Thursday, September 20, 2012

What does a Complaint for divorce or custody mean?

The Complaint in a divorce or custody action means that the other Party has opened a case in family court and is requesting relief. Although the Complaint is filed with the Court, the Plaintiff’s request as stated in the Complaint may or may not be granted. The Complaint is simply a request by the movant. Often attorneys prepare generic complaints which include unlikely provisions such as attorney fees and spousal support. You must answer a complaint within 20 days of personal service. After an answer is filed, no orders will be implemented until the Parties either file a temporary or permanent agreement or appear before a judge.

Thursday, September 13, 2012

Will the Police enforce my custody order?

Yes and No. It all depends of the police officer that arrives at the scene. Most officers do not like getting involved in domestic disputes over custody orders. It has been my experience that police will instruct you to either obtain counsel or to handle the matter in Court. It really is a crap shoot.

Thursday, September 6, 2012

Can my husband/wife kick me out of the martial residence?

Absent a Court Order, Temporary Protective Order or instructions from the police or child protective services, your spouse cannot kick you out of the house.

If a spouse wants the other spouse out of the house, they must file a Motion for Exclusive Possession providing just cause why the other Party should be ordered to move from the residence. Or, in cases of domestic violence, the applicant can have the other Party removed from the marital residence if a Temporary Protective Order is granted.

Thursday, August 30, 2012

Can the Court send me for drug testing in a custody case or divorce case that includes children?

Yes! If there are allegations that you or the other Party are using either legal (non- prescribed) narcotics or illegal narcotics, you can be sent for a drug test. The Court will actually stamp your hand at Court and you are instructed to go straight from the Court to the drug testing facility.

I tell my clients, the quickest way to lose your children is to do drugs!!!!!

Thursday, August 23, 2012

Do I lose my interest in the martial residence if I move out?

In divorce cases, typically someone is going to move and the Court understands this; however, there may be some negative ramifications of moving out of the martial residence. There may also be some financial responsibilities to which you may or may not be obligated to pay. Each case is different, as such, it is best to talk to an attorney prior to moving.

The short answer is, if you have an interest in the marital residence, you will not lose the interest by moving out.

Thursday, August 16, 2012

Thursday, August 9, 2012

Family and friends may steer you wrong……

Family law practitioners often hear, “my friend or family said that I am entitled to X.” I can’t tell you how many times that I have heard this statement or, “my friend went through a divorce and she received X.”

Every case is different. First, your family and friends probably do not know the law and if your family or friends went through a divorce/child custody action, their action probably had a different judge and the facts are usually different. The other consideration is that your friends and family are probably only telling you what they believe to be true or what they want you to know.

This advice is also relevant in most fields of law including car accidents, wrongful death cases, personal injury cases, medical malpractice cases and slip and fall cases.

A little knowledge can be very dangerous. Listen to your lawyer.

Thursday, August 2, 2012

Clark County Family Court: What if the opposing party does not respond to a motion filed with the Court?

Pursuant to Rule 2.23. Motions without oral argument.

  • At the request of a judge, the clerk must promptly bring to the judge’s attention every motion to which no response has been timely filed. The clerk must also submit all motions, whether responded to or not, to the judge not less that 3 days before the scheduled hearing.
  • If the time to oppose a motion has passed and no opposition has filed, counsel for the moving Party may submit an order granting the motion pursuant to Rule 2.20 to the chambers of the assigned department.
  • The judge may consider the motion on its merits at anytime with or without oral argument, and grant or deny it.
  • When the judge decides a motion before the hearing date, it must be removed from the calendar and the clear must enter an order upon the minutes of the court reflecting the action taken.

First, the Court is not aware until just prior to the hearing (at best 2 to 3) days prior to the hearing if an opposition has been filed or not. The Court will not typically take the motion off calendar meaning that the movant must appear at the hearing.

The movant may submit to the Court, as stated above, an Order granting the motion pursuant to Rule 2.20, however, in Clark County, the Judges are typically reluctant to sign such order absent an appearance.

If the non-moving party does not appear at the hearing and does not respond to the motion, the Court has the discretion to grant your motion in full or in part. Rule of thumb, always appear in Court at the date and time to which the motion is scheduled.

Tuesday, February 7, 2012

What resources are available if I cannot afford an attorney or choose to represent myself in my family law matter?

If you are unable to afford an attorney you may be able to qualify to free legal representation or utilize the services of the Legal Aid Center of Southern Nevada.

Legal Aid Center of Southern Nevada
www.lacsn.org
(702) 386-1070

The Legal Aid Center of Southern Nevada also provides a free consultation though Ask-A-Lawyer program every Thursday from 2:00 p.m. until 5:00 p.m. Contact the Legal Aid Center of Southern Nevada for details. Individuals who choose to represent themselves for any reason can also participate in the Ask-A-Lawyer program.

For those individuals who choose to represent themselves for any reason, they can utilize the Self Help Center at the Clark County Family Court located at 601 North Pecos Road. The Self Help Center provides forms and information on family law matters. Some of their forms are also available online.

Self Help Center
www.clarkcountycourts.us/she/
(702) 455-1500

Tuesday, January 31, 2012

What at the resources for victims of domestic violence?

There are several resources and facilities for domestic violence victims. The available facilities provide significant resources including shelters, counseling, advocacy, and 24 hour hotlines. Below is a list with contact information of facilities that I typically recommend to my clients that are victims of domestic violence.

