Part of Real World Divorce: web edition | Kindle edition
Our questions regarding Nevada law and customs were answered in a November 2013 interview by Jim Jimmerson, a Columbia Law School graduate who has been practicing since 1976. Jimmerson is renowned in Las Vegas for his family law practice, but also handles a wide variety of other types of matters. One of the most famous matters that Jimmerson has handled is Mike Tyson's bid to regain his boxing license. Jimmerson has won all of the usual awards and honors for one of our nation's top divorce litigators, but his client list speaks for itself. People who could hire any attorney on the planet have hired Jimmerson to handle their divorces, including Steve Wynn, Wayne Newton, David Copperfield, Pia Zadora, the Tom Cruise family, etc. See http://jimmersonhansen.com/ for additional biographical information.
Jimmerson represents a 60/40 mixture of male and female clients, though more than 70 percent of cases in which he is involved were started by a female plaintiff. He has brought roughly 500 cases to trial.
Note that Nevada revised its custody laws in 2015, two years after our interview. Joining Alaska, Arizona, and Delaware, the state now favors 50/50 shared parenting via a statute or regulation (a handful of other states, such as Colorado and Pennsylvania favor 50/50 shared parenting by custom). The devil, from the point of view of a hopeful plaintiff, is in NRS 125C.0035:
Preference must not be given to either parent for the sole reason that the parent is the mother or the father of the child.
The court shall award physical custody in the following order of preference unless in a particular case the best interest of the child requires otherwise:
With a stroke of the legislative pen, Nevada courts got out of the business of regularly picking a winner and a loser parent. A Reno-based attorney whom we interviewed said that her female plaintiff clients were "hopping mad" about the change. She explained that even the domestic violence angle no longer works: "Judges insist on seeing a criminal conviction for domestic violence; you can't get primary custody on the basis of an allegation."
Nevada child support laws and guidelines provide only small incentives for middle-class and upper middle-class families to litigate over custody. Child support is determined by formula in NRS 125B.070 and 125B.080. For lower income families where children might face a genuine need, the amounts are similar to those in other states, e.g., 18 percent of a payor's gross income for a single child, 25 percent for two children. However, the amounts are capped at $1,092 per month ($13,104 per year) per child (adjusted for inflation every year; this is the July 1, 2016 number). This is more than the maximum child support revenue obtainable in Denmark or Germany. It is more than Professor Comanor's calculation of actual spending by U.S. parents on a child. It is more than USDA-estimated spending by a middle class family. It is more than the maximum compensation that a foster parent can receive from the State of Nevada, i.e., $9,125 per year. However, $13,104 per year is much less than potential cash value of a child in some U.S. jurisdictions, e.g., California or Massachusetts, leading a Reno-based attorney to advise "If you had sex at Burning Man, file your child support lawsuit when you're back in California."
Child-related cashflows can be higher in Nevada. In special circumstances judges do have discretion to award child support in larger amounts, to require a parent to pay for health insurance or day care. Also, judges will enforce agreements between parents to pay at higher rates. Jimmerson said "I'm working on a case right now where the parents agreed on a support figure of $50,000 per month per child. I expect the courts would enforce that, though they would not enforce an agreement to pay a lower amount than the guidelines."
Child support in Nevada stops at age 18 unless a child is still in high school, but in any case by age 19 unless a child is disabled. As in neighboring California, courts cannot order a parent to pay for college.
Shared physical custody can result in a reduction in child support payments and also makes it very difficult for a parent to win a removal action (see below). The definition of "shared" is that a child spends at least 40 percent of her nights with a parent (146 nights per year). "When a child is spending 4 nights per week with one parent, that's shared custody. At 5 nights per week, that's primary or sole custody. In virtually every case the war is over that 5th overnight." The child's preference will typically be taken into account starting at age 12, but there is no case law or statute that fixes a particular age.
Jimmerson charges $550 per hour. "The most expensive family law attorneys in Nevada are at $600 per hour and I like to be just under that." Unlike some other attorneys whom we interviewed, Jimmerson provided at least a plausible estimate of what it might cost to hire him through a divorce and custody trial: $150,000 to $200,000.
A "walk-away" prenuptial agreement is valid in Nevada. "Nevada follows the Uniform Premarital Agreement Act, which has been adopted by about half the states." (See http://uniformlaws.org/ ; as of 2013 it seems that 26 states had adopted a 1983 version of this act and just two had adopted a cleaned-up 2012 version.) As in other states, a prenuptial agreement cannot limit a court's ability to award custody or child support. Given that Nevada shares California's community property structure and adherence to this uniform act, readers might find our companion short book California Prenuptial Agreements useful.
