In November 2020 Nevada became the first state in the United States to recognize same-sex marriage in its constitution. This reversed a voter referendum which amended the constitution in 2002. The 2002 constitutional amendment added, in part, that marriage was between “a male and a female person”. The 2020 referendum repealed the 2002 amendment and added, in part, that marriage is “between couples regardless of gender.” Thus our Las Vegas divorce attorneys have seen Nevada do a complete 180 degree turnaround on marriage equality in the last 18 years.
With the expansion of marriage rights to same-sex couples, however, comes the extension of all of the other issues associated with marriage. Same-sex couples seeking to end their marriages must go through divorce proceedings as would any married spouses. They also should seek legal counsel from same-sex divorce lawyers in Las Vegas.
A Brief History of Same-Sex Marriage in Nevada
Same-sex marriage has been legally recognized in the State of Nevada since October 2014, when a federal court threw out Nevada’s then-existing ban on same-sex marriage. Nevada’s ban on same-sex marriage was still in the state constitution, but it was rendered legally unenforceable in 2014. That ruling was reinforced in 2015 when the Supreme Court of the United States declared all bans on same-sex marriage to be unconstitutional.
Same-Sex Divorce Matters in Las Vegas
According to federal constitutional law, family courts must treat same-sex divorces the same as they would a heterosexual divorce. In Las Vegas that means one spouse in a same-sex marriage must file for divorce in Clark County Family Court. They must also cite the appropriate legal grounds. Nevada is a no-fault state so the most commonly used grounds are incompatibility with no chance of reconciliation. Neither party has to prove any grounds in a Las Vegas divorce case. In other words, one spouse cannot refuse to dissolve their marriage. They can, however, contest the terms and conditions which govern the marital dissolution.
A same-sex divorce will address distribution of property, alimony, child custody, and child support. Nevada is a community property state which means that the marital assets are divided between the parties during divorce. Many people think this is a simple 50/50 split of assets. Seasoned divorce lawyers in Las Vegas know that the reality is different. Marital law is just not that clear cut. There are countless gray areas that can come in to play. These include prenuptial and post-nuptial agreements and the validity of same, assets owned prior to marriage by one or both parties, commingling separate property with marital assets – to name just a few. Then there’s the matter of possible alimony. Alimony claims are unique and resolved on a case by case basis without a set standard of mathematical calculations supported by legal statutes. These issues are complex and require an experienced legal skill set to protect your rights.
The same goes for child related issues. Family courts default to awarding joint legal and physical custody to shared parents unless there is good reason to do otherwise. But child custody issues can have disputes. The intricacies of child custody disagreements are varied and numerous. The family courts always look to what’s in the best interest of the children. There is no substitute for having an experienced divorce lawyer on your side if child custody is contested. Child support is calculated under the factors outlined in the Nevada statutes but only after child custody is determined.
Same-Sex Marriage Versus Domestic Partnership
Same-sex marriage has been legal in Nevada since 2014. Before 2014, same-sex couples looking to make a legal commitment could only rely on a domestic partnership governed by NRS 122A. Now, couples can choose to either get married or enter into a legal domestic partnership. The two systems are somewhat similar, but certain federal rights do not apply to domestic partners that do apply to marriages. The dissolution of each can also be different.
Key Differences Between Marriage and Domestic Partnership
Domestic partners and married couples in Nevada share some of the rights and responsibilities. They automatically inherit property if their partner dies without a will, they may be entitled to financial support upon dissolution, they can make medical decisions and visit their partners in the hospital, they can sue for wrongful death on behalf of their partner, and property rights for both are identical. However, there are certain differences between domestic partnerships and marriages.
The primary differences are as follows:
- Legal requirements. Marriages and domestic partnerships have slightly different legal requirements. Domestic partnerships require the partners to live together; marriages do not. Marriages require a solemnization ceremony; domestic partnerships do not.
- Tax returns. Domestic partners must file as single on their federal tax returns, while a married couple can file jointly.
- Cross-state recognition. While a married couple is automatically recognized as married in all states, domestic partners may have to register as domestic partners in whatever state in which they reside.
- Federal benefits. Domestic partners are not entitled to each other’s federal benefits, including Social Security, Veteran’s benefits, or health insurance and pension benefits for federal employees.
Dissolving a Domestic Partnership
If the parties are not married and instead are in a legal domestic partnership, they have two options for dissolution. First, they can file a complaint for divorce in family court and go through the same legal procedures as a divorce case. Second, if the couple qualifies, they can file a Termination of Partnership with the Nevada Secretary of State. A Termination of Partnership is a fast-track dissolution proceeding.
But the couple must meet certain requirements. It’s for those who have been in a domestic partnership for five years or less. They cannot have unresolved issues with minor children or property divisions which are not covered by a written agreement. Child support must comply with current Nevada statutes. Both parties must also waive the right to seek additional maintenance or pursue further legal proceedings.
Expert Legal Representation for Your Las Vegas Same-Sex Divorce
Our seasoned divorce lawyers in Las Vegas are ready to help you navigate all aspects of your divorce or dissolution of a domestic partnership, from complex asset evaluation and property division to alimony and child custody issues. We are ready to draft and execute a prenuptial or post-nuptial agreement or challenge unfair provisions in an existing agreement. Call 702-222-4021 to speak with one of our divorce attorneys regarding a consultation.