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Do You Need "Fault" For a Divorce

Do you need a reason to get a divorce? In the past, the court required you to prove a valid reason for them to grant you a divorce. Only "fault" based divorces existed. 

"Fault" meant any person filing for divorce had to prove to the court their spouse engaged in some kind of wrongdoing (such as abuse, or desertion) in order to get a divorce. The only faults typically accepted were were abandonment, and mental illness. ​ Adultery or mental abuse were not sufficient faults. ​ Proving fault added time, and expense to a divorce case. 

And, it made a mockery of the court's perjury laws. Couples who mutually wanted a divorce would need fib to the court about the fault. The couple would prepare a story, which the court had to consider as truthful.

Nevada was one of the first states to remove this hurdle to a divorce. Around 1930 Nevada changed the laws to relax the reasons a court could grant a divorce. In Nevada, couples could be granted a divorce for any of the following reasons; the insanity of one spouse, the spouses living separate and apart for one year, and incompatibility. 

Incompatibility was, and is, by far the most common reason for divorce.​ Simply claiming "incompatibility" is enough to get a judge to approve the divorce. When a person claims incompatibility, it means they don't get along with their spouse and their marriage can't be saved.​ The judge doesn't need to see evidence of incompatibility. 

Nevada changed the rules because couples from California would travel to Nevada to file for a "no-fault" divorce. No-fault means that you are not required to your is the cause of the divorce. While they waited for the paperwork to be processed the couple would stay in the hotels, gamble, and dine. Today, No-fault divorces exists in almost every state.

Can My Spouse Prevent The Divorce?

What if your spouse doesn't want a divorce? What if your spouse wants to stay married? Is this a reason for the court to deny your divorce?

In Nevada, a divorce can be granted with the participation of only spouse and over the objection of the other spouse. As long as one spouse wants a divorce, and claims incompatibly the court will grant it.

What If My Spouse Is At Fault?

What if the reason you want a divorce is because your spouse engaged in some kind of wrongdoing, like had an extramarital affair? Does an affair, or other fault, allow the court to award the non-faulting partner more property, or more alimony?

Because Nevada is a no-fault divorce state, evidence of spousal misconduct is not relevant to the judge's decision to grant a divorce. However, depending on the circumstances of the spousal misconduct, it may be relevant to the judge's decision on other issues, such as an unequal division of assets or increased alimony.

Getting More Of The Assets?

Nevada is a community property state. That means, unless you have a written agreement otherwise, almost all property acquired after marriage belongs to both spouses equally.

When couples divorce in Nevada, the court is required to equally divide the community property unless it finds a compelling reason not to. So, depending on the circumstances and the consequences of the spousal misconduct, the court might consider it a compelling reason to award one spouse a greater share of community property.

For example, you filed for divorce because you found proof your spouse engaged in an extramarital affair. Maybe you have receipts showing your spouse spent thousands of dollars of community property money on some homewrecker. The court might find this to be a compelling reason and award you a greater share of the bank account to reimburse you. 

Here is a link to a typical community property balance sheet. Divorce attorney use calculators like this to help clients understand how the court will divide community property.

Getting More Alimony?

In any divorce case, the judge can order one spouse to pay money to the other spouse for their support if it is "just and equitable." This is called alimony (also known as spousal support). In Nevada, an award of alimony is discretionary with the court. Alimony is is completely up to the judge to decide based on the facts.

However, Nevada law does require judges to consider certain facts in deciding whether to award alimony and how much to award. It also allows judges to consider any other fact they consider relevant in deciding, except the fault or misconduct of either party. This is because, in Nevada, alimony is not a punishment for one spouse's misconduct.

So, is your spouse's extramarital affair something the court will find relevant in deciding whether to award you alimony? Probably not. Nevada law actually prohibits judges from considering spousal misconduct in deciding whether to award alimony. However, if, for example, your spouse's extramarital affair left you with severe depression that prevents you from working, the judge would consider those particular facts in determining whether to award you alimony.

Here is a link to an online alimony calculator. Divorce lawyers use the calculator to provide clients with an estimate of the amount of alimony they will be receiving or paying. 

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Friday, 19 October 2018
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