How Property Division is Handled in a Nevada Divorce
Spouses must answer many questions during a divorce, but one of the biggest questions is, “Who gets what?” Nevada law governs property division in a divorce under statute NRS 125.150. Nevada is one of only nine states where it is presumed by law that property should be equally divided. That being said, the court must divide property in a manner that is fair and equitable.
It is always best for divorcing parties to try to negotiate the division of property between themselves, with or without the assistance of their respective attorneys and/or a mediator or settlement judge. Then a marital settlement agreement or divorce decree can be drafted. However, if a couple cannot reach a decision on the division of property upon divorce, the court will be left to make that determination. Before the court can determine what is a fair and equitable division of community property, it must first determine the nature of the property of the parties: Community property or separate property. There are steps that can be taken to ensure that property is not improperly disposed of by either party while the divorce is pending.
This article provides only basic information about how property is divided in Nevada divorce. It is not a substitute for consulting with a divorce lawyer. Only an experienced Nevada divorce attorney can give you legal advice about your situation.
Absent a prenuptial agreement, generally, community property is property acquired during the marriage by either or both spouses. In Nevada, the law presumes that community property will be distributed equally between the parties upon divorce. It is the net value of the community property that will be divided equally and not necessarily the actual division of each individual piece of property.
Marital property begins to accumulate at the start of the marriage and continues until the divorce. This is true even if the couple is separated, unless there is a separation agreement. A judge may only make an unequal distribution of community property when the judge determines that an equal distribution is not just or fair and equitable and the court has a compelling reason to distribute the property by other means.
Property purchased with separate property funds (not earnings) can maintain it’s separate character even if purchased during the marriage.
Retirement, pensions, 401(k)s, and IRAs are considered community property to the extent accumulated during the marriage. Each spouse will receive half of the other spouse’s retirement benefits that accrued during the marriage. in some case, a qualified domestic relations order is require to divide those assets.
The court will divide property held jointly by the parties in the same manner as community property. The court may reimburse a party for any separate property contribution the party made to the acquisition or improvement of the property held in joint tenancy or as community property. A contribution to joint property includes:
- A down payment for the property;
- A payment for the purchases or improvement of the property; and
- Payment made towards the principle of the loan used to finance the purchase or improvement of the jointly held property.
A contribution to joint property does not include:
- A payment towards the interest of the loan used to finance the purchase or improvement;
- A payment for maintenance;
- A payment for insurance; or
- Payments towards the taxes of the property.
A court determining whether a party will receive reimbursement for a contribution in whole or in part will consider:
- The intentions of the parties when placing the property in joint tenancy;
- The length of the marriage; and
- Any other factors the court deems to be relevant in making a just and equitable division of the property.
Separate property is the property of each spouse that was acquired before or after the marriage. Separate property is also designated as property acquired during the marriage by gift, inheritance, or the profit or rent gained from any such separate property. Personal injury awards can also be separate property. A personal injury award for pain and suffering is considered separate property, however, a personal injury award to cover property damage or loss of wages will be considered community property.
Separate property can become community property if the separate property is commingled with the community property. For example, if one spouse inherits money and deposits the inheritance into the couple’s joint bank account, which is used by both parties to pay household expenses and for day-to-day expenses then the court may determine that the inheritance is indistinguishable from the community property. Once separate property has been determined to be commingled then the property becomes community property through a process known as transmutation. The party claiming an asset as separate has the burden of proving that the asset is separate property.
Debts and Liabilities
The court must also divide among the parties the debts and liabilities accumulated during the marriage. Debts and liabilities, as with property, will first be divided into community debt, separate debt, and joint debt. The court will decide this by determining:
- When it was acquired;
- Who acquired it; and
- How it was used.
Property Value Assessment
Once the property is divided into community property and separate property then each piece of property must have a value placed on it before distribution can take place. Monetary assets such as cash can be easily divided, however, the family home, cars, and the parties’ tangible personal property cannot be simply cut in half and distributed. If the parties cannot agree on the value of each piece of property then the property will be appraised to determine the fair market value of the property. The fair market value of the home, vehicle, or personal item will be used when the court makes the distribution.
After the property is divided into community and separate property and the value of the property has been determined the court will distribute the property among the parties. The court may also take alimony and child support into consideration when making property determinations.
The Finish Line
Once a settlement agreement is reached or the court has determined the “Who gets what?” question it is important to take the necessary steps to properly transfer all the property. Finally, each party must get the other party to sign any deeds, stock transfers, or other forms to transfer the property into the appropriate parties’ name. Also, each party must make any necessary payments to the other party and refinance any property if necessary.
Dividing property during a divorce can be a daunting task, but a necessary one. Getting through this step means moving one step closer to a new chapter.
Educate Yourself with Our Guide to Nevada Divorce
Divorce is a serious decision, and we understand how stressful and uncertain the time leading up to your divorce can be. That’s why we’ve provided free answers to your most pressing Nevada divorce questions in “A Guide to Nevada Divorce”.