Common divorce questions and answers – An interview with Brad Hofland

Mr. Hofland: Filing divorce in Nevada requires the filing of a petition with the courts in Nevada. At the time that somebody wants to file for divorce, we get information from the person as to what their assets and debts are and what the client’s goals are.

The goals are as to the assets and debts, and whether or not that they have children and if so, the custodial timeshares that they’re looking for. And then we’re looking at alimony and child support.

Breaking it down into five things would be: finding out a person’s assets, debts, whether or not that they want alimony, if there’re children involved, and if there’s child support involved as well.

Mr. Hofland: Using an attorney is a difficult process because it’s not something that somebody wants to do. It sometimes can be frightening because of the process and making sure that you’ve got a good fit with an attorney, and making sure the attorney understands your needs and goals. Those are two things to make sure of, that your goals are met as far as your expectations when you want to make sure you get the right outcome with your divorce. And sometimes that’s a problem people have – they don’t really communicate that or have a relationship with their attorney to make a determination as to what their needs are.

Then coupled with that is, what is the cost of an attorney? Making sure they have the proper ability in which to pay for an attorney to represent them in the matter. Having a good relationship with an attorney is a good thing to make sure that all the goals are met and there’s an understanding of what the goals are.

Mr. Hofland: I see that people file for divorce because their lives seem to be going different directions. And sometimes they’ve just grown out of the relationship and they have new interests in life. You see that, unfortunately, when people reach the age of the empty nesters. When people get in their 50s, you see a lot of them who have sustained long marriages getting divorced because things have changed in people’s lives and they want to move different directions.

Then, unfortunately, you also see that people want to file for divorce because of one of the people, parties to the relationship, getting involved with vices, and the vices being with drugs, alcohol, or gambling addictions. And unfortunately, that splits up a lot of marriages.

Mr. Hofland: Mm, no. You know, you would think so because we’re in Nevada, but– we do see some of the gambling issues, but I think that those issues are also prevalent in other areas – we see it, but not as much as you would think that we would see it out here.

You’d think that you would see it in every case because gambling’s so available. But I think that gambling is kinda similar, a gambling addiction, say, where somebody’s gonna go out and binge gamble and spend money, is the same thing, is related to, somebody who has an addiction for alcohol or drugs. So it’s just that it’s available.

Mr. Hofland: You know, I think I’d put that in the area as people growing apart and have reached different decisions. The infidelity isn’t really a basis out here as much. Nevada’s a community property no-fault state where fault is not taken into the aspects of the divorce proceeding. So because there is infidelity, you can’t use that against one of the spouses in which they have unequal distribution of assets or debts. Whereas, in the common law states, that is a basis. So here, we don’t really even go into – dive into that issue.

Mr. Hofland: I think just people not getting along.

Mr. Hofland: In Nevada, you don’t have to have grounds. If you don’t like the way somebody looks, I guess, you can file for divorce. But in Nevada, it doesn’t require any grounds. There’s no basis. It’s a no-fault divorce state.

In Nevada, the grounds, or the requirement by the law is that there’s irreconcilable differences and there’s no chance of reconciliation. Meaning that any reason that you want to file for divorce that it can be granted. There doesn’t have to be a basis or a cause. There doesn’t have to be fault.

Mr. Hofland: In Nevada, in order to have jurisdiction within Nevada courts, you must be a resident of the state of Nevada for six weeks. In order to file for divorce, you must be a resident of the state of Nevada for a period of at least six weeks prior to the filing of the complaint for divorce.

Mr. Hofland: I’ve seen people who have moved to the state of Nevada and made Nevada their place of residency for a period of six weeks, and they’ve filed for divorce afterwards. But when one spouse lives in the state and the other spouse doesn’t live in the state, the only jurisdiction that the Nevada court has over the divorce is the status of, the bounds of, their relationship.

Mr. Hofland: A divorce may be filed in Nevada, but they would only have jurisdiction over the status of the divorce, of the marriage, of the bounds of matrimony. They do not have jurisdiction over the assets or over the debts, over alimony, or over child custody.

Mr. Hofland: In Nevada, if he wants to get divorced, there’s really nothing you can do. But, I mean, generally, when somebody calls me up and says that they have an issue, which they don’t want to have end up in a divorce, is to do whatever it takes to talk to your spouse.

