Property Rights and Division
Divorce Attorneys Serving the Las Vegas Metro Area
If you and your partner are getting divorced, regardless of how long you have been married, it is important to understand how the laws of Nevada impact the division of property and assets. Willick Law Group’s experienced divorce attorneys can provide sound legal advice to help you achieve a fair and equitable outcome for your financial future. We are committed to assertively advocating for you and your rights, so you can move forward with confidence. Contact us today to get started.
Nevada Community Property Rules
Nevada is a community property state, with a presumption of equal division upon divorce; that presumption can be overcome only for a “compelling reason,” such as the financial misconduct of wasting or secreting assets during the divorce, or the loss, destruction, or unauthorized gifts of community property.
Normally, all property acquired after marriage by either spouse is considered community property. Spouses are considered to have a “present, existing, and equal” interest in all community property. It is also possible for spouses to co-own property in other legal forms, such as joint tenancy or as tenants in common. There are special rules concerning property acquired by a couple while living in another state, since Nevada does not have a quasi-community property law.
Characterization of Property
Separate Property
Property that is specifically not community property is “separate property,” which is defined in NRS 123.130 as,
“[a]ll property of the wife owned by her before marriage, and that acquired by her afterwards by gift, devise, descent or by an award for personal injury damages, with the rents, issues and profits thereof” and “[a]ll property of the husband owned by him before marriage, and that acquired by him afterwards by gift, bequest, devise, descent or by an award for personal injury damages, with the rents, issues and profits thereof.”
Commingled Property
It is possible for property to have a mixed character, so that there is a community property interest in separate property, or a separate property interest in community property. When property of one type is mixed with property of the other, it is “commingled.”
The Nevada Supreme Court has issued many decisions over the years stating what presumptions apply to such commingled property, and whether, how much, and under what conditions it can be “traced,” or redirected from its titled form of ownership back into some other form.
Retirement Benefits as Community Property in Nevada
Pension plans, including IRAs, 401(k) accounts, Civil Service retirement (under CSRS or FERS) and its Thrift Savings Plan (TSP), and military retirement benefits are all considered community property to the extent acquired during marriage, to be divided upon divorce.
There is a special statute, NRS 125.155, governing division of benefits under the State of Nevada Public Employees Retirement System (PERS), but those benefits are usually divided the same way as other retirement benefits.
Private Employee-Benefit Plans
Most private employee-benefit plans are qualified under, and governed by, the Employee Retirement Income Security Act of 1974, known as “ERISA,” and the 1984 Retirement Equity Act (“REA”).
Drafting Qualified Domestic Relations Orders
Under these laws, division of qualified plans requires a special kind of order, known as a Qualified Domestic Relations Order, or “QDRO,” which have very specific and complex rules. This office drafts its own QDROs in the cases we handle, rather than shipping them out for production by third parties, as many law offices do. In fact, we have a division of the firm, called QDRO Masters, which drafts those orders for attorneys throughout Nevada and across the country. For details, see https://qdromasters.com/.
Considering Survivor’s Benefits in Divorce
Under both private and public-sector retirement benefit plans, it is very important upon divorce to consider, and explicitly deal with, the issue of survivor’s benefits (i.e., money payable to the spouse if the wage-earner dies). Failure to do so can result in a loss of all benefits.
Benefit from the Extensive Knowledge of Our Attorneys on Pension Division
The attorneys in this office have written and lectured extensively on pension division matters such us:
Decree of Divorce
Normally, all property divisions are final when a Decree of Divorce is filed, and cannot be re-examined once another six months has passed. There are exceptions. Clerical mistakes can generally be corrected at any time, and it is sometimes possible to set aside the property terms of a decree in the event of fraud or mistake. Additionally, the Nevada Legislature amended Nevada property division law a few years ago to recognize the right to “partition,” or divide, “omitted assets” — assets that were community property, but were not disposed of in the Decree of Divorce. Such cases are very fact-specific and must be individually reviewed to see if a valid case exists.
Get the Divorce Support You Need From Willick Law Group
The Willick Law Group is a highly experienced and knowledgeable legal team that specializes in all aspects of property division during a divorce. They have been helping couples divide their assets and debts in an equitable and fair manner for many years. With their knowledge and expertise, the Willick Law Group can assist with every step of the process, from negotiating a settlement to filing the necessary documents to finalize the agreement. Call now to get the help you need from the Willick Law Group!