S.A.F.E. House
www.safehousenv.org
24 hour hotline: (702) 564-3227
Emergency Shelter: (702) 564-3227
Counseling and Advocacy Center: (702) 452-4203

Safe Nest
www.safenest.org
(702) 646-4981
(800) 486-7282

Shade Tree
www.theshadetree.org
(702) 385-0072

Tuesday, January 24, 2012

Nevada does not have a formula to determine if you are entitled to alimony or how much alimony you will receive if you are entitled to an award. Several cases have provided factors that the Court is to look to in determining the extent of alimony if any. You should note that although there are factors for the Court to look to in making a determination, the extent of the alimony is discretionary to the Judge and each Judge varies as to their perception of the factors. Some of the factors are as follows:

  1. The duration of the marriage
  2. The age and health of the Parties
  3. The earning capacity of the Parties
  4. The financial condition of each spouse
  5. The standard of living during the marriage
  6. The contribution of either spouse as a homemaker
  7. Education, skills, and training that each spouse obtained during the marriage
  8. The income or career prior to marriage of the spouse that is to receive support
  9. Each Party’s ability to support themselves
  10. The marketability of each Party
  11. The nature and value of the of the Party’s respective property.

Alimony is not a simple issue as there are several types of alimony (i.e. permanent, rehabilitative, lump sum). Furthermore, along with alimony comes a tax consequence. As such, to fully understand your rights and liabilities related to alimony, you should consult with a family law attorney.

Monday, January 16, 2012

Do I need to retain an attorney or can I represent myself in a family law case?

You can certainly represent yourself in your family law case; however, you must weigh the negatives and the benefits to representing yourself. Obviously, it is less costly to represent yourself and in some cases, proper person litigants may not experience any problems especially in non-litigated cases. There are also negatives to representing yourself. There are complexities to family law cases that proper person litigants may not be aware. Furthermore, in Court, proper person litigants are held to the same standard as a family law practitioner. A judge is not permitted to assist you with your case or provide you with legal advice. Once in the courtroom, you are on your own.

There are problems that many people face in the courtroom when representing themselves. I have observed many litigants in Court representing themselves and they frequently make the same mistakes. If you do choose to represent yourself in Court, do not interrupt the judge, make sure to filter what you say so as not to offend the Court, think through your argument prior to entering the courtroom, do not argue with the Court or the opposing counsel/litigant, speak only to the Court not the other party and STAY CALM.

I never recommend signing any documents or representing yourself in proper person without at least consulting with an attorney to become more knowledgeable as to your rights.

Monday, January 9, 2012

How do I calculate child support if one parent is designated primary physical custodian?

In a case where one parent has primary physical custody, child support is set pursuant to the non-custodial parent’s gross monthly income (before taxes). The gross monthly income is multiplied by a figure determinative by the amount of children subject of the relationship.
1 child = 18%
2 children = 25%
3 children = 29%
4 children = 31%
Each additional child, an additional 2%
Thereafter, the Court looks to the statutory presumptions and sets child support based upon whichever figure is less (the statutory presumption is multiplied by the amount of children). Please see Hanrattylawgroup.com for current statutory presumptions.
Once child support is determined, the Court can consider several factors (NRS 125B.080(9)) when adjusting the child support upward or downward. The factors for the court to consider are as follows:
  1. The cost of health insurance
  2. The cost of child care
  3. Any special educational needs of the child
  4. The age of the child
  5. The legal responsibility of the parents for support of others
  6. The value of services contributed by either parent
  7. Any public assistance paid to support the child
  8. Any expense reasonably related to the mother’s pregnancy and confinement
  9. The cost of transportation of the child to and from visitation if the custodial parent moved with the child from the jurisdiction of the court which ordered the support and the noncustodial parent remained
  10. The amount of time the child spends with each parent
  11. Any other necessary expenses for the benefit of the child
  12. The relative income of both parents
Although the statutory presumptions and adjustment factors still apply in joint custody cases, the determination of child support is different.

Monday, January 2, 2012

What questions should I ask a family law lawyer during my initial consultation?

  1. How long have you been practicing? Please note that some great attorneys have only been practicing 5 years.
  2. What fields other than family law do you practice? It is important to hire an attorney that practices frequently in family law. If they practice in several fields, family law may not be there primary practice which could impact their ability to achieve success. Review their website for truthfulness.
  3. If you already have a judge, ask the lawyer their opinion of the judge. If you do not already have an attorney, ask which judges you want or do not want on your case. This will provide you with insight on how familiar the attorney is with the judges and family court in general.
  4. Ask the attorney the negative and positives of your case. If the attorney guarantees your win….RUN! If the attorney is not honest with your negatives, they are not likely being truthful.
  5. The amount of the retainer and their hourly charge and the hourly rate of their paralegal, or legal assistant.
  6. Will they be handling the case themselves or will another attorney in the office be handling the case.
  7. If your spouse has hired another attorney, ask the potential attorney their experiences with that attorney. Believe it or not, attorneys that get along may benefit your case as they can hopefully work together to settle the case or reduce the cost of attorney fees rather than having squabbling between the attorneys.
Obviously there are several more questions specifically related to your case that you will need to ask as these are just a few questions that may assist you in choosing the best attorney for your case. Meet with at least three attorneys and compare the answers.