One of the biggest financial assets in any divorce is the marital home. Even if you purchased the house before the marriage, the house (or at least a part of its value) may still be considered marital or “community” property. Deciding what you want to do with your house involves examining your finances to decide what makes the most sense. If, for example, you have significant credit card debts from the marriage that you’d like to pay off, it may make sense to sell the house to liquidate those unsecured debts. If the real estate market is going up and you have enough cash or cash and other assets to give your spouse for his or her share of the property, you might want to hold on to the home. In all cases, it is always best to consider all of the tax and financial consequences of all your options by consulting both an attorney and a tax expert.

Common Solutions For Dealing With the Marital Home:

Does one Spouse or the Other Want the House?

To determine whether or not to sell the house or keep it, first ask yourself if you really want the house? The marital house comes with all the memories of your past life up until this point. If the memories are no issues, can you afford to make the mortgage payments including the of repairs and maintenance on your salary alone?

Sell the House

To decide if it makes good financial sense to sell, it makes sense to find out how much the house is worth and how much equity you have. You might also want to consider other factors in the housing market. Are property values going up or down, and has this been steady over the last few years?

You can hire a professional appraiser to value the house, or have one or more competent local Realtors do a Sales Valuation based upon what similar houses are selling for in your area. If you hire a professional appraiser, you should decide beforehand how to pay for the costs of the appraisal. Will each person hire their own appraiser — obviously more expensive — and arrive at a number in the middle somewhere, or will you hire one appraiser and split the fees? When deciding whether or not to sell, you can also ask yourself:

• How easy will the house be to sell?
• What is the market like?
• Will you come out ahead if you decide to wait a while before selling?
• Can you and your spouse agree on a selling price?
• Are other houses in the area selling quickly?
• If you have to make major repairs, will you be able to handle the cost & stress?
• What is the potential “bottom line” equity check going to look like?
• How much will realtor fees, taxes, and other costs be?
• Would capital gains taxes apply to your situation?
• How much equity will you be left with – the “bottom line?”
• How long it would take to sell?
• How will the net proceeds be split when it does sell?
• Who will actually sell the house? One or both spouses, or a realtor?
• When will you sell?

One Spouse Keeps the House and Buys Out the Other’s Share

Half the value of the house could be purchased with cash; with a mix of cash and marital assets; or with a mix of cash, marital assets and extended cash payments made over a specified length of time.

If you go this route, you need to determine how much each spouse’s interest in the home is worth. You may or may not necessarily decide to split your interest in the property 50/50, depending on your circumstances. For example, if the home was owned by one spouse prior to the marriage that spouse may have a more significantly financial stake. This is where an attorney and possibly an accountant should be involved in establishing an equitable number that will be fair to both parties

One spouse attempting to keep the home can get even more complex. Keep in mind that there are other financial and tax consequences not so obvious. For instance, if one spouse will be keeping the house, the other might want to take their name off the mortgage loan. However, if they do this, the remaining person might be in a pinch to re-qualify. If they choose to leave their name on the original mortgage it may then affect them and make it more difficult for them to obtain a loan should they decide to purchase another house. If the spouse keeping the home with your name remaining on the original mortgage gets into difficulties and cannot make the payments the creditors can come after you. Upshot? – There are a lot of details to consider.

One Spouse is Granted Exclusive Use for a Specified Period of Time

After some time limit is up, it is agreed that the house will be sold.

Such a situation might be a good choice if one spouse wants to stay in the home, especially if that spouse had custody of the children, and there are not enough marital assets for one spouse to buy the other’s interest out. Or maybe selling the house right now, because of the housing market or other compelling reason, it is not in the best interest of both for any myriad of reasons.

This arrangement is often the most difficult arrangement, requiring the most amount of amicable cooperation. If you go this route, both of you will be joint owners for a period of time. The spouse not living in the home still has an interest in the property, so he or she will most likely be concerned about how the other spouse is keeping up the property which can be a potential source for future conflict. If you are looking to sever all ties from the marriage, you should avoid this option. If you are going to consider this option, we recommend making decisions up front regarding how the property will be split when it is sold. It is best to create a written agreement – even if some of the terms are speculative and subject to change at the time of sale. We suggest this strongly and suggest you consider:

• Will you value it at the time of the divorce or at the time of sale?
• What if the home greatly increases in value?
• What if the increase is solely due to one spouse’s separate improvements to the property?
• Who pays the mortgage and repairs during the exclusive use period?
• Will that spouse receive credit for their mortgage payments?
• Will the exclusive use terminate upon remarriage or cohabitation of the spouse living in the house?