Really, we can’t help you out in the divorce proceeding until an action’s been filed. We don’t give advice and counsel somebody on how to get back together in their relationships.

But it’s important once the divorce is filed, to make sure that somebody’s protected. And making sure is what we do. As attorneys, we make sure that somebody who, even though they don’t want to get divorced but are going through a divorce, are protected because a lot of times people want to give up things in the belief or the anticipation that the other person will get back together with them.

So what we try to do is counsel our clients to make sure that, even though they want to get back together with someone, the rights are upheld and protected so then in the future, if a divorce does go through, they’re in a good position after the divorce is finalized.

Mr. Hofland: In Nevada, the assets are divided into what is fair and equitable. And fair and equitable is determined as kind of 50-50, but the courts don’t look at things, just by what’s 50-50, but they look at things which are fair and equitable. And that’s any property which is acquired during the marriage is community property and all property, which is acquired during marriage, will be shared at the time of divorce 50-50.

Mr. Hofland: We talk to our clients about, we want to know about, the relationship with their spouse. We want to know when they, you know, got into a relationship with their spouse, where they got married, where they’ve lived ever since they were married, where they’ve worked. We want to know what assets they have. And we want to know if there’re children, if there’re children involved with the relationships, what both spouses have with their children.

Then we want to know which spouse has worked during the marriage, how much they’ve earned during their marriage, and whether they’ve relocated around and lived in different places throughout the United States or different places. And why they moved to different places. Was it to follow one person’s career rather than the other person’s career, and whether there was any education that the spouse received during the marriage?

Mr. Hofland: Sometimes it’s helpful, but no, they don’t. I mean, with the Internet, with the computer, you can find a lot of things online, which help us. We’ve got some tools in which we can find out some things that other people really don’t have at their fingertips as far as finding out what assets and debts that they have. But at the time that they come in, we like to get a general overview of what their relationship is, what the marriage is, what the assets of the marriage are.

Having those documents and things like that is helpful, but there’s no need to spend countless hours gathering documents, which you can gather, you know, after you’ve met with the attorney.

Mr. Hofland: Depending on what is at issue during the deposition, they will ask the things, which are questions, which involve the division of assets. So questions will be asked as to what assets did you have during the marriage, what bank accounts that you have, what cars or vehicles and belongings, and what gifts that you received during the marriage. They’ll ask questions as to what education (was received). If alimony’s at issue, they’ll ask questions as to where you resided during the marriage, why did you move to different locations during the marriage? Where have you worked during the marriage? To make the determination as to if alimony’s at issue.

And as to if one of the spouses is not working, they’ll ask questions concerning the reasons why the person’s not working. Was it a mutual agreement? Did one of the spouses tell you not to work? Or did one of the spouses just decide not to work? Or were there no jobs available? And those sorts of questions. Then there may be questions if child custody’s at issue. Who took care of the child or children, what the relationship was, who took the children to sporting activities, who took the children to educational activities and those sorts of questions.

Mr. Hofland: Well, specifically in regards to child custody issues, it’s important to know the dynamics or the relationship with the child and with both parents and which parent is the involved parent with the child regarding education, making sure that the homework’s done, who’s participating in going to the parent-child conferences, who’s making sure that the child gets ready for school, who’s making sure that the child goes to sporting activities, who’s making sure that the child has a relationship with other children. And which parent promotes those relationships between that child and the other parent’s family and those relationships with the other individuals. So those things are important.

And just making sure that an attorney works with the client to put together a plan, and understanding as to what the relationship that a parent may have with a child, which is very important. And then also, in regards to assets, it’s also important making sure that an attorney works with a client to make a determination as to what assets are out there and how to locate what those assets are and placing a value on those assets as far as making a value determination, getting an appraisal on a property, getting an appraisal of a business or vehicles, if there’s vintage vehicles, and of the sort.

Mr. Hofland: If a parent is really involved with a child and the other parent has been a standoff parent and hasn’t participated in raising the child, the court will look at that relationship to make a determination whether or not this was something, which was agreed to or something that has just fallen in place.

