Community Property in Las Vegas Divorces
Every divorce involves the distribution of marital property in some form. Different states have different rules about what constitutes marital property. Complicating the divorce process are issues such as separate property before marriage and prenuptial and post nuptial agreements. These are some of the different factors family courts will use in evaluating who gets what share of which property. Below, our experienced divorce lawyers explain how community property works in Las Vegas divorce cases.
What is a Community Property State?
States take one of two general approaches to the distribution of marital property: equitable distribution or community property. Equitable distribution involves weighing a variety of factors in order to apportion marital property between the two parties based on principles of equity and fairness. Obviously there is a wealth of grey areas when using the terms “equity and fairness”.
Nevada, on the other hand, is a community property state. The concept in a community property state is that the divorcing spouses’ joint assets are distributed equally. That means that all income and assets acquired by either spouse during the marriage belong equally to both parties, no matter which spouse earned the income or in whose name the property is titled. Debts acquired by either party during the marriage are also equally shared by the parties and equally distributed upon divorce.
On its face, this might seem like there are no grey areas in community property distributions. However, there are numerous factors that make a fifty-fifty split more of a concept rather than reality.
Is Distribution Always 50/50?
Because Nevada is a community property state, the default approach is for the parties to each receive an equal, 50% share of the couple’s community property. There are, however, certain circumstances under which property will not be distributed equally, including:
- You hire a divorce lawyer whose skill-set is superior to the divorce lawyer hired by your spouse. This is the primary reason that one spouse gets an advantageous share of the assets. In fact, the more complicated your divorce matter is, the more having the better divorce lawyer is a factor.
- The parties entered a valid prenuptial agreement that provides for a different distribution of property.
- The couple entered into a settlement agreement before or during the divorce that provides for a different distribution of property.
- The family court determines that one spouse “wasted” or hid community property.
What Constitutes Community Property?
Only assets that constitute community property will be divided among the parties upon divorce. Each party’s separate property will remain their own providing that the property has been kept sole and separate during the marriage. Separate property can include property acquired before the marriage, as well as property that one party received during the marriage through inheritance or by gift. If by inheritance or gift, it must be explicitly intended for only one spouse. Personal injury awards can also be considered separate property. Other property (and debt) acquired by either party during the marriage can be considered community property and owned equally by each party.
Commingling Separate and Community Property
Commingling is a term that divorce lawyers come upon frequently. Commingling, in its simplest form, is defined as mixing separate and community property. For example, let’s say that one spouse owns a home as their sole and separate property before marriage. However, during the marriage, they use community funds for mortgage payments, to pay real estate taxes, or to otherwise maintain the property. This would be a commingling of separate and community property. There are times where the commingling occurs with such frequency, and/or for such an extended period of time, that it is impossible to ascertain what portion is separate and what portion belongs to the community. In these instances, the property can be deemed completely community property.
Prenuptial and Post-Nuptial Agreements
Our divorce lawyers in Las Vegas are well familiar with determining whether these types of agreements are valid or not. Many people are surprised when they learn that their agreement will not hold up in court. There are numerous reasons why an agreement can be invalid. These reasons can include:
- Did each party have the benefit of independent legal counsel before signing the agreement?
- Was there sufficient time to review the agreement before signing it?
- Does the agreement comport will all aspects of Nevada law?
- Does the agreement have a section regarding child support?
- Is there a severability clause wherein if one section of the agreement is deemed invalid, the other aspects of the agreement remain enforceable?
- Is the agreement worded in such a way that it favors one party over the other so much that it is unconscionable?
Call for Expert Legal Help with Your Las Vegas Divorce Matter
Our dedicated divorce lawyers in Las Vegas are ready to help you navigate all aspects of your divorce case. This includes complex asset evaluation and property division to alimony and child custody issues. We will help you locate all assets that make up the marital estate, ensure that you get your share, and protect you and your children. Divorce lawyers Jennifer V. Abrams and Vincent Mayo offer courtesy phone consultations at no charge. Call 702-222-4021 to speak with one of them about your important divorce matter concerns.
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