The 4 options above are the most common ways that a home is dealt with during / after a divorce. Each option will have different effects on your both your financial and emotional life. You should strongly consider any tax benefits and consequences of selling versus keeping the home.

Whatever you decide, when you have a Family Law Attorney from Greenberg & Nguyen on your side, the complex details of any of these options can be worked out, appraisers brought in, the tax and financial consequences worked through, and any necessary agreements drafted to protect you.

Spiteful and Vindictive Spouse?

Some divorces involve uncontrolled emotions resulting in cruel behavior.  A divorce attorney who is experienced the Nevada divorce laws can set in place a restraining order, if needed, and can also ensure that destruction of personal property is prevented and that domestic violence is reported to the proper authorities.  In most cases when a spouse is vindictive the situation won’t get better.  Know your rights.

Understanding Nevada Divorce Laws

A divorce attorney will prepare and file the paperwork required to start the proceeding and complete the divorce in district court.  The attorney will notify the party once the defendant has been served and the court posts a hearing date and time.  Divorce settlement conditions will vary from case to case, it’s imperative that a divorce attorney knowledgeable in Nevada divorce laws represent the filing party or plaintiff.  Unresolved settlement agreements by either party leaves the court to make decisions based on information and reports filed during the proceedings.  The interest and well-being of children will always be a priority for the courts. Child support and custody are critical factors to approving divorce decrees. Nevada divorce laws have guidelines to determine the amount of child support and allow the court to deviate from the guidelines in certain limited circumstances.  Spousal support is also court ordered on a case by case basis.

Being Served Legal Papers Can be Traumatic

If you are fortunate enough to make it through life without ever being served legal papers, you are doing something right!  There was a bumper sticker craze years ago – the stickers read: “S__t Happens.”  Well, from a Lawyer’s vantage point:  ”Life Happens!”

People are served papers every day for unpaid debts, dog bites, minor car accidents, failure to pay rent, divorce, the list is  l-o-n-g…, if not endless.

The legal act of delivering a court filing to a person is called “personal service.”  You might have heard someone say they have been “served with papers” – it is the exact same thing. Frankly, it can often be be embarrassing and traumatic depending on where and when the Sheriff’s Deputy or private process server found you and served with some kind of court filing. Chances are you will have some sleepless nights where your mind wrestles with the service and your anger at the formality of pulling you into a public legal battle where others – strangers for the most part – are butting into your private life and threatening you, possibly your freedom, certainly your finances and your sense of personal security and well-being.

The Legal Papers you Were Served With will Have the Following:

The papers will:

• Name of the court where the case is pending
• The type: Summons, Complaint, Subpoena, and Discovery Request
• The names of the parties, (e.g., John Doe vs. Jane Doe)
• The case number
• Some kind of certification that you were served (e.g., in person, by mail, etc.)
• Instructions for answering the complaint or a form to fill out.
• Tell you when the court date is or date requiring an “answer”
• A list of allegations, which constitutes the complaint. The paper may or may not be titled “Complaint”

Moreover, oftentimes there is some kind of correspondence, either from an attorney to the court clerk or to the other party. If you have been served personally, the letter might be addressed to you personally.

What You Should Do If Served Legal Papers

Because virtually ALL legal papers that are served contain a deadline, you should take immediate action.  More specifically, you should contact an attorney. Most attorneys, including our office, offer a no-cost consultation about virtually any legal matter that you might be facing. Doesn’t it make good sense to find out all there is to know about your options?

If the filing directs you to be somewhere or do something, you must do so, and to procrastinate or ignore the situation is asking for big trouble. It is just not worth it! If you fail to act, to answer the complaint, or to appear as directed, you could be found in contempt of court and a bench warrant issued for your arrest. Moreover, what might be a simple matter of answering and having the situation “go away” might —if you do NOTHING— cause you to sacrifice any defense you might have had and an unfair or unjust legal judgment could be entered against you. Please don’t put your head in the sand. Take immediate steps to protect yourself. We have had clients come to see us for a free consultation, who entered our offices on the verge of a panic attack — totally stressed out, and left completely calm and relieved as we have agreed to answer the complaint and handle the ENTIRE problem on their behalf.  They likely went home and had their first restful night’s sleep since the papers were served.

