Family Law
Family Law
Willis is very familiar with the Family Court system and has appeared before every currently sitting family court judge. Willis is very knowledgeable in this area of the law. He has an undeniable grasp of all the relevant case law in this area. Through his unique and creative way of thinking, he can apply the case law to your situation no matter how outlandish you think your situation is. Willis has successfully litigated well over 500 Family Law cases, and because of this, Willis has become very knowledgeable and passionate in this area of the law. Bowden-Boyatt Law PLLC is reasonably priced and offers its clients many different payment options, which will alleviate your concerns about whether you can afford to hire an attorney to fight for your rights! Bowden-Boyatt Law PLLC is also understanding of your situation no matter how outlandish you may feel it to be, and through Willis’ undeniable candor he will be very transparent about the state of your case and whether you are being reasonable or unreasonable. Bowden-Boyatt Law PLLC is currently litigating Family Law cases in the Eighth and Eleventh Judicial District Courts. His current cases include the issues of: Visitation Rights, Custody modification, Child Support Modification, Paternity Establishment, Arcella Analysis (School Choice), Relocation, Divorce, Asset Division, Debt Division, Alimony, Child Therapy and Interviews, Teenage Discretion, Divorce and child custody cases where Domestic violence and child abuse is a factor, name changes. Willis is confident and prepared to help you no matter how unique you believe your case is.
Divorce
Divorce: is the legal process of ending a marriage, which can involve deciding how property will be divided, making arrangements for child custody and support, and granting alimony. There are two ways to file for divorce in Nevada:
- Filing together: If both spouses agree on everything in their case, they can File For Divorce Together by filing a “joint petition for divorce.” These divorces are typically approved quickly, and the parties usually do not have to have a hearing with a judge. The benefit of these types of divorces is that there is way less heartache, they are cheaper, and they can be obtained relatively quickly.
- Filing alone: If spouses cannot agree on all the terms of the divorce, one spouse can File For Divorce Separately by filing a “complaint for divorce.” The person who files for divorce is the “plaintiff,” and the other spouse is the “defendant.” The plaintiff’s complaint for divorce will list what the plaintiff would like out of the divorce, and the Defendant can Respond to the Divorce by filing an “answer and counterclaim” stating what he or she wants out of the divorce.
Willis’, through his candor and unmatched knowledge in this area of law, can help you understand the complexities of the divorce process and can help you decide which type of divorce is for you.
Child Custody/Paternity
Child Custody/Paternity: In Nevada, the critical concept regarding child custody and visitation rights is “the best interest of the child.” There are two types of custody in Nevada, “legal custody” which deals with who has the right and responsibility to make parenting decisions, and “physical custody”, which deals with whose custody the child will physically be placed. There are three types of “physical custody,” Joint Physical Custody where the parents typically share the child equally or 50% of the time (although there are times when a parent may have the child more than 50% of the time and still share joint physical custody with the other parent), Primary Physical Custody which is where one parent has the children the majority of the time and has more responsibility than the other party in taking care of the children. Usually, in situations where one parent has primary physical custody of a child, one parent has primary time with the child, and the other parent has visitation rights unless otherwise specified by the Court. Finally, Sole custody is where one parent has the exclusive right to have physical and legal custody of the children. This basically means that the parent with sole custody doesn’t have to discuss with the other parent before making any decisions related to the children. In a sole custody situation, the children live only with the custodial parent. The custodial parent will have the right and the sole responsibility to make all the decisions for the children, which includes decisions such as religion, medical care, and education. Please don’t get too excited, however, as sole custody is rarely awarded because Nevada judges believe that it is in the children’s best interest to have both parents involved in their lives. Contrary to popular belief, there is no automatic preference in favor of either parent concerning legal or physical custody.
Child custody issues are involved in many cases at family court. A court must address paternity, child custody, visitation, child support, and other child-related matters whenever parents file a court case. When parents are married, these issues are handled as part of a divorce, separation, or annulment. When parents are unmarried, these issues are addressed as part of a custody or paternity case. Recently, the Nevada legislator has voted that all custody cases are sealed, meaning these cases are no longer public record.
