How to Handle Holidays in a Divorce

5 years old boy sits in front of the fireplace and is sad with Christmas gifts.

By Rayna Brachmann, Esq.

For lots of parents, while many things about divorce are extremely difficult, one of the most heart wrenching is the thought of spending holidays apart from their children.  There is no way around it, being away from children on the holidays can be heartbreaking.  Unfortunately, for most people going through a divorce, it is a reality.  While some lucky families are able to reach a place where they share holidays together with their children, the majority of divorced families divide the holidays and the children transition between parents’ homes.

There is no one “right” way to design a holiday schedule.  What works for some families will not work for others.  Some families prefer to exchange children on major holidays so that children spend time with both parents on the holiday.  Other families agree to alternate holidays so that one parent has Thanksgiving while the other has Christmas, with the holidays flipped the following year.

Many parents cannot abide the idea of not seeing their children on Christmas and agree that one parent will have Christmas Eve until late that evening, with the other parent having the children from late on Christmas Eve and waking up on Christmas morning in that parent’s home.  Some families add another exchange in the afternoon on Christmas Day for Christmas dinner.  While parents are free to agree on a schedule like this, as a family lawyer, I don’t recommend a holiday schedule structured in this way.  First, multiple exchanges in a short time period are difficult for children, and place stress on everyone during an already stressful period of time.  Children of divorce often reflect that this type of schedule puts them in a position where they cannot relax and enjoy Christmas with one parent because they feel (real or perceived) pressure to hurry up and get to the other parent’s celebration.  Smaller children will often want to stay and play with the new toys and gifts they get at one parent’s home rather than packing up and heading to the other’s parent’s home.  This can cause unnecessary pressure and make difficult transitions more so, even though no parent intends this when they agree on this type of schedule.

An additional issue many parents don’t consider at the time of divorce is what happens in the future when one or the other parent has a new partner.  What if the new partner has family out of town?  Or likes to travel for the holiday?  A split Christmas schedule ensures that a divorced parent will never be able to take their children to Disneyland or another family celebration out of town unless they have an agreeable former spouse or give up their holiday with their children.

Clients always get to decide for themselves what holiday schedule works best for them.  However, I recommend that parents not split holidays and instead alternate major holidays.  So if Dad has Thanksgiving this year, then Mom gets Christmas and Christmas Eve.  In 2020, Mom has Thanksgiving and Dad has Christmas and Christmas Eve.

There is no magic to December 25th.  If children celebrate Christmas with one parent on the actual calendar day, that does not diminish their special holiday celebration with the other parent on December 28th.  I often tell clients children don’t generally know if one parent has an extra day or two of time with one parent here and there.  But they definitely do know if Mom and Dad are constantly battling about every minute of time the other parent has with the children.  They will pick up on conflict between parents far more than they will feel slighted by a second Christmas a few days after the calendar designated holiday.

5 Important Things to Do Before Informing Your Spouse You Want a Divorce

Busy woman trying to work while babysitting two kids

By: Melissa L. Exline, Esq.

The assumption is that you have fully evaluated your emotional state and you are sure, 100%, that you want a divorce.  If that is the case, and you know this is something you have on the horizon, it is better to take some steps before you actually have the very hard and realistic discussion about the fact that, yes, indeed, you are seeking a divorce.  These 5 things being done in advance can make a difference or prevent issues from cropping up in the divorce process:

1. Learn About the Ways to Get a Divorce:

You will want to know your options.  This requires you having an understanding about yourself and your soon-to-be-ex-spouse.  If you have the ability to get along, and you can agree that you don’t want to burn the marital estate down while trying to divorce (after all, that only makes lawyers more money and costs you money), then there are other ways.  This could include pre-litigation negotiation, mediation, or collaborative divorce to get you to a joint agreement before you even come close to the courthouse steps.  If, on the other hand, there is very little chance for amicable discussions, or a “grown up” way of handling things, then you may be forced into litigation in order to protect yourself.  The key here is doing some research online or attending a local workshop on divorce.

2. Know What You Have and What You Owe:

It comes up regularly – oh, that cash that was in the safe – it’s gone, and it has been gone for years (or so claims one spouse over the protests of the other).  Rather than relying on what you each think you know, go through the safe and have evidence of what is in there.  Take pictures, make copies of financial records (or download them all onto a thumb drive or other method of taking the information) and generally have an understanding of what is included in both the martial estate and the potential separate property claims of each side.  If you have debts, be aware of how extensive this is (i.e. tax debts, car payments, credit cards and 401(k) loans, to name just a few).  Make a detailed list and have the records to back this up for every asset and every debt for items in either party’s name and joint accounts.  Know which accounts are joint or not as well.  Indeed, a nice spreadsheet given to your lawyer is always a welcome organizational tool.

3. Think About What Custody Should Look Like:

First, be aware, in Nevada, the best parent is “both parents.” As such, sharing the custody 50/50 is the typical starting point unless there are significant issues.  Wanting more time, or even feeling like you have a decent case for more time, is often not enough.  There are a lot of sample schedules online to give you an idea on how to share your time with the children.  You must be ready for push back on your ideal choice and listen to the input of the other parent on why one schedule might not be as workable as you first thought.  Having a plan A and then be willing to go to plan B or even C, can make a world of difference.