And so in a lot of situations, when a parent is the person who stays home, has been the person who takes care of the child on a daily basis, is making sure that the child’s fed every day, does the shopping for the child, takes the child to the doctor’s appointments, takes the child to and from school, works with the child through their homework, and takes the child and helps out with their activities, that parent is the primary custodian of the child for all practical purposes. And the court will look at that relationship and make a determination.

So if one parent is a hands-on parent and the other parent does not or is not involved in the child’s activities, the court will, in most situations, grant that parent primary custody of the child. A lot of times in Nevada now, it’s that the court has changed from looking at that relationship ’cause they’re starting off differently where they look at it as joint physical custody – where they’re looking at both parents first on an equal footing. They’re moving off of that basis.

And moving off that basis, they’re looking to see if a parent has a drug problem, an alcohol problem, or some other sort of addiction problem, which means they do not enjoy a healthy relationship with their children.

Then they would veer away from joint physical custodial relationship, which the court now for the last four to five years has been looking at that relationship first – before moving away from a joint physical to a primary custodial relationship.

Mr. Hofland: There’re things which the court’s looking at. There’s case law in Nevada, which talks about why a spouse isn’t entitled to alimony. And alimony is determined upon some factors. And the factors are what’s the duration of the marriage. And generally, the longer the term of the marriage is, the court is more inclined to grant alimony. They look at the ability for the spouse that’s seeking alimony to get employment. If they have an education, which allows them to get into the workforce, the court’s probably going to be less likely in which to grant a larger amount of alimony.

But then they look at, also, the health of that person, what that person has done to support the family. So if one spouse has gone around taking care of the house, taking care of their household belongings, taking care of things, which, to make it easy for the other spouse to work and lead a career and develop a career, that person should be rewarded for that and should not be at the time of divorce left penniless because now the person that was providing all the support during the marriage has decided to go another direction.

Mr. Hofland: Depending upon some of the departments, depending on which judge that you have, sometimes some departments are a little bit more impacted. Sometimes, cases take a little bit longer because of the issues, and then the attorneys, which are involved. It’s always making sure to look at which battles that you want to do.

Going to court over issues and asking questions about things, which really aren’t going to have an effect on the outcome of the divorce, we try to stay away from those to make sure the cases get done in a quicker fashion.

Mr. Hofland: It’s expensive because it’s personal. And if you take the personal issues out of it, it’s just a business decision. And a lot of people, because it’s a personal issue which you’re dealing with, working with a confidant, make it very personal. And rather than using business decisions, you use personal decisions, and it takes a lot longer to file as it otherwise should have taken because people get upset in the process.

But that’s why you should select an attorney who is going to make sure that they are going to address the business decisions, and you’re looking at what’s going to occur and where you’re going to be several years from now rather than what’s going on right now. Make sure you put yourself in the right position and to get over the pettiness and address what the issues are.

Well, we see a lot of people get into positions with, it’s a personal fight or vendetta against other attorneys. I’ve seen that quite a bit. Or personal fights with the judges, which doesn’t go anywhere. And judges have different preferences and attorneys have different preferences. And attorneys have different ways in which presenting their cases. And we try to stay away from all of that. And so, I mean, with the experience, it gives us the ability to make sure how to get into a case and get a good settlement. And knowing with all these other things, other factors, which are going on, to keep the client directed on the issues.

Mr. Hofland: You know, hiding money in a divorce is kind of easy and difficult in the same period of time. In Nevada, all money is community property up until the time of divorce. In other states, it’s at the date of separation. So it’s all community up until the day of the divorce. But hiding money, unless you’re earning a lot of money, which we have people that live in Nevada, which make money, which own companies and they’re able to not show so much income, but it really comes down to looking at what their tax returns have been in the last several years. And looking at money that they’ve earned from any type of place where they’ve worked.

So looking at the issue, hiding assets, for the most part, though some people think that it’s easy to do, is pretty difficult because if somebody receives a paycheck, you look and see how much money that they’ve received from their paycheck every year. And that’s what they have. And they can go back and reverse it as to what their monthly expenses are. And their monthly expenses are gonna be paying for a mortgage, paying for a car, paying for utilities. What do you have left over afterwards? So that’s the disposable income, which you would have in which to hide.