While child custody may seem straightforward at first, it becomes very stressful and challenging to manage when you add issues of Relocation, School Choice, third-party rights, custody modifications, determining custodial timeshare, and calculating child support.
Paternity may be established in a legal action brought by a natural person or the State. An action for paternity can be brought at almost any time, but if it is filed before the child’s birth, it will be stayed until after the birth (with certain exceptions like for service of process and taking depositions). Notably, a paternity action cannot be brought before a court three years after the child reaches the age of eighteen. Where paternity gets confusing is that specific facts create a legal presumption (a legal presumption is a fact that a court will adopt as true, often shifting the responsibility of the other party denying that belief to prove it is untrue) that a man is the natural father of a child. The most common presumptions are (i) marriage to the mother, (ii) cohabitation with the mother for at least six months before and through the period of conception, and (iii) a genetic (“DNA”) tests showing a probability of 99 percent or more that a man is the father. Presumptions may be rebutted by clear and convincing evidence (or proving the presumed fact is untrue by 85% to 90% certainty.
It is essential to note that a mother of a child born out of wedlock has primary custody of the child by statute (See NRS126.031) if no judgment of paternity or custody order has been entered.
A father of a child born out of wedlock has primary physical custody of the child if the mother has abandoned the child to the father’s custody and the father has provided sole care and custody of the child in her absence.
As you can see, there is a lot to know, no worries because Willis, through his candor, experience, knowledge, and dedication, can help you understand the complexities and nuisances of child custody and paternity and can help you navigate through this complicated and stressful process.
Child Support, Health Insurance & Medical
Child Support, Health Insurance & Medical: There are several financial orders included with a custody order, such as child support, insurance requirements, and payment of medical expenses. Child support is based on a percentage of the parents’ “gross monthly income.” Gross monthly income includes pre-tax income from all sources, including but not limited to employment salary, tips, overtime, unemployment, and retirement, income earned from social media monetization, etc. A common misconception regarding child support is that many people believe that if you share joint physical custody of a child or children, child support is off the table. This is incorrect. Each parent will have to provide the judge and the other parent with a financial statement, paystubs, and possibly prior tax returns so each parent’s income can be determined.
Child support can be difficult, heart-wrenching, extremely stressful, scary, and depressing, especially when you add the threat of jail time, wage garnishment, driver’s license, and passport suspension, etc., to the mix. This is why you need to hire Willis because, through his candor, knowledge, and experience, he can help you navigate through this difficult time and protect your rights.
Annulments
Annulments: We’ve all made mistakes. The great thing is Willis can help you get out of yours. Like a divorce, an annulment is a court procedure that dissolves or ends a marriage. An annulment is different from a divorce in that an annulment treats the marriage like it never happened. Contrary to popular belief, Nevada Judges do not liberally grant annulments, and there are specific grounds one must meet to have their marriage annulled.
An annulment is based on any of the reasons below:
The Spouses are Closely Related
Those who are close-blood relatives are not allowed to marry. In Nevada, parties cannot be related any closer than second cousins or cousins of the half-blood to marry. If the spouses are related in this regard, the marriage is considered “void ab initio,” which is a fancy Latin word for it was invalid from the start.
One Person Was Already Married
If one of the spouses was already married at the time the parties attempted to marry, this kind of marriage is considered “void ab initio,”
Lack of Parental Consent
Typically, a person must be 18 years old or older to get married, there is one caveat to this general rule in that those age 17 can get married if they have at least one parent’s consent and a judge’s consent to marry.
Nonetheless, the marriage can be annulled if a minor gets married without these required consents. Of course, nothing in the law is as easy as it seems, and if a minor gets married without the required consents, the marriage cannot be annulled once the person reaches the age of 18 if the person is willingly living with the spouse as a married couple, and an annulment based on these grounds must be filed within one year of the person turning 18.