The average hourly wage in Nevada is $20.16 per hour. A person who goes to college at the University of Nevada, Reno will spend approximately $68,732 over four years to earn a bachelor's degree. Census 2014 data show that the median income for a 22-36-year-old college-educated woman working full time is $38,000 ($30,799 after taxes). For a corresponding man it is $50,000 per year or $39,456 after taxes. Nevada is one of the lower tax burden states in the Union, collecting 8.1 percent of residents' income to fund state and local government (compare to an average of 9.9 percent and over 12 percent in states such as New York and New Jersey; source: Tax Foundation). Nevada has no individual income tax and no estate tax.
The average annual cost of child care is $9,413 for an infant, $7532 for a four-year-old, and $4879 for a school-age child. Thus the total cost of child care from age 0 through 12 is $51,668. As noted above, a successful child support plaintiff may be able to get a court to order child care expenses on top of guidelines child support.
For a man who goes to college and then works for 14 years, his total spending power (after-tax income minus college tuition) would be approximately $483,652. Factoring in USDA-estimated child-related expenses, he would need to collect $2,989 per month in child support to enjoy a personal spending power greater than in the college/work scenario. This is well above the $1,092 statutory cap.
The corresponding woman can spend $362,454 by going to college and working. She would need to get $2,428 per month in child support to do better. Again, this is well above the $1,092 statutory cap. If she has two children with two different fathers she would need to get nearly $1,600 from each father to be able to spend more than her college/work peer group. Again, this is above the cap.
Nobody in Nevada can earn more by collecting child support at the guidelines level than by attending college and working at the median wage for a college graduate.
A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
"Under Nevada law, there is a presumption of joint legal custody. There is no presumption for shared physical custody but there has been a pendulum of movement toward shared physical custody in the 60/40 range. A typical outcome these days could be anywhere between a 9/5 or 4/3 split of nights all the way up to 50/50." [As noted above, the 2015 statute revision would tend to push this scenario toward 50/50.]
Will the photographer have income imputed to him? "Initially no. He's part of a household with income. In the longer run, yes if he shows zero or minimal income. If he does come to court with at least some income, the judges are inclined to accept that stated income."
Can the photographer collect child support from the doctor-mother? "Yes. In Nevada if you fall within shared physical custody, the parent that is earning the most money is the obligor. That's why there is always a quarrel over that fifth overnight. The child support amount is obtained by subtracting the lesser income from the larger and then using the child support guidelines. In this case the mother will be paying the father $1,074 per month, from the top of the guidelines."
Given the disparity in income, what is the likelihood that the mother will be ordered to pay the father's legal fees of defending this lawsuit? "More than likely the doctor will be ordered to pay the husband's fees. Fees are assessed against community property. It does not matter which party is plaintiff. There is a strong sentiment that it is against public policy to prevent courts from helping the unempowered spouse to hire a lawyer."
There would be little to no alimony in this case according to Jimmerson. By custom it is limited to between one third and one half the length of the marriage. The photographer will, however, be entitled to 50 percent of all assets acquired during the marriage due to the fact that Nevada shares community property laws with California.
A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
"They would be assigned joint physical custody and the court would introduce other mechanisms to solve lack of communication. A Nevada court can order them to hire and pay for a parenting coordinator, says Jimmerson." What would the schedule look like? "It could be one week on/one week off, 4-3-3-4 or 2-2-3 (same as 5-2-2-5)." What about the challenges of cooperating on issues related to legal custody? "It is rare but it does sometimes happen that a judge will split up legal custody, e.g., designating one party to make decisions regarding a child's medical care." Generally, however, courts expect nearly all parents to be able to work things out for their children: "We have convicted felons who have joint legal custody," says Jimmerson.
Due to the 50/50 parenting time split and similar incomes there would be no child support ordered. Nor would there be alimony in this case.
An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
"The custody and parenting time schedule would depends on the father's ability to parent. If he is on call all the time then a 5/2 split with an additional dinner might be the order. Or the court could go with 4/3. It would be a close call over the 5th night," says Jimmerson. "The age-old historical primacy that mom might have had doesn't apply anymore in Nevada. This couple had a traditional division of labor, with moneymaking to the father, and child-rearing to the mom. If dad is willing to change his work hours then public policy suggests that dad is allowed to do that. At age 4, if the father could demonstrate the ability to care for the child, the schedule might be adjusted to 50/50." [As noted above, the 2015 statute revision would tend to push this scenario toward 50/50.]
Jimmerson shares some of his own experience with changing parental roles following a divorce: "I'm a much better parent today that I was at the time of my divorce 20 years ago. A man can be as good a parent as a woman and should be given the opportunity to do so."
Based on the Wright v. Osburn case, the parent with the larger income will pay child support. In this case there will be a subtraction of the incomes, a multiplication by 25 percent and then a cap of $1,074 per month per child (thus in this case, the child support would be in the neighborhood of $25,000 per year). If the mother does not return to work, an income of roughly $2,500 per month would be imputed to her, according to Jimmerson.