Upshot? – Don’t freak out. Personal service is a very important process that does have legal significance, but it won’t affect your ability to live your life, for the most part.  Being served with a Complaint doesn’t mean the whole world will be caving in on you; doesn’t mean you’re guilty of anything, necessarily. Being served is just the formal way that our society and legal system functions as you are notified that a lawsuit has been filed against you. Again, receiving a Subpoena, alone, doesn’t mean you have necessarily done anything wrong. All it means is you’ve been ordered to show up at a court-related proceeding, perhaps provide some documents, or something that someone’s legal case requires to move forward – with little or no potential harm to you.

Most Family Law attorneys get the occasional phone call from the client who claims that their divorce is going to be simple and want the attorney to represent both sides. Unfortunately, there are two fundamental problems with this idea.

First, there is no such thing as a “simple” divorce. Ending a marriage is complicated.

Second, one attorney can never represent two parties in a divorce. According to Nevada Rules of Professional Conduct 1.7, a lawyer “Shall not represent a client if the representation of that client will be directly adverse to another client.” There is simply no practical way to complete a divorce where the parties are not at odds with one another.

There are some simple and cost-effective, non-adversarial approaches for resolving a divorce which are recognized in all states of the union: mediation and collaborative law. These two processes fall under the heading of “Alternative Dispute Resolution: and may be a more practical and certainly less-costly solution for the non-adversarial divorce.

Mediation - Divorce Mediation is pretty straight forward. Essentially, a third party, “the mediator,” is a person who helps facilitate communication. This usually happens in a daylong event where everyone is present in one building. The mediator sits with each spouse privately and has the opportunity to go back and forth between the spouses (who are usually separately represented by their own attorney).

The mediator’s job is to gain insight into what is driving the dispute and the reason why each person is taking a particular position. The mediator works with the both spouses until the dispute is resolved or there is an impasse. Obviously, mediation has the added expense of a third party facilitator (the mediator), but this cost is downright cheap compared to the price to have one’s dispute resolved by a judge in open court.

Collaborative Law – Collaborative divorce is a process in which you and your spouse negotiate an acceptable agreement with legal assistance from your respective collaborative attorney. You and your spouse each hire a separate attorney who advises and assists you in negotiating a settlement agreement – usually in one sitting in one day unless there are lots of property and custodial issues and little initial agreement. You meet separately with your own attorney and then the four of you meet together should it be necessary. A collaborative divorce may also involve other professionals, such as a child custody specialist, therapist, tax professional or an accountant. Normally, both spouses and their attorneys sign an agreement that requires the attorneys to withdraw from the case if a settlement is not reached and then the case goes to court. It is almost always better to reach a settlement outside of the courtroom where the judge, who doesn’t know you, or care about you (or you and your children) – and will then make decisions for you.

During the holiday seasons many spouses who have split up begin the “fight” regarding who gets the kids, for how long and when.

In Nevada, if you have a court ordered holiday schedule, the holiday schedule will supersede your regular schedule. Most courts define kids “holidays” as the day the children are released from school until the day they return to school at the conclusion of the break from school.

If you don’t have a visitation agreement that specifies the holiday schedule (and some Family law Attorneys might suggest that you don’t make a written agreement), here are some tips to help you through the holiday season with as little stress and fighting as possible:

1. Be Willing to Compromise. Its rare that you will get both Thanksgiving and Christmas.
2. Make Plans for Yourself. If you don’t have Thanksgiving this year, you will have it next year. Make Thanksgiving plans and enjoy it yourself – whatever you do, don’t give your kids a guilt trip, they should be able to spend time with their other parent without having to feel guilty.
3. More than one holiday celebration is not a bad thing. What kid is going to complain about having two (2) Christmases?
4. Don’t agree in writing to share the holidays. Why? You never know what is going to happen in the future. What happens if your circumstances change dramatically and your new wife/husband won’t understand why they have to have your ex-wife/ex-husband at their Thanksgiving dinner. When you put the holiday schedule in writing, you are stuck with that indefinitely.
5. Don’t make holiday assumptions. If you are planning on travelling for a holiday and there is no agreement as to who gets the kid (s) on that holiday this year, make sure you speak with your the other parent before booking flights or hotel rooms. Never assume that the holiday is yours. Obviously, you will have better success at getting a particular holiday if you speak with the other parent first and ask them whether you can have the kids.
6. Plan ahead for holidays. The sooner you can come to an agreement about the current year’s holiday schedule, the smoother the holidays will go.
7. Create new holiday traditions. Creating new traditions with your children to make the holiday season special is a great idea. Life is not going to be the same once you and your spouse split, but that doesn’t mean you can’t create new and meaningful traditions.