Want of Understanding
If one of the spouses did not understand what they were doing at the time of the marriage to the point they were incapable of agreeing to the marriage, the marriage may be annulled for “want of understanding.” Many people remember Brittany Spears’s 55-hour marriage to Jason Alexander. Well, this was the exact grounds under which her annulment was granted. Many individuals use this ground if they are so intoxicated to the point that they lacked understanding of what they were doing (not to say that this was Brittany Spears’ situation). In any event, anyone using this as a reason for an annulment must prove this to the judge by “clear and satisfactory” evidence, which may involve witnesses testifying, and other evidence supporting your claim of want of understanding, if this matter were to head to trial.
A marriage can also be annulled if one of the spouses was insane at the time of the marriage but has now regained sanity. However, if the parties continue willingly living together as a married couple after sanity is restored, the marriage cannot be annulled.
Fraud
If either of the spouses committed fraud on the other to get them to agree to the marriage, the marriage may be annulled. “Fraud” is typically where one person intentionally lied about something they knew was important to the other person in order to convince the person to marry them. Think if I knew then what I know now, would you have married them? Once again, it is not always that easy, and the lie must be so serious that if the other person knew the truth, the other person would never have gone through with the marriage. Fraud can be difficult to prove and almost always results in an evidentiary hearing, especially if the other party denies the fraud. Things get even more complicated if the spouse learns about the fraud and continues to live with the other spouse as a married couple willingly; in this instance, the marriage cannot be annulled.
Anyone using this as a reason for annulment must prove the fraud to the judge by “clear and convincing” evidence, which is a much harder standard to meet than “clear and satisfactory” evidence.
A common misconception with annulments is that the length of the marriage matters. As evident from the grounds above, the length of a marriage is not a reason for an annulment, although it can be relevant to proving one of the grounds above.
Some people still think divorce carries a stigma, so they would rather have their marriage annulled than get a divorce. Willis, through his candor, knowledge, and dedication, can help you decide if an annulment is right for you.
Separate Maintenance (more commonly known as “legal separation”)
Sometimes couples want to separate but do not want to divorce. Notably, a separate maintenance case addresses all the same issues involved in a divorce, except the parties do not actually get divorced. This means that at the end of the legal separation process, the parties will have final custody orders support orders, and property and debts will be divided, just like a divorce. However, the parties will still be legally married, although they may not be responsible for the other spouse’s debts that they may incur after the “Decree of Separate Maintenance” is finalized.
For the reasons stated above, if you are thinking about getting “legally separated,” it’s sometimes best to just go through with the actual divorce, as you have to do all the same things as if you filed for divorce. However, there are many reasons why some people prefer a “legal separation” instead of a divorce, and the most common reasons are:
- Religious reasons
- Not ready to go through a divorce
- To keep medical benefits
A separation does not stop either spouse from asking for a divorce in the future. However, a new divorce case will need to be filed. If the parties no longer wish to be legally separated, then a separate document must be filed lifting the Decree of Separate Maintenace. Willis, through his candor, knowledge, and dedication, can help you decide if a Decree of Separate Maintenance (“legal separation”) is right for you.
Same/Sex Marriage and Divorce
Sometimes couples want to separate but do not want to divorce. Notably, a separate maintenance case addresses all the same issues involved in a divorce, except the parties do not actually get divorced. This means that at the end of the legal separation process, the parties will have final custody orders support orders, and property and debts will be divided, just like a divorce. However, the parties will still be legally married, although they may not be responsible for the other spouse’s debts that they may incur after the “Decree of Separate Maintenance” is finalized.
