect your interests and pursue cost-effective resolution of all issues.
The Gersten Law Firm helps clients in Las Vegas, Henderson, and elsewhere in Clark County. Your initial consultation is always free. Call 702.857.8777 or complete our online form to schedule an appointment.