The home equity and savings will be divided 50/50 due to their acquisition during the marriage and Nevada's community property rules. Jimmerson estimates that the mother will receive between four and five years of alimony at roughly $5,500 per month. "There is no formula; it is all discretionary with the judge." What would justify longer term alimony? "There is no caselaw, but typically a marriage would have to have lasted 20 years or more to yield lifetime alimony. It depends on the length of the marriage, the ages of the parties, and their health and ability to work."
A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
"They will have joint legal custody," notes Jimmerson, "but it is likely that the mother will have primary physical custody for some period of time. The father will visit 3-4 days per week for 3-4 hours at a time. Overnights will be limited, as few as 0 and a maximum of 2 nights per week." What about as the child gets older? "There will be an adjustment toward shared physical custody if the father continues to show interest in the child and has enough flexibility in his work to be available as a parent."
Whether she has sole or shared physical custody, the mother will receive the maximum child support of $1,074 per month. "Alimony will be for a minimal term, if at all," says Jimmerson. The father's pre-marital savings cannot be touched by the plaintiff due to Nevada's community property laws. However, "income from the separate property can be considered for the purposes of calculating alimony," says Jimmerson.
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
Jimmerson says that there are no changes to the analysis due to the lack of a marriage. "The father's availability will determine how much parenting time he will have. There is a fair chance of joint physical long-term but it will be primary to the mother for the first months of infancy."
The mother will receive $1,074 per month with no chance, in Jimmerson's opinion, of winning a higher award.
What if she gets married at 25 to a man earning $100,000 per year? "If she has primary custody it will stay at $1,074 per month. If it is a 50/50 custody situation, a reasonable amount of the new husband's income can be considered as part of her household income. But it wouldn't be more than 50 percent of the husband's income and therefore the child support would remain at $1,074 per month."
What are the standards in Nevada for removal? Jimmerson says that there are two scenarios. In the first scenario, a parent with primary custody wants to move. "The important question is whether there is availability for realistic substitute visitation," says Jimmerson. "Instead of every other weekend it could become eight or nine weeks in the summer, every spring break, and alternating Thanksgiving and Christmas." Are requests for removal when such visitation is possible successful? "In most cases the courts have found 'yes.' Absent an incredibly vigorous record by the dad, e.g., a history of lots of motions for more parenting time that were denied, the woman would typically succeed." Jimmerson notes that there is a trend within Nevada toward judges denying removal requests even when a parent has primary physical custody.
The second scenario for removal is where there is shared physical custody. "With 60/40 or 50/50 custody it becomes substantially more difficult for a parent to move away. The first step is to win a change of custody to become the primary physical custodian. Then one has to show that the child's best interests will be served."
"In mediation, I try to assess the quality and character of the parents. Are they essentially good people? Attentive to kids? Do they sacrifice for their kids, putting their kids' interests ahead of their own? If so, I push the parties toward a joint physical custody arrangement as being in the child's best interest. As a matter of public policy, we want to encourage parents to be involved with their kids and kids to be involved with their parents," says Jimmerson.
Like many other attorneys that we interviewed, Jimmerson is critical of rigid guidelines for custody, child support, alimony, etc. He notes that these one-size-fits-all rules are not always fair in a particular situation and/or do not fit an individual family. Unlike some other attorneys, however, Jimmerson is not a cheerleader for litigation: "Litigation is so expensive and does so much psychological damage that gets in the way of parenting that building in a lot of room to litigate does not serve either children or parents."
Due to the flexibility that Nevada courts allow in modifying parenting time arrangements and the preference shown towards relatively equal time for children with both parents, Nevada does not reward pre-lawsuit planning to the same extent as other states. In a two-career household, for example, the parent who expects to file a lawsuit and aggressively volunteers for child-related tasks during the year prior to suing is not likely to win primary physical custody or, if custody is won, is not likely to hold onto it for very long.
Due to the fact that child support awards are capped, with some judicial flexibility, at a level only somewhat higher than the cost of having a child around the house, Nevada discourages custody litigation, lurid tales of sexual abuse, and working the domestic violence system.
Nevada provides an example that when child support is limited by statute, the children of wealthy parents still enjoy every conceivable material advantage, but it is provided by parents voluntarily rather than via court orders.
Nevada inflicts the least possible injury on children, in light of the shared parenting research psychology literature and attorney anecdotes regarding the damage done by litigation. However, the flip side is that a person determined to profit from child support needs to get out from Nevada's jurisdiction. If the future parents are unwed, an easy way to accomplish this is with a weekend trip to Boston or Los Angeles to take advantage of the Uniform Interstate Family Support Act's section 201(6) ("the individual engaged in sexual intercourse in this State and the child may have been conceived by that act of intercourse.") to gain Massachusetts or California jurisdiction when the baby is ultimately born. If the parents are married, the future plaintiff is much more likely to get primary/winner parent status and a more profitable child by persuading the future defendant to move to Los Angeles for six months or Boston for year, at the end of which a divorce, custody, and child support lawsuit may be filed.