If somebody else had other money, which they could earn through cash, which they’re selling things or they’re doing side work such as a carpenter or somebody like a plumber or a landscaper can do things on the side, but that money’s going to be limited, in which you can make a determination as to what things a person has purchased, which they could have only purchased because the other money, which they had, wouldn’t have paid for these additional things.

So hiding assets and things like that, people think that there’s a lot of money which is being hidden, but you can just go back each year and look at what somebody’s earned and look what their expenses are. Then you can make a determination as to how much money could they have hidden or not hidden based upon what they’ve earned.

So I think that that issue, a lot of times, is overblown. And when you really look at it, you can limit that to what their earnings are if that makes sense.

Mr. Hofland: A divorce becomes final in Nevada after the court signs a decree and a notice of entry of the decree is filed with the court.

Mr. Hofland: No.

Mr. Hofland: The difference between a divorce and annulment is, an annulment means that a divorce never occurred. And in order for an annulment to occur, you have to show, by clear and convincing evidence, that there was fraud on one of the other spouses. That there was something that should have disclosed prior to the time of the parties getting married that wasn’t disclosed, such as you’re married to somebody else. So the marriage would be void because you were married to somebody else and you can’t marry another person.

You see it a lot of times that people want to get annulled because they never had (kids) – one spouse says hey, let’s have children. And then later on, that person doesn’t want to have children. So they’re saying gosh, I got married to you because I wanted to have children and now you don’t want to have children. So that would be a basis for annulment. We see it occur that people get married because there’re promises that they would get paid money to assist them so they can get status for immigration. We see that. That’s a basis for divorce is that hey, get married to me and come over to the states and now you can get a Green Card. We see that.

We see that people are intoxicated at the time of marriage and just kinda go and do it on a whim. That there was no reason to do it. Then we see people who get married as well where the relationship wasn’t consummated, and that’s one of the requirements as well. There’s a varieties of reasons why people get annulled.

Mr. Hofland: Yes. And at the time of the filing, we would file a complaint for divorce with the court and then also a complaint for annulment.

So you would go for the annulment. I mean, you’re trying to go for the annulment, the court disagrees with the annulment, you would still get divorced. So we file for a complaint for annulment and then in the alternative, divorce so that if the court doesn’t grant the annulment, you could still get divorced as well.

Mr. Hofland: Nevada’s a state where there is not a cooling off period. It only requires that you must be a resident of Nevada for at least a period of six weeks prior to the filing. If the other spouse agrees to the terms of the divorce, which you can do it through an uncontested divorce, we’ve gotten people divorced within filing the paperwork within three days. So you can do it very quickly.

Mr. Hofland: Yes. Three Days.

I’ve also seen it where it’s taken over a year and a half for people to get divorced because there’re issues over custody and there’s a large estate.

Mr. Hofland: In mediation for divorce you can mediate a couple of different things. Through the court system in Clark County, they offer family mediation services, and family mediation services is when you have children and you go through the program and it’s done without attorneys. It’s court mandated anytime that there’s custody at issue before the court issues the final order. They refer the parties off to mediation.

In the mediation process, the parties can work with a mediator without attorneys in which to establish a vacation, holiday schedule, or even a custodial schedule as well, which is a very good process here. We recommend that people use that process in which to discuss. And we’ve had a lot of success with that program.

As far as other mediation, sometimes through the court system there’s a senior judge mediation program, which we also utilize as a great tool. There’re some great senior judges in that process, which assist with making decisions or assisting with the parties in reaching agreements as to division of assets, alimony and child custody and other issues. The senior judges give their insight and input to resolve cases, in which they give answers to questions and give a form to people to give responses to questions to avoid the harsh penalties if they went to court on some issues, which they probably wouldn’t have succeeded on. So we recommend it. We use that program quite a bit.

Mr. Hofland: Well, we do our complaints for divorce differently than a lot of other attorneys. And the reason that we do so is that when we start with a case, we make sure that we have an understanding of these things, of what their position is in regards to assets, debts, alimony, child custody. We want to have a very good understanding with our clients so when we go into court, so somebody’s not tugging on our shoulder saying hey, Brad, what about these other things? Gosh, we’ve had these other things.

