Separations can be simple and agreeable for both parties, but this is not always the case. When a couple cannot agree on the terms of their separation, they will need to get legal help since Nevada views separations as legal issues.
Call us at 702-766-6671 to schedule a consultation with a Las Vegas separation attorney.
Trial Separation vs. Legal Separation
A trial separation is when spouses stop living as a married couple without filing for a separation or divorce. Legal separation (also called Separate Maintenance in Nevada) occurs when a couple files a Separate Maintenance Agreement with the court. A Separation Maintenance Agreement protects the couple’s rights and covers alimony, child custody, child support, and the division of property and debt.
Divorce vs. Legal Separation
In Nevada family court, a legal separation is treated like a divorce, except that the couple cannot remarry while legally separated. At least one of the parties to the separation must have been a Nevada resident for at least six weeks before filing for separation and must be planning to become a permanent resident of Nevada.
Reasons for choosing legal separation over divorce include:
- The couple isn’t ready for divorce or believes a reconciliation might be possible
- The couple has minor children and prefers to wait until the children are adults before finalizing a divorce
- Tax, insurance, or other financial reasons
- Religious reasons
If there are no compelling reasons for a legal separation, it might make more sense to divorce rather than add the extra step of separation. If you are considering a divorce or separation, call the Las Vegas separation attorneys at the McFarling Law Group for a consultation to help you determine the right course of action.
If a married couple is considering taking a break, but there is no compelling reason for a divorce, a legal separation will protect each party from any debts incurred by their spouse during the separation, whether or not it ends in divorce. An additional benefit of a legal separation is that new property acquired after the separation will be separate property if the separation leads to divorce.
A crucial distinction between legal separation and divorce is that a legal separation is reversible if the couple chooses to remain together. Divorce is permanent. Of course, a divorced couple can remarry if they decide to get back together.
How Does Separation Work?
Any Las Vegas separation attorney will tell you Nevada is a no-fault divorce state. This means that the filing spouse does not have to state a reason for the divorce. Incompatibility and irreconcilable differences can be sufficient reasons for a divorce. The same is true for legal separation in Nevada.
Acceptable reasons to file for legal separation include:
- Either spouse has been legally insane for two years or more
- The couple has spent at least a year living apart
- Either spouse deserted or abandoned the other more than 90 days before the filing
For situations that might change in favor of maintaining the marriage (a legally insane spouse recovers; the couple move in together; the deserting spouse returns), a legal separation is preferable to divorce.
Legal separation is processed through the Nevada family court systems through the following process:
- One partner files a complaint with the court
- The other party responds to the complaint within 20 days
- The court schedules a case management conference
- At the conference, the issues are determined and the trial date is set
- The discovery process begins 30 days after the complaint is served
- The Separate Maintenance Agreement is negotiated
- At the trial, the court will review the Separate Maintenance Agreement and grant the separation, with or without amendments to the Separate Maintenance Agreement
Child custody and support issues are heard separately, as are financial matters.
A legal separation does not have to be a mutually agreed-upon decision. Either spouse can file for a legal separation, with or without the consent of the other party. If the other party fails to respond to the complaint, the separation can be granted by default. If, on the other hand, the other party objects to the separation and prefers a divorce, the court is likely to grant the divorce over the legal separation.
Negotiating a Separation Maintenance Agreement
If there is a valid prenuptial agreement in place, legal separation triggers the prenuptial agreement, whether or not the couple divorces. The terms of the Separate Maintenance Agreement must reflect the terms of the prenuptial agreement. For example, if the couple agrees to a specific income split in their prenuptial agreement, the court will not approve a Separate Maintenance Agreement with an income split that is different.
Nevada has a standardized schedule for calculating child support payments. If a Separation Maintenance Agreement includes child support terms, those terms must be compatible with Nevada’s child support rules.
If the family includes children, the Separation Maintenance Agreement must include child custody and visitation terms. Any such terms must be reviewed and approved by the court.
A legal separation can be the first step to divorce. If the legal separation documents are drafted correctly, the divorce can be finalized without significant litigation. A Nevada family court judge will have to review and approve any Separation Maintenance Agreements, so it’s best to contact a Las Vegas legal separation lawyer to negotiate and draft the legal separation document on your behalf.
McFarling Law Group has a team of experienced Las Vegas separation lawyers who can help you with your case.
Modifying a Separation Maintenance Agreement
A Separation Maintenance Agreement can be modified if there are changes in the circumstances of either party. For example, if a spouse cannot afford the child support or alimony payments, the court can reduce the amounts for future payments. Payments owed before the modification of the agreement remain at the amount set in the original Separation Maintenance Agreement.
Enforcing a Separation Maintenance Agreement
The Separation Maintenance Agreement is a legally-binding document. Either party can sue the other if they violate the terms of the agreement. The court can apply several methods to collect the other party’s fair share, from judgment for arrears to seizing and selling the other spouse’s property.
If you are in the separation or divorce process and want to protect yourself and your family, call our Las Vegas separation law firm at 702-766-6671. McFarling Law Group will help you build a strong case to protect your assets and ensure a fair separation.