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 Nevada divorce.
- Child custody,
- Child visitation rights
- Child support,
- Spousal support (alimony), and
- Division of community property
But unlike in divorce, couples who legally separate still enjoy certain benefits of marriage in Nevada 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. The definition of “separate maintenance”
- 2. How legal separation is different from a divorce
- 3. Why get a legal separation instead of a divorce
- 4. When a spouse can bring an action for legal separation
- 5. What rights a court can decide in a separate maintenance action
- 6. Whether a decree of separate maintenance can be modified
- 7. How a spouse can enforce a decree of legal separation
- 8. Why hire an attorney?
Separate maintenance refers to a legal proceeding similar to a divorce. It allows a spouse to seek permanent child support and alimony without applying for a divorce.1
Some people refer to separate maintenance as a “legal separation.” However, Nevada law refers to the action as “separate maintenance.”
Unlike divorce or annulment in Nevada, separate maintenance does not dissolve a marriage.
Although the spouses may live apart from one another and date other people, they remain legally married.
(Note that married couples are allowed to live apart without getting legally separated or divorced. Couples who simply wish to live in different homes are not required to file any legal paperwork.)
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).
But sometimes spouses who have broken up wish to remain legally married so they can keep the legal benefits. 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 couples 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;
- So that the couple can file a joint tax return;
- Because the spouses practice a religion that forbids divorce; or
- Because the couple hopes they can patch up their 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 the couple is on decent terms and does not need court hearings to determine asset division. Couples can also employ a mediator to help them divide assets.
If a spouse has grounds for getting divorced, then that spouse has grounds to get legally separated. There is no situation where a couple is 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 the incompatibility of the spouses. But a spouse can also sue for divorce or legal separation when:
- The other spouse has been legally insane for at least two (2) years; or
- The spouses have lived apart for at least one (1) year
One situation where a spouse has grounds for legal separation (but not divorce) is when the other spouse has deserted the spouse bringing the action, and the desertion has continued for at least 90 days.2
Note that if one spouse files for a divorce but the other spouse wants only a legal separation, the court will likely grant a divorce. In general, both spouses 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 (visitation schedule),
- Child support,
- Spousal support (alimony), and
- The distribution of real property or personal property.3
The court may also order one spouse to pay:
- Temporary alimony while the legal separation action is pending, and
- The other spouse’s costs of maintaining the action.4
However, the court may not issue an order for support or a property division that is contrary to a valid Nevada premarital (prenuptial) agreement:
So if a prenup says that the couple waives their right to spousal support upon divorce, a court will not order spousal support upon legal separation. Or if a prenup says that the couple is keeping their 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 the couple never divorces.5
Just as with a divorce decree, a Nevada court may revoke or change a decree of separate maintenance.6
The most common reason for a changed order is that a spouse can no longer afford child support or alimony payments.
But the changed order will apply only to support payments not yet accrued. A spouse must pay any past-due support amounts at the original rate.7
Otherwise, the decree expires on the death of either the husband or wife.
A decree of separate maintenance is a legal judgment in Nevada. If either party breaks its terms, the other spouse can take that party to court to enforce the separation agreement.
The court can make a judgment for arrears, hold the disobedient spouse in contempt, and sentence the spouse to jail until he/she agrees to comply with the order. The court’s order can also be enforced through the seizure and sale of the spouse’s property.
A separate maintenance decree has the same legal force as a divorce decree. It can permanently decide the division of marital property and determine a spouse’s legal rights and obligations for years to come.
An experienced Las Vegas divorce 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 law firm for a 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.
- NRS 125.190. Action by spouse for permanent support and maintenance. When a person has any cause of action for divorce or when a person has been deserted and the desertion has continued for 90 days, the person may, without applying for a divorce, maintain in the district court an action against his or her spouse for permanent support and maintenance of himself or herself and their children.
- Same; Davidson v. Davidson, 382 P.3d 880, 132 Nev. Adv. Rep. 71 (2016)(“[T]he proceedings in a separate maintenance case must mirror divorce proceedings as much as possible[.]”).
- NRS 125.210 Powers of court respecting property and support of spouse and children. 1. Except as otherwise provided in subsection 2, in any action brought pursuant to NRS 125.190, the court may: (a) Assign and decree to either spouse the possession of any real or personal property of the other spouse; (b) Order or decree the payment of a fixed sum of money for the support of the other spouse and their children; (c) Provide that the payment of that money be secured upon real estate or other security, or make any other suitable provision; and (d) Determine the time and manner in which the payments must be made. 2. The court may not: (a) Assign and decree to either spouse the possession of any real or personal property of the other spouse; or (b) Order or decree the payment of a fixed sum of money for the support of the other spouse, if it is contrary to a premarital agreement between the spouses which is enforceable pursuant to chapter 123A of NRS.3. Unless the action is contrary to a premarital agreement between the parties which is enforceable pursuant to chapter 123A of NRS, in determining whether to award money for the support of a spouse or the amount of any award of money for the support of a spouse, the court shall not attach, levy or seize by or under any legal or equitable process, either before or after receipt by a veteran, any federal disability benefits awarded to a veteran for a service-connected disability pursuant to 38 U.S.C. §§ 1101 to 1151, inclusive. 4. Except as otherwise provided in chapter 130 of NRS, the court may change, modify or revoke its orders and decrees from time to time. 5. No order or decree is effective beyond the joint lives of the spouses.
NRS 125.230 Orders concerning custody, control and support of minor children; duties of court concerning social security numbers of parties.
1. The court in such actions may make such preliminary and final orders as it may deem proper for the custody, control and support of any minor child or children of the parties.
2. A court that enters an order pursuant to subsection 1 for the support of any minor child or children shall ensure that the social security numbers of the parties are provided to the Division of Welfare and Supportive Services of the Department of Health and Human Services.
- NRS 125.200 Power of court to require spouse to pay expenses of litigation and support. 1. Except as otherwise provided in subsection 2, during the pendency of an action brought pursuant to NRS 125.190, the court may, in its discretion, require either spouse to pay any money necessary for the prosecution of the action and for the support and maintenance of the other spouse and their children. 2. The court may not require either spouse to pay for the support or maintenance of the other spouse if it is contrary to a premarital agreement between the parties which is enforceable pursuant to chapter 123A of NRS.
- NRS 125.200 (2); NRS 125.210 (3).
- NRS 125.270 Installment judgments for support subject to modification as to installments not accrued. 1. In separate maintenance actions, installment judgments for support shall not be subject to modification as to accrued installments, but only as to installments not accrued at the time a motion for modification is filed. 2. The provisions of this section shall not preclude the parties from entering into a stipulation as to accrued installments prior to the time a motion for modification is filed.
- Same; see Pearson v. Pearson, 77 Nev. 76, 359 P.2d 386 (Nev. February 20, 1961)(“[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.”).