Nevada Community Property 3 Flashcards
common law marriage
Nevada does not recognize common law marriage, but does recognize a common law marriage that was validly contracted in another state
community presumption
all property acquired during marriage is preemptively community property. The burden of proving that a particular asset is separate property is on the party so contending, who must overcome the community presumption by CLEAR AND CONVINCING EVIDENCE
community property
all property (other than separate property) acquired by either spouse during the marriage is community property, each spouse owns an undivided and indivisible one-half interest
divorce
community property is divided 50/50 between the spouses unless compelling reasons (financial misconduct only) justify an unequal division, CP community does not end until final decree of divorce
mixed ownership
when an asset is part SP and part CP, the source of funds determines whether asset is SP or CP
separate property
(i) property owned by spouse before marriage (ii) property acquired during marriage by gift, will, or inheritance (iii) an award of personal injury damages (iv) rents, issues and profits of the foregoing property
tracing principle
assets purchased with separate funds are separate property. this is established by “tracing” the property back to the funds used to purchase it
transmutation
agreement made during marriage, parties may agree to partition community property into separate property. If an item is SP, a mere change in its form will not change its character unless it is transmuted or gifted to the community.
valid marriage
(1) marriage license must be issued (2) ceremony must be performed by person authorized by law to solemnize marriage
just and equitable alimony factors
career prior to marriage, length of marriage, marketability, ability to support oneself, education during marriage, stayed home with children
lifetime gifts
neither spouse can make a gift of CP without the other spouses express or implied consent
creditor claims
funds borrowed during marriage are preemptively on community credit
trumping the presumption - borrowed funds are classified according to:
primary intent of the lender - what was he primarily looking to in satisfaction of the debt? SP or CP?
installment purchase
is begun before marriage and payments are made with CP during marriage, the asset is part SP, part CP, in proportion to the proration formula
premarital agreements
1- in writing
2- signed by both parties
defenses to enforcement of premarital agreement
not provided full and fair disclosure of property or financial obligations, did not sign a waiver of such disclosure, did not have independent knowledge of other party’s property and had no way to gain that knowledge
child earnings
- if parents living together = CP
- if parents separated = SP belonging to parent with custody or parent who child lives with
personal injury recovery
SP of injured spouse
employee retirement benefits
CP, even if retirement benefits are not vested at time of divorce
defined benefit plan - retirement
Nevada courts compute the community share of a defined benefit plan by applying a proration formula
numerator: months of employment during marriage
- —
denominator: months of employment to date eligible to retire
non-employee spouse’s share of a defined benefit plan during divorce (2 methods)
1) lump sum
2) wait and see preferred method in Nevada
Pereira formula
Under Pererria, H recieves the value of his initial investment plus a reasonable rate of return (usually 10%) on the property brought into the marriage. H invested [$__] to start [company] and is entitled to 10% interest for the [number] years of the business while married. The remaining value of the business is CP to be divided between H and W.
Van Kamp formula
Under Van Kamp, the CP interest is the reasonable value of the spouses services, minus family living expenses. The court will impute the estimated value of H and W’s efforts and deduct family expenses to determine the CP share. The remaining amount is H’s SP.
lump sum
determine present value of CP interest and award 1/2 to non-employee spouse
wait and see
preferred method in Nevada
court determines CP interest, but payment to non-employee spouse deferred until the employee reaches retirement age. Court retains jurisdiction until retirement plan begins
Gift of CP is made without consent and is challenged during donor’s lifetime?
gift can be set aside in it’s entirety
Gift of CP is made and not challenged during donor’s lifetime?
1/2 can be set aside to non-donor spouse
UCCJEA - child custody
Nevada has adopted the UCCJEA, a statue that seeks to avoid jurisdictional disputes. Divorce courts are authorized to make custody awards. As between two states the UCCJEA controls.
best interest of the child
The sole consideration of the court in determining custody is the best interest of the child. There is a preference for joint physical custody. The court must consider factors such as which parent is more likely to allow the child to have a continuing relationship with the noncustodial parent.
home state test
UCCJEA applies - In determining initial custody- the primary test is the “home state jurisdiction” test. The court has jurisdiction to initially enter a child custody or visitation order in (i) the child’s home state (ii) was the child’s home state within the past 6 months and the child is absent from the state, but a parent continues to live in the state. A child’s home state is the state in which the child lived with a parent for at least 6 consecutive months immediately before the proceedings.
business in marriage intro
When CP labor is used to enhance the value of a SP business, the court may apply one of two formulas to calculate the CP interest in the appreciation of the business. Selection of the applicable formula is discrestionary with the court, but Nevada preferes the Pereira formula, as it favors the community. Pereira is used when personal skills and effort were the primary factors in the growth of business during marriage. Van Kamp is used when capital investment, natural growth, or the unique nature of the SP business are primary factors in the increased value and profits.
Social Security benefits
under federal law, Social Security benefits are the SP of the recipient spouse. Under the Supremacy Clause, federal law preempts inconsistent state laws. The federal law preempts conflicting CP law. Social Security benefits are not subject to division upon divorce. Social Security benefits are the sole SP of each spouse.
debt
debts incurred during the marriage are presumtively community debt. The community is responsible for paying community debts. Each spouse, acting alone, is responsible for paying community debts. If CP is insufficient to pay the expenses, the creditor can reach the SP of the spouse who incurred the expense.
jurisdiction alimony and child support
An action for divorce may be brought where one of the spouses is domiciled. Domicile is presence in Nevada with intent to remain there. Before filing for divorce, Nevada requires that a person be domiciled in Nevada for at least six weeks.