4. Make a Budget:

Based on where you will be living, you need to make a plan on how much it will cost you to live.  This is extremely important and one of the things lawyers often spend time with clients going over.  If you have explored this in advance, it will save you money and time.  How much does your new house or apartment cost?  What is the deposit to get in?  Can you make it? Do you have enough for living there with your car payment, food expenses, insurance, utilities, phones, etc.?  Download a basic budget and have these numbers ready.  Bring this with you to your first meeting with your lawyer and have documents in your hands that back up the likely expenses you noted in your budget.

5. Consult an Experienced Family Law Attorney:

It helps to have a plan and discuss things that you think might come up after you inform your spouse that you want a divorce.  The attorney can make suggestions and go over things you find worrisome.  Moreover, the attorney can address things with you that you might have missed when doing steps 1-5 above.  Do research on your lawyer options and it cannot hurt to meet with more than one.  It can seem expensive but having a good fit with your personality is important in this process and rushing in with the first name suggested to you could be something that does not work for you down the road.  Overall, get good advice on your financial situation and custody options and explore your child support or alimony options.  Having information helps you make better decisions.

If you are looking at telling your spouse you want a divorce, don’t just jump right in and hope all the information gathering works out after-the-fact.  This is a big deal.  Your children’s lives and your financial well-being are at stake.  Take some time to make sure you are prepared before jumping head-first into the deep waters of divorce.

Co-Parenting From Separate Homes

I love you, dad! Handsome young man at home with his little cute girl. Happy Father's Day!

By Rayna Brachmann, Esq.

Every parent going through a divorce worries about the impact it will have on their children.  And with good reason.  Divorce is difficult for everyone in the family, and for the children of divorce, they are without control and the impact of the changing family dynamics can be magnified as a consequence.  Every parent going through a divorce wishes to do what they can to minimize the impact and disruption on their children.  Unfortunately, many parents, despite their best intentions, simply are unable to act consistently in their children’s best interests.  Particularly when the divorce is ongoing and the dynamic between parents is negative.

One of the best things divorcing parents can do is work as hard as humanly possible to remain on the same page with the other parent, despite the divorce.  When parents are able to present a united front to their children on parenting issues, despite their interpersonal differences, the impacts of divorce on their children are lessened.   Not eliminated, but less damaging to their children.  And because parents love their children enormously, this is a gift of love a divorcing parent can give to their children.

Concrete examples include reinforcing discipline in both homes.  If a child loses a privilege in one home, the other parent should also restrict that privilege.  If a child has lost the use of his phone in mom’s house for two weeks, the two weeks should be continuous, and dad should also restrict phone access on his custodial time.  If dad has decided that a new driver is restricted from accessing the car because the child broke driving safety rules, mom should also ensure the child doesn’t drive during mom’s custodial time.  This type of united front among parents with their children will make a child’s transition between homes easier and less jarring and will also prevent a child from seeing one parent as the hero while the other is the enforcer.  This type of co-parenting requires a concerted, ongoing effort by both parents, which can be challenging.  But it pays dividends over time and children will have less opportunity to play parents or households against one another.  This is of particular significance as children becomes teenagers and test boundaries more as they try to define themselves in opposition to their parents.  If parents remain on the same team as far as parenting goes, the children will be less likely to have opportunities to exploit the differences between their parents and will be better adjusted despite their parents’ divorce.

What Our Clients Say

Hi Rayna,

Thank you so much for everything. I so appreciated your professionalism and skill–and also your compassion. I know you have so many cases going on right now, but I always felt I had your full attention, that you were fully present with me, and your empathy really bore me up through the whole horrible ordeal. Not to mention you’re just a straight badass at your job: I never felt anything but confident at every step of the process that I was getting the best advice and advocacy.

And Heather, too–thank you so much for going back and forth with me on spreadsheets and drafts and getting all of the innumerable pages of paperwork organized and taken care of in a timely and thorough way. These are skills I don’t have, and I’m so glad you do.

It is of course impossible for a divorce like mine to be a pleasant experience. But I do feel like I kept my dignity through it, and I do feel like I have hope. And you’re both significantly to credit for that.


– L.O.

Nevada Child Support Law is Fundamentally Changing

Paper family with Child Support letters and money

By Melissa Exline

After significant amounts of work from the Committee to Review Child Support Guidelines, Nevada law is about to change significantly when it comes to calculating child support.  This is just a general overview to brace those of you out there who are interested in this topic and more details will trickle out as we wrap our arms around these changes.  But, first, after the changes make their way through the governmental process, the location where the law will be is going to change.  Look for the law in Chapter 425 of the Nevada Administrative Code.  This was done to allow more flexibility to make subsequent changes to Nevada’s child support law in the future.  The goal is to allow the law to be modified down the road without the complexity and hurdles that impact modifying the Nevada Revised Statutes (i.e. sausage making at its best in Nevada’s biennial legislature).

The highlights of the changes are as follows:

Gross Income is undergoing a broad revamp as to how it is defined.  This will include such things as alimony, interest from investment income, periodic payments from pensions and retirement, and unemployment proceeds, in addition to the normal salary and wages (among a host of other terms).  Some of this was included in income before, but the statutory definition was less than a model of clarity under NRS 125B.070.  Under the new definition expected to become law in the near future (the date is still “up in the air” at this juncture), there is a more expansive list, which further includes “undistributed income of a business entity in