Legal separation in Nevada – formally referred to as separate maintenance – is a popular alternative to divorce. The court in a separate maintenance action can decide the same financial and family matters as in a divorce.
- Child custody,
- Child visitation rights
- Child support,
- Spousal support (alimony), and
- Division of community property
Though unlike in divorce, if you legally separate you can still enjoy certain benefits of marriage including:
- Sharing health insurance;
- Remaining entitled to federal survivor benefits under social security or the military; and
- Filing a joint tax return
To help you better understand legal separation / separate maintenance in Nevada, our Las Vegas family law attorneys provide general information below:
- 1. What is the definition of “separate maintenance” in Nevada?
- 2. How is legal separation different from divorce?
- 3. Why would you get a legal separation instead of a divorce?
- 4. What are the grounds for legal separation?
- 5. How does legal separation work in Nevada?
- 6. Can a decree of separate maintenance be modified?
- 7. How can I enforce a decree of legal separation?
- 8. How much does it cost to file for legal separation in Nevada?
- 9. Why hire an attorney?
Separate maintenance refers to a legal proceeding similar to a divorce. It allows you to seek permanent child support and alimony without applying for a divorce.1
Some people refer to separate maintenance as a
- “legal separation” or
- “formal separation.”
However, Nevada law refers to the action as “separate maintenance.”
Unlike divorce or annulment, separate maintenance does not dissolve your marriage.
Although you and your spouse may live apart from one another and date other people, you remain legally married.
You can agree to terms for an informal separation without getting courts involved at all. If you ever wish to formalize it, then you would petition the family court judge to make it an official court order – called a maintenance order.
Depending on the case, the judge may hold a hearing where your attorney can present evidence and examine witnesses. If the judge agrees the terms are fair and in your children’s best interest, the judge will sign off on it.
Once there is a formal maintenance order, you or your spouse could be held in contempt for violating it.2
Divorce and annulment terminate a marriage in the eyes of the law. Both decisions are permanent and cannot be undone (though a couple can always remarry).
Legal separation, in contrast, is a way for you to retain the benefits of marriage while being broken up. Also, separate maintenance is a less drastic decision than divorce and is more easily reversible. In this way, legal separation can serve as a trial divorce.
Specifically, some reasons you might desire a legal separation rather than a divorce include:
- To keep health care benefits or other insurance;
- To remain entitled to federal survivor benefits under social security or the military;
- To wait to sell the marital home until the housing market improves;
- To wait until any minor children are out of the home;
- So that you can file a joint tax return;
- Because you practice a religion that forbids divorce, or for other religious reasons; or
- Because you hope you can patch up your differences following a trial separation and not follow through with the divorce process.
In practice, legal separation tends to be cheaper to accomplish than divorce. This is especially true if you and your spouse are on decent terms and do not need court hearings to determine asset division. You can also employ a mediator to help you split assets.3
If you have grounds for getting divorced, then you have grounds to get legally separated. There is no situation where you are eligible for a divorce and not a legal separation.
Nevada is a no-fault divorce state. The most common reason for a divorce or legal separation is incompatibility. Though you can also sue for divorce or legal separation when:
- your spouse has been legally insane for at least two (2) years; or
- you and your spouse have lived apart for at least one (1) year
One situation where you have grounds for legal separation (but not divorce) is when
- your spouse has deserted you, and
- the desertion has continued for at least 90 days.4
Note that if you file for a divorce but your spouse wants only a legal separation, the court will likely grant a divorce. In general, you both need to want a legal separation for a judge to grant one.
The court may determine the same rights and obligations in a legal separation as in a Nevada divorce. These can include:
- Child custody,
- Child visitation rights and exchanges (including holiday visitation schedules),
- Child support,
- Spousal support (alimony),
- Credit card bill payments,
- Health care coverage,
- The distribution of real property or personal property, including vehicles.5
The court may also order you or your spouse to pay:
- Temporary alimony while the legal separation action is pending, and
- The other spouse’s costs of maintaining the action.6
However, the court may not issue an order for support or a property division that is contrary to a valid premarital (prenuptial) agreement:
So if a prenup says that you waive your right to spousal support upon divorce, a court will not order spousal support upon legal separation. Or if a prenup says that you are keeping your earnings during marriage as separate property, a court will not divide these earnings 50-50 upon legal separation.
In sum, any property and spousal support provisions that are made in a prenup will kick in during a legal separation – it makes no difference if you never divorce.7
Note that if you do go on to divorce, there is no guarantee the judge will continue the same child custody arrangement that the maintenance order calls for.
Though in practice, judges rarely make custody changes as long as the child is thriving and no other major changes have happened (such as a parent moving, etc.).
Just as with a divorce decree, a Nevada court may revoke or change a decree of separate maintenance during your legal separation.8
The most common reason for a changed order is that the paying spouse can no longer afford
- child support or
- alimony payments.
Note that the changed order will apply only to support payments not yet accrued. The paying spouse must pay any past-due support amounts at the original rate.9
Otherwise, the decree expires on the death of either you or your spouse.
A decree of separate maintenance is a legal judgment in Nevada. If your spouse breaks its terms, you can take them to court to enforce the separation agreement.
The court can
- make a judgment for arrears,
- hold your spouse in contempt for disobedience, and
- sentence your spouse to jail until they agree to comply with the order.
The court’s order can also be enforced through the seizure and sale of your spouse’s property.10
The fee for filing for legal separation varies by court. In Clark County, the cost is $259.11
A separate maintenance decree has the same legal force as a divorce decree. It can permanently decide the division of marital property and determine your legal rights and obligations for years to come.
An experienced Nevada divorce law attorney can help you protect your rights. Your lawyer can also help you determine whether a legal separation is your best option.
Considering a legal separation in Las Vegas? Call us for help…
Contact our Las Vegas, NV law firm for legal help and legal advice.
Our experienced Las Vegas divorce lawyers can help you determine whether a divorce, legal separation, or annulment is your best bet. We can also help you protect your rights and the rights of your children.
Our legal separation lawyers practice in Clark County and throughout Nevada.
- NRS 125.190.
- Same; Davidson v. Davidson (2016) 382 P.3d 880, 132 Nev. Adv. Rep. 71 (“[T]he proceedings in a separate maintenance case must mirror divorce proceedings as much as possible[.]”). See also Ludlow v. Ludlow (2014) 130 Nev. 1211.
- NRS 125.210. NRS 125.230.
- NRS 125.200.
- NRS 125.200 (2); NRS 125.210 (3).
- NRS 125.270.
- Same; see Pearson v. Pearson (1961) 77 Nev. 76, 359 P.2d 386 (“[U]nder the Nevada statute relating to actions for separate maintenance a wife cannot in such an action seek recovery of sums expended by her for past support of either herself or of the minor children of the parties, whether or not she would be entitled to entertain an independent action therefor.”).
- See, for example, Summers v. District Court, Second Dist. (1951) 68 Nev. 99.
- Separate Maintenance, Family Law Self-Help Center, Legal Aid Center of Southern Nevada.