All Proceeds From Traffic Tickets From October To The End Of The Year Go To The Susan G. Komen Foundation For Breast Cancer Awarness

Charity is an important part of Baumgardner Law.  We have decided to donate 100% of the gross proceeds of traffic ticket revenue to four charities per year.  For the fourth quarter of 2013, (October through December), we will donate 100% of traffic ticket fees ($35 for most tickets) to the Susan G. Komen Foundation for breast cancer awareness.  Pass the word along!

Does It Matter Who Files For Divorce First In Nevada?

Nope.  People ask me this question all of the time.  There is no tactical advantage to be gained from being the one to file or the one to respond to a divorce.  After that, however, the chess match begins and you’ll want an experienced divorce attorney to guide you through the process.

I Want To Get A Divorce, But Don’t Know Where My Husband/Wife Is. What Can I Do?

This happens surprisingly more than you would imagine.  Sometimes, people grow apart and then they move apart, but never bother to legally separate or divorce.  Time passes, addresses change, and then, usually, one of the parties wants to get remarried.  As most people know, you have to personally serve the other party with a Summons and Complaint to initiate divorce proceedings.  But how do you serve someone if you don’t know where they are?  The answer is: service via publication.

First, you have to make reasonable efforts to find him, and inform the Court that your process server has tried to locate the person.  My process server gives me an affidavit informing the Court of the steps he has taken to locate the person.  You attach the affidavit to an ex parte (one sided) application for service via publication.  When the Judge signs the Order, you then must publish a notice in a periodical of your choice (I like to use Nevada Legal News), once per week for four weeks.  At the end of four weeks, the other party is considered “served” and the 20 days he has to respond commences.

If 20 days runs, and you have not heard from that person, then you begin default proceedings.  People often ask: how long will it take?  I even had a client once come into my office with a wedding planned in 30 days.  I told her to move her wedding immediately.  This process takes a long time because there is a lot of red tape to cut through.  It takes about two weeks to get the affidavit from your process server, then about another two weeks to get the Order for Service Via Publication, then you have to Publish for four weeks, then the 20 day period runs, then it takes about another 2 weeks to go through the default process.  All in all, you’re looking at about three-and-a-half months in the best case scenario, so plan accordingly!

What Happens If The Other Side Doesn’t Respond To My Complaint For Divorce?

A party has 20 days beginning the day after he is served with a Complaint and Summons to file a responsive pleading, such as an Answer or a Motion.  If that party doesn’t respond in 20 days, you can initiate default proceedings.  If the party has an attorney who has made an appearance (even a phone call or email counts as an “appearance”), or if the party himself has communicated with you or your attorney, the you have to send a Three Day Notice Of Intent To Take Default.  This puts the other side on notice that you’re about to proceed without him.  If three days pass and you still don’t hear anything, you can proceed on the Default Application.

If, however, you haven’t heard a peep out of the other side and 20 days has passed, then you can send the Default Application directly to the Clerk.  When it is returned signed and stamped from the Clerk, you have to file it, and from this point on, you need not serve the other side with any documents, or give notice of any hearings to the other side.

The next step is to request a prove-up hearing in your department.  This is where you and your attorney go into court and make a record of all of the items that are put into the Decree of Divorce.  You still need to file a Decree with the Court to memorialize the record of the prove-up hearing.  And, Voila, you’re divorced.

The next question is: can the other party undo this process?  The answer is: yes, within reason.  If the other party has a legitimate reason why he couldn’t respond (such as he was in the hospital and didn’t know about the proceeding), then he can file a Motion to Set Aside Default Judgment.  Now, he doesn’t have forever to do this.  It must be done in a reasonable time and a reasonable fashion.  At which point, you are back where you started, and he will have 20 days to file a responsive pleading to your Complaint for Divorce.

Is It Bad If I Move Out Of The House When My Las Vegas Divorce Is Pending?

This is a slippery issue.  On the one hand, if you’re concerned about losing your interest in the house by moving out, then you’re in good shape.  In other words, if you move out of your home while the divorce is pending, you are still entitled to 1/2 of the value when you get to the stage where you split up the community assets.

