MY SPOUSE HAD AN AFFAIR – I WANT A DIVORCE AND I WANT THE JUDGE TO KNOW ALL ABOUT THEIR LYING AND CHEATING!
As a family law attorney in Las Vegas, I have heard this more than once from a prospective client. In most divorces in Clark County, the fact that a spouse had an affair, or was abusive, or gambled, is often times overlooked because Nevada is a no-fault jurisdiction. While no-fault divorce is the standard in Nevada, fault can, and often does, play a role in divorce cases. This article answers some of the frequently asked questions about no-fault divorce and explains where fault may play a role in the divorce process.
What does a no-fault divorce mean?
In Nevada, there are three reasons a court will consider in granting a divorce. These include (1) insanity that existed at least two years before divorce is filed; (2) the fact that the parties did not live together for at least one year prior to the filing for divorce and (3) incompatibility. In other words, to get a divorce in Nevada, you do not have to demonstrate misconduct on the part of your spouse. You simply have to tell the judge, you don’t want to continue to be husband and wife anymore and that you will not reconcile. It is not necessary to demonstrate that your spouse was unfaithful, abusive, a drug addict or alcoholic, or one of the hundred other reasons people get divorced, in order to obtain a divorce in Nevada.
How will a no-fault divorce affect me?
If your divorce is not one where alimony, child custody or a significant division of assets and debts will be at issue, then the fact that your spouse had an affair, will likely not even be considered by the judge. The good news is that you can usually divorce quickly, and relatively inexpensively. You simply need to tell the judge you want a divorce for one of the three reasons stated above (likely incompatibility) and your case should be resolved fairly quickly. However, if your divorce involves dividing assets and debts, alimony and/or child custody, fault may still be relevant.
How fault may affect the division of assets and debts?
Division of assets and debts in Nevada begins with the premise that everything acquired during marriage is community property and therefore, should be divided equally between the parties. Even though Nevada is a no-fault divorce state, and even though Nevada law says that assets and debts should be divided equally, fault may be relevant during a divorce. For example, if your spouse had a gambling problem and piled up tons of credit card debts to support the gambling habit, there is a good chance that your spouse will be 100% liable for that debt. Likewise, if your spouse spent the entire savings account on an affair, chances are a judge will find another asset to award you to make up for the waste of the savings account. All in all, while fault is not relevant as grounds for divorce, it may be relevant when it comes to splitting up assets and debts.
How fault may affect alimony?
In divorcing spouses in Nevada, it is not unusual that a cheating spouse leaves the marital residence and moves in with their lover. In this circumstance, a judge may consider the bills and costs associated with maintaining the marital residence and award maintenance to the non-cheating spouse who is now responsible for the residence and debts throughout the divorce process. Another scenario where fault may affect alimony is when a spouse leaves the marriage to move in with a significant other and is supported by that person. In that situation, the abandoning spouse may have difficulty making a claim for alimony since the Court can consider all sources of support, as well as need, as a basis for making alimony awards.
How fault may affect custody?
Bad behaviors such as recreational drug use, excessive drinking, going out all night and leaving children alone, and a whole host of other behaviors may be grounds to award custody to the not-at-fault parent. In addition, a spouse that has an affair with a child abuser or child molester will also likely lose custody of their children. In these circumstances, “fault” is relevant to determining the best interests of children.
If you are going through a divorce where you believe “fault” may have an impact on the division of assets and debts, alimony and/or child custody, it is important to contact an attorney. Determining the evidence you will need to present to prove “fault” and showing a judge why a spouse’s fault is relevant to the divorce can be tricky. Our office has handled hundreds of divorces where fault played a role in the outcome. Call us today. We can help.