For the reasons stated above, if you are thinking about getting “legally separated,” it’s sometimes best to just go through with the actual divorce, as you have to do all the same things as if you filed for divorce. However, there are many reasons why some people prefer a “legal separation” instead of a divorce, and the most common reasons are:
- Religious reasons
- Not ready to go through a divorce
- To keep medical benefits
A separation does not stop either spouse from asking for a divorce in the future. However, a new divorce case will need to be filed. If the parties no longer wish to be legally separated, then a separate document must be filed lifting the Decree of Separate Maintenace. Willis, through his candor, knowledge, and dedication, can help you decide if a Decree of Separate Maintenance (“legal separation”) is right for you.
Guardianships
You might be considering whether or not a guardianship is appropriate in your case. Typically, Guardianships arise when an adult cannot care for themselves due to age, incapacity, disability, etc. Guardianships also occur when a child’s parents cannot care for the child. Guardianships can be very difficult and time-consuming, as they require the filing of certain documents annually, depending on the type of guardianship. If specific steps are not followed when establishing a Guardianship (like failing to serve all interested parties), a Judge could deny your request to be appointed as a person’s legal guardian. Furthermore, if certain documents or motions are not filed before you act on behalf of the individual in need of the Guardship, this could have devastating results, like being judicially removed as the guardian. Willis, through his candor, knowledge, and dedication, can help you navigate the guardianship of your loved one.
Temporary Protection Orders (“TPO”): A protection order tells someone to stay away from you for safety reasons. TPOs are meant to guard against domestic violence, harassment or stalking, workplace harassment, sexual assault (rape), or child abuse. A TPO is typically granted for up to 45 days, and you will be required to petition the Court if you wish to extend the length of the TPO. TPOs become difficult because you have to know what Court to file in. Willis, through his candor, knowledge, and dedication, can help you navigate through this scary time and will vigorously fight for you during your TPO hearing.
Termination of Parental Rights (“TPR”): termination of parental rights has been referred to as “the civil death penalty” by the Nevada Supreme Court, and therefore it should not be taken lightly. Nevada has a specific court process for termination of parental rights. Further, in Nevada, a petition requesting the termination of parental rights may be filed by a parent, guardian, or other family member. A Petition can also be filed by a child welfare agency (Department of Family Services), a probation officer, or another person who may also file a petition. TPRs may be voluntary if both parents agree on terminating one biological parent’s rights, or the petition may be “contested” if a parent does not wish to have their rights terminated.
Pursuant to the Nevada Revised Statutes chapter 128 and case law, the Court must apply a two (2) part test to determine whether a request should be granted. The two-part test begins with determining whether the child’s best interest will be served by terminating a parent(s) parental rights. When a Nevada Court determines termination is in the child’s best interest, the Court must then determine whether parental fault exists warranting a termination of parental rights. The grounds for parental fault are set in Nevada Revised Statute 125.105, which are as follows:
- Abandonment of the child
- Neglect of the child
- Unfitness of the parent
- Failure of parental adjustment
- Risk of serious physical, mental, or emotional injury to the child if he were returned to, or remains in, the home of his parent or parents
- Only token efforts by the parent or parents:
- To support or communicate with the child
- To prevent the neglect of the child
- To avoid being an unfit parent; or
- To eliminate the risk of serious physical, mental, or emotional injury to the child; or
- With respect to termination of the parental rights of one parent, the abandonment by that parent.
Ultimately, if the Court determines it is in the best interest to terminate parental rights and one (1) ground for parental fault exists, the Court may grant the request for termination. TPRs in Nevada require an attorney with experience. Willis, through his candor, experience, knowledge, and dedication, can help ensure that your rights are protected during this difficult time and can help you navigate this complex process.
Adoption
Nevada law allows for the adoption of both children and adults. Adoption of a child cuts off all family ties to the natural parents’ other relatives (i.e., grandparents, etc.) unless those relatives had specific court-ordered rights established before the adoption was ordered. Any purported agreement between the natural and adoptive parents is only enforceable if those agreements are expressly set out in the adoption decree.