Here’s where it gets tricky: if you have children, moving out during the divorce could have negative implications.  If you’re moving out while the children are staying in the house, the other party could argue that you have abandoned ship, and therefore he or she should get primary physical custody.  If you plan on moving out and taking the children, the other side could argue that you’re trying to alienate him or her from the kids. 

When a divorce is initiated, things are often heated in the home, and one party wants to move out briefly to avoid exposing the children to high levels of conflict, but plans on asking the judge to temporarily award him or her exclusive possession of the home during the pendency of the divorce.  In this case, you’re creating an uphill battle for yourself.  If you want temporary possession of the home, it’s best to stay in the home until the judge rules on your motion for exclusive possession.

At What Age Can A Child Decide Which Parent To Live With In Nevada?

I can’t tell you how many people come into my office and think that at age 14, a child can decide which parent to live with.  This is not accurate.  Now, this doesn’t mean that the child’s preference doesn’t matter.  In a custody dispute, the overwhelming concern of the Court is the best interest of the child.  NRS 125.480 lists 11 factors that the Court must consider in determining what is in the child’s best interest.  One of these factors is the preference of the child if he is of an age to form an intelligent preference. 

Perhaps the more important inquiry by the Court is why the child prefers one parent over the other.  Does the child prefer Dad’s house to Mom’s because at Dad’s there’s no bedtime and Dad doesn’t make him do homework?  Of course, the Court will give equal weight to the child’s preference, and the motivation for it. 

I’m involved in a case right now where a Dad is trying to get primary physical custody of the couple’s 14 year old child (I represent the mother).  His only argument is that the child prefers to be at Dad’s.  When the judge ruled in favor of the mother, she said, “just because a kid wants chocolate cake for breakfast doesn’t mean that it’s in his best interest.”  Well put.

How Do I Get A New Judge In My Family Law Case? All About Peremptory Challenges In Las Vegas, Nevada

One huge problem in the Clark County Family Court system is the lack of consistency, which means a lack of predictability.  There are 20 family court judges, and they each have a broad range of discretion to make orders in their cases.  The same set of facts presented in 5 departments may yield 5 different results.  While you’re not allowed to “judge shop” (i.e. switch judges until you get one who you like), you do have the option of a peremptory challenge.

A peremptory challenge is a mechanism “designed to ‘insure a fair tribunal by allowing a party to disqualify a judge thought to be unfair or biased’ ” whether such belief is real or imagined.  Smith v. Eighth Jud. Dist. Ct. ex rel. County of Clark, 107 Nev. 674, 677, 818 P.2d 849, 852 (1991).

Nevada Supreme Court Rule 48.1 outlines how to request a peremptory challenge: it must be filed no later than 10 days after notification to the parties of a trial or hearing date, or not less than three days before the date set for the hearing of any contested matter, whichever occurs first.  The notice need not specify the grounds for the challenge.

In other words, you cannot, under any circumstances, DQ a judge after he or she has made a substantive (as opposed to procedural) ruling.  The problem here is that litigants often don’t decide that they want a new judge until after the judge makes an unfavorable ruling, but by that time, it’s officially too late.

What are some other reasons you might want a peremptory challenge?  Maybe your attorney and the judge aren’t BFFs, or maybe your judge is known to give inconsistent or unfavorable rulings in cases that are factually similar to yours.

In my opinion, a peremptory challenge should be a last resort.  This is because once you DQ one judge, you can’t choose which judge you get.  That leaves a lot to chance when you’re dropping $450 on the filing fee.  Wait, what?  That’s right–filing a peremptory challenge will cost you $450.

The Role Of Social Media In Divorce

When someone comes into my office, I give them some basic ground rules for how to behave during a divorce.  One of those ground rules is: be careful of social media.  Facebook, Twitter, Instagram and the like are pervasive forces in our lives.  On one hand, they allow us to reconnect and keep in touch with friends and family both near and far.  On the other hand, they are traps for divorce lawyers (like me) to catch someone doing something that can be used against them in a divorce or custody battle.

I prefer that my clients deactivate all social media accounts, at least while a divorce or custody matter is pending.  Not everyone is willing to do this.  The next step is to remove any questionable pictures from your social media accounts.  This includes anything involving drinking, partying, clubbing, or the like.  Even if you innocently had one beer at a baseball game, and that’s captured on your Facebook page, delete it.  Take my word, it will be used against you.

I then advise my clients to go one step further and untag themselves from any pictures that someone else has posted.  This may be tedious, but it will help you in the long run.

My next bit of advice is to never, ever, ever post anything about your ex, your divorce situation, your ex’s new boyfriend/girlfriend, etc. on social media.  If you have made disparaging remarks about your ex, delete them immediately.  If someone makes a nasty comment about you or your situation, don’t take the bait!  Ignore it, and unfriend him or her.  It’s not worth it.  I represented a mom in a case where the dad’s grandparents were seeking visitation rights.  The grandfather posted a rant on Facebook that included some very unflattering things about our Judge.  You better believe that I used that against him, and let’s just say that our judge was not thrilled with his behavior.

On that note, when a client comes into my office, one of the first things I do is go to their ex’s Facebook page and snoop around.  I print out pictures and posts that may be helpful to my client.  If you are anticipating a divorce or a custody battle, you can do the same, and then take the printed pages to your attorney.

Can I Get The Judge To Order A Drug Test On My Ex In Las Vegas Family Court?

Most likely, yes.  It’s typical for allegations of drug use to fly in a family court hearing.  While drug use is always pertinent, it is especially so when the Court is being asked to determine custody issues.  When the parties do not have kids, it is less important for the Court to know whether they’re drug users, but may order a drug test if there are allegations of, say, community waste (which I will address in an upcoming blog post). 

Here’s how it works: When one party, let’s say the Dad, presents even marginal evidence that Mom has used or currently uses drugs, the Court will order that Mom must submit to a drug test.  The Court will then ask Mom if she wants Dad to be tested.  99 times out of 100, she will say yes.  The judge will order each party to pay for his or her own test (approximately $120), and if Mom tests clean, Dad must reimburse her for the cost of the test (and vice versa). 

Las Vegas judges then have the Marshal stamp the hands of the parties and will give the parties a short window during which they must present to a drug testing facility (no more than a couple of hours, to avoid tampering with the test).  Judges typically order both urine and hair tests–more on this later.

In Pahrump Family Court (Nye County) the Court can order a urine drug test immediately at the facility, and trail the matter (put it on hold) until the results come back a few minutes later.  The party being tested must pay for the test.

When a client tells me that he or she wants the Court to order a drug test for the soon-to-be-ex, I always make it clear that they will likely be tested, too.  Therefore, if there is any reason that they may test positive on a urine test or a hair test–which goes back approximately 90 days–then do not request a test of the other party.

What is the 30/30 rule in Las Vegas?

The default setting for un-reimbursed medical expenses is handled by something called the 30/30 rule.  An “un-reimbursed medical expense” includes things like co-pays or any other costs not covered by your health insurance.  So the parent who incurs the expense has 30 days to give a bill to the ex, and then that parent has 30 days to reimburse the first parent for 1/2 of the cost.

If the first parent doesn’t give the ex a bill within 30 days, then he or she waives any right to collect 1/2 of the cost.  The important thing for the parent to do is to make sure there is a record that the bill has been given to the other parent.  I advise my clients to scan and email the bill, or take a picture of it with your cell phone and text it to the other parent.  That way, he or she can’t argue that he or she never received a copy of the bill.

Now, is it worth taking your ex-spouse to court to seek reimbursement for a $20 co-pay?  Probably not.  But if there is a history of the other parent failing to pay you in a timely manner, then you have grounds to go back to court for the missed payments.  If your ex has missed a few payments, keep a calendar of dates that proof of payment was sent to your ex, the date the payment was due, and any payment received, if any.