And we want to make sure that all those questions are answered at the beginning. We spend a lot of time at the beginning of our case prepping for the case at the outset. So we have an understanding what all their assets and debts are. And the way that we formulate our complaints is that we like to try to place all that information in the complaint so there’s an understanding as to what our client is looking for. And so the other side’s put on notice these are the things that we’re looking for. And it makes the case go a lot smoother, a lot easier.

And a lot of times we’ve done instances where we can take our complaint for divorce and just turn that and use that as the divorce decree.

I’ve seen it anywhere from a couple of pages, from three pages to twenty or thirty pages. But we do that on purpose to make sure that we’re protected and there’s an understanding. And we don’t like to hide the ball, so there’s a good resolution.

We do that as well to make sure that we save the client costs in the long run because all of the work is done upfront rather than doing it all the way through and then asking “What about this? What about this?” when we’ve already discussed it in the beginning. And it gives the clients a good sense that their attorney understands their case. That their attorney is on top of their issues and understands what their assets are and what they’re trying to accomplish.

Mr. Hofland: We get questions, frequent questions as to how much child support do I have to pay? Is the child support different if I have joint custody or if I have primary custody? What’s the division of assets? If I’ve got a pension plan, how much do I get in some of these pension plan 401Ks? If I receive money from a family member or from an inheritance during the marriage, do I have to share that money with the other spouse? How much alimony do I have to pay? And, you know, look, I’m in a bad place. What do I need to do here? I’m very upset, I don’t know what’s going on. We have these things. How am I gonna pay for these things later on? I love my children. I want to maintain a relationship with my children. What do I need to do? And I’m worried about myself being financially able to pay for things after the divorce is finalized.

We also see questions a lot of times, not only in the divorce situation, but like in child custody issues, about the modifications. We do a lot of modification issues. My former spouse or the father, mother of my child is doing these things. Gosh, what can I do? I don’t want my child exposed to these things. What can I do with the court? What can I present to the court? Can I terminate custody, their visitation? Can I modify the custody? We see that quite a bit.

Mr. Hofland: We see that about 30% of the time. I mean, the issues, which you have after a decree is entered, is going to be enforcement of the decree to make sure that someone’s paying the alimony, somebody’s divided the assets or the debts. We see those issues.

But then we see the other issues, which come when children are involved, we see a parent that wants to come back and modify the terms as to increase or decrease the visitation, their visitation time or the other person’s visitation time. We see that quite a bit – most likely a lot of it in the circumstance that one of the parties wants to relocate to another state. And then as the children are getting older.

So the court’s gonna look at those factors to make a determination whether or not that they’re going to grant a parent the opportunity to relocate to another state with the minor child. And they’re going to look at what’s better, what the relationship is that the child has with both parents, whether or not that child’s going to continue to have a relationship with both parents, what are the opportunities in another state? Is it a good reason that the parent wants to move to another state? Because each parent’s going to get into different relationships with different individuals, and those individuals may not be residents of the state of Nevada. So because of that, we see a lot of requests for relocations out of state.

Mr. Hofland: Yes and no. I mean, there are things that change as far as children, which are going to occur until the children reach the age of eighteen, until they emancipate as far as child support and childrearing issues. Yes, those things are normal and those things are going to occur.

But one of the things as far as having a good attorney is making sure that in the divorce decree that you’ve kind of already addressed a lot of those contingencies to make sure that your position’s protected.

One of the things you want to make sure is protected is when, “Gosh, I’ve got joint custody with our child. I don’t want the father or the mother moving out of state with our child because I want to continue to have a good relationship. And I believe that a good relationship is going to be a relationship when I see the child on a weekly or monthly basis.” So you want to protect those.

Then also, in regards to assets, that the decree lists out what your assets are and what the division is so you don’t have to come back into court and say, “Gosh, the decree omitted some of these assets. Look, later on I found out that he did own a house some other way, through his brother or sister.” But the decree lists those assets and those debts and those custodial relationships so later on when someone wants to modify those things, that you’re protected because your interests are placed in the decree.

It gives you the ability if one spouse has some assets, which they didn’t disclose, that you’re later on able to recover those assets because the decree specifically identifies what those assets are, what you’re awarded.