Any individual adult, or any two married individuals, who are at least ten years older than the person sought to be adopted may petition to adopt a child. In the state of Nevada, both biological parents must consent to an adoption unless they are dead, adjudged insane, or their rights have been terminated. Consent to adoption is irrevocable upon signing. If the child to be adopted is over the age of 14 years, the child must also consent. Written permission for adoption by a birth mother must not be made until at least 72 hours after the birth of the child sought to be adopted. Nevada statutes provide for a home study to be completed by the Division of Child and Family Services or a licensed adoption agency, but it can be waived if a petitioner or the spouse of the petitioner is related to the child within the third degree of consanguinity (i.e. Spouse – Children – Parents (first degree), Brothers/Sisters
– Half-Brothers/Half-Sisters – Grandchildren – Grandparents (second degree) Uncles/Aunts – Nephews/Nieces – Great-Grandparents – Great-Grandchildren (third degree)). NRS 127.160 outlines the Rights and duties of adopted children and adoptive parents.
For adult adoptions, Nevada statutes require that any adult person may adopt another adult person younger than themselves by an agreement of adoption approved by a Decree of Adoption. No consent from a parent or agency is required for an adult adoption, but consent is required from any spouse of both the adopting party and the adopted party if married. Adoption is one of the most joyous occasions in family law. However, the adoption process can be stressful and challenging to navigate without an attorney. Willis, through his candor, experience, knowledge, and dedication, can help ensure that the adoption process is seamless, releasing you from any stress during this joyous occasion.
Property Distribution: Nevada is a community property state with a presumption of equal division upon divorce. That presumption can only be overcome for “compelling reason,” such as the financial misconduct of wasting or secreting assets during the divorce or the loss, destruction, or unauthorized gifts of community property.
Typically, the general rule in Nevada is that all property acquired after marriage by either spouse (regardless of how it is titled) is considered community property. Spouses are considered to have a “present, existing, and equal” interest in all community property, including the other spouse’s income. Anything acquired before the marriage is typically considered that spouse’s separate property. Of course, when dealing with the law, there are many exceptions to these general rules, and the distribution of community and separate property is no easy feat that, if not done correctly, can have devasting results on you as you prepare to embark on your new future. It is crucial that you hire an attorney who understands how the laws of Nevada impact the division of property and assets. Willis, through his candor, knowledge, dedication, passion, and preparation, can help you navigate this extremely hard and stressful process and will aggressively fight for your rights.
Pre-nuptial and Post-Nuptial Agreements
A Pre-nuptial Agreement, or Premarital Agreement, is a contract between two people planning to get married. Pre-nuptial Agreements are used by future spouses to protect assets and to simplify common issues the couple may face in the event of a divorce. Pre-nuptial Agreements lay out how property is divided and how support is determined in the event of divorce. They can also address each spouse’s rights and obligations in separate or marital property, distribution of assets, entitlement to alimony, and each spouse’s rights to death benefits from the other’s life insurance policy.
A Post-nuptial Agreement is a written contract signed by spouses after marriage. The terms of a Post-nuptial Agreement dictate how a couple’s assets will be divided in the event of divorce. The Post-nuptial Agreement may address how the couple’s separate and joint property, acquired before or after the marriage, will be divided. It may also state how the couple’s debt will be divided. In certain circumstances, the Post-nuptial Agreement may also
contain provisions for spousal support. It may also be used to protect a spouse’s business interests in the event of a divorce. Importantly, in Nevada, a spouse may not use a Post- nuptial Agreement to limit their obligation to provide alimony. Such a limitation may only be made in a Pre-nuptial Agreement. A common misconception about pre-and post-nuptial agreements is that many people believe they can limit the amount of child support they may be subject to. Such provisions are not enforceable.
While Pre-nuptial and Post Nuptial Agreements might seem straightforward, issues arise when one is trying to enforce a Pre-nuptial and Post Nuptial Agreement or have a Pre-nuptial and Post Nuptial Agreement thrown out or have specific provisions of a Pre-nuptial and Post Nuptial Agreement stricken. This becomes even more difficult when a Pre-nuptial and Post Nuptial Agreement is poorly drafted.
NRS 123.070 requires marriage contracts to be (i) in writing and (ii) executed and acknowledged in the same manner as a transfer of title to real estate. Thus, while spouses may verbally agree, a post-nuptial agreement is not likely to be enforceable in Court unless it is in writing and properly executed.
A premarital agreement is not enforceable if the party who is fighting against its validity/enforceability proves that it was (i) not executed voluntarily, (ii) was “unconscionable” (unconscionable in layman’s terms means without a conscience; deceitful; so unfair or unjust that it shocks the conscience) when executed, or (iii) if that party did not receive a fair and reasonable disclosure of the property or financial obligations of the other party (or waive that right, knowingly, in writing).
Willis, through his candor, knowledge, dedication, and attention to detail, can help you draft and/or enforce and or fight the validity of a Pre-nuptial or Post-nuptial agreement.
Alimony/Spousal Support
Alimony in Nevada is based on one spouse’s need (the broke spouse) and the other spouse’s ability to pay (the spouse with the money). There are four basic kinds of alimony or spousal support that might be awarded in a divorce case. First, there is “temporary spousal support,” which is awarded under NRS 125.040 and refers to an award of alimony/spousal support from one spouse to another during a divorce action as “temporary maintenance.” This allows the financially disadvantaged spouse (the broke spouse) to be on equal footing with the economically advantaged spouse (the spouse with the money).
The other three types of alimony concern post-divorce payments from one spouse to the other, payable either in lump sum or periodic installments (monthly payments). “Permanent” alimony is alimony for which there is no termination date or event specified (other than the death of a party or, usually, re-marriage of the recipient). “Rehabilitative” alimony is found explicitly in NRS 125.150(8) and is support for the purpose of allowing the economically disadvantaged spouse (the broke spouse) to obtain training or education relating to a job, career, or profession. Typically, Nevada courts, when deciding whether to
grant rehabilitative alimony, must specifically consider whether the spouse who would pay such alimony (the spouse with the money) has obtained greater job skills or education during the marriage and whether the spouse who would receive such alimony (the broke spouse) provided financial support while the other spouse obtained job skills or education.
Other than rehabilitative alimony, there is no legislative guidance or alimony formula (like you see with child support) for when alimony is appropriate or how much should be paid. Notably, the only statute in this regard is found in NRS 125.150(1), which states that an alimony award should be “just and equitable.” Notably, the Nevada Legislature codified (meaning the Nevada legislator came up with a statute) laying out 11 “guideline factors” extracted directly from Nevada Supreme Court decisions, which a district court is required to “consider” in awarding alimony (keep in mind a Nevada is not required to “consider” all of these factors, and a court has discretion on what factor to give more weight to). These factors include and can be found in NRS 125.150(9):
- The financial condition of each spouse.
- The nature and value of the respective property of each spouse.
- The contribution of each spouse to any property held by the spouses pursuant to section 123.030 of the Nevada Revised Statutes.
- The duration of marriage.
- The income, earning capacity, age, and health of each spouse.
- The standard of living during the marriage.
- The career before the marriage of the spouse who would receive the alimony.
- The existence of specialized education or training or the level of marketable skills attained by each spouse during the marriage.
- The contribution of either spouse as homemaker.
- The award of property granted by the Court in the divorce, other than child support and alimony, to the spouse who would receive the alimony.
- The physical and mental condition of each party as it relates to the financial condition, health, and ability to work of that spouse.
Alimony is very important to individuals after a divorce, as it sets the foundation for a newly divorced spouse’s descent into their new life. Many attorneys will tell you that Alimony cannot be calculated, which is incorrect, as a plethora of case law shows what the Court has actually ordered concerning alimony in various scenarios. Therefore, hiring an attorney who understands this and is willing to fight for your right to receive alimony is essential. Willis, through his candor, knowledge of the law and applicable cases, dedication, and passion, can help you fight for the alimony you deserve.
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