Preliminary Matters and Motions

Joint Preliminary Injunctions

Some kinds of orders can be obtained immediately upon filing for divorce. The Joint Preliminary Injunction (JPI) is one way the Court can protect a party’s children and property rights.

What do JPIs protect parties from?

According to EDCR 5.703, actions barred by a JPI include:

1. Disposing of any joint, common, or community property of the parties outside of the usual course of conduct without written consent of the other parties or the permission of the court. This includes Cashing, Canceling, Transferring, Disposing Of, Borrowing Against, or Changing the Beneficiaries of retirement benefits, pension plans, or insurance coverage.
2. Molesting, harassing, disturbing the peace of or committing an assault or battery on the person of the other party, child, step-child, or other family member.
3. Attempting to relocate with a child in an attempt to deprive the court of jurisdiction over said child.

Exceptions to JPIs in Property Matters

There are a few exceptions to the use of alleged community property that a JPI cannot protect parties from:

1. The property use occurs in the usual course of conduct.
2. The property is used for the necessities of life.
3. The property use is made for the purpose of retaining counsel for the case in which the JPI was obtained.

Does a Party Need to Prove the Money or Asset is Community Property? 

After filing for divorce, a party can request a clerk to issue a JPI. The requesting party is not required to prove that there is a community interest in the specific piece of property. 

Instead, under EDCR 5.703 (formerly 5.518 prior to June 2022), if the piece of property is subject merely to a claim of community interest, a clerk must issue a JPI upon the request of any party involved so the Court can ensure that property is allocated fairly between all parties. Nelson v. Eighth Jud. Dist. Ct., 137 Nev. 139, 142–3 (2021).

When a JPI Takes Effect and Terminates; Consequences of Violation

Once issued, JPIs are automatically effective against the requesting party, but only effective against the other parties upon service. Once a party is served, all notice requirements are satisfied.

The injunction is enforceable by all remedies provided by law, including contempt. The Nevada Supreme Court has determined that a punishing legal action by a lower court in response to a defendant’s violation of a JPI was acceptable. For example, when a husband took money from a community account and gave it to his father (despite a JPI being in place) the Court determined the wife should receive a larger percentage of the remaining property. Lofgren v. Lofgren, 112 Nev. 1282, 926 P.2d 296 (1996).

The requested JPI remains in effect until the decree of divorce or final judgment is entered.

Motions

More specific requests for assistance from the Court must be requested by motion, which may be filed at any time from the filing of the divorce Complaint until the end of the case.  Certain kinds of emergency orders may be obtained “ex parte”; that is, without notice to the other party, but such motions are disfavored.

A Motion for Temporary Relief

More typically, a motion for temporary relief asks the Court to have a hearing after notice to the other party and an opportunity for the other party to respond. 

At the hearing, the Court, on a temporary basis, may order:

1. Custody of the minor children;
2. That the other spouse leave the residence;
3. Payment of spousal support or child support during the proceedings;
4. That a party be prevented from selling or borrowing against marital property except in the usual course of business;
5. An award of preliminary attorney’s fees and costs of the petitioning spouse (generally on the basis of who has more funds available); or
6. That either or both spouses do some act, or refrain from some act or behavior that the other finds objectionable, usually relating to the children, house, or possessions.

If any relief relating to money is requested, each party is required to file a “Financial Disclosure Form”.

Hearings on motions are usually not “evidentiary.”  In other words, they do not involve testimony by the clients or anyone else, but only arguments by the attorneys.  The Court can decide, however, to set an “evidentiary hearing” on any contested issue, at which witnesses are called to the stand to testify.

The issuance of a temporary order does not finally determine the rights of the parties; final decisions occur by settlement or at trial.  In reality, however, a “temporary” order regarding custody or possession of the residence can be given substantial weight later on in a case, especially if there is a long time between that order and the trial date.

WILLICK LAW GROUP vigorously litigates preliminary motions, when necessary, so that the rights of our clients are protected at all phases of the litigation process.

Downloadable Documents and Links

• Clark County JPI Form
• Financial Disclosure Form
• Legal Note No. 44: JPI Violations and Contempt

© Willick Law Group

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