What Happens in an Initial Consultation?

An initial consultation with a divorce attorney is a great opportunity to address many questions that have been building in your mind for some time. Generally, I go over certain information in each consultation.

1. If you have children, we discuss the difference between legal and physical custody, and the legal standard for each.  We discuss your goals for your children, and how that fits in with Nevada law.
2. If there are children, we discuss the ramifications of different custodial arrangements on child support and whether you will be subjected to pay or receive child support under Nevada law.
3. I like prospective clients to fill out the Financial Disclosure Form prior to coming in, because it gives me a complete picture of what you and your soon-to-be ex earn, expend, owe and own.
4. We then develop a framework for dividing these items.  What is important that you keep, and what are you willing to let go?  How do you think the debts should be divided?
5. I then discuss the Nevada standard for alimony, and run the figures in my spreadsheet to determine a starting point for alimony, if any.
6. We discuss a timeline for the divorce, and I give you my best estimate for how long the divorce will take.
7. Finally, we discuss fees and estimated costs.  We discuss whether you can benefit from a payment plan, and how we can work to achieve your goals within your financial means.

If you want a free consultation, please call (702) 222-3366 or email RLB@BaumgardnerLaw.com.

The Importance of Taking Quick Action When Circumstances Change.

Child support can be modified based on a change in circumstances.  To have a “change in circumstances,” there needs to be a 20% difference in the income of the payor.  What many people don’t understand is that child support will change not from the date that your income dropped, but from the date that you moved the court to modify child support.  I recently had a client who came in for a child support modification.  He owed child support arrearages because his income dropped and he was unable to pay the full amount.  He had a hard time understanding that the judge could not, even if she wanted to, reduce the amount of arrearages.  He then was hoping that the judge would reduce his prospective amount of child support payments based on the arrearages that grew unfairly, i.e. during a time when he wasn’t making much money.  Unfortunately, even if the judge really wanted to help him, she is powerless to modify the statutory amount of child support.  The lesson here is: if there is a change in circumstances, hire an attorney immediately to modify child support.

Happy New Year from Baumgardner Law!

May 2014 be a good one for you and yours!

I Send My Child To My Ex’s House With New Clothes And They Never Come Back. What Can I Do?

You would not believe how often I hear this complaint.  One parent will but the kids new clothes, send them to the other parent’s house and they never return.  So the first parent continues to buy new clothes, and sends them to the ex’s house, and the cycle continues.  This issue understandably makes people very angry, not just because it’s a money thing, but because it’s a respect thing.  However, there really isn’t much you can do about this problem alone.  Unless you specify in the Decree of Divorce that clothes sent with a child must return home with the child, then there is no possibility of using the court’s contempt power (for contempt, you need 1) a clear order, and 2) a willful violation of that order).  And a judge will look at you like you have three heads if you bring some kind of Motion To Make My Ex Return Clothes I Buy For My Kid.

What usually happens in this situation is that there are other issues going on.  Maybe one party isn’t paying child support like he or she should, or maybe one party isn’t abiding by the court-ordered visitation schedule.  What I do, then, is piggy back the clothes issue to the other issue, that way you don’t upset the judge, but you still get the judge to admonish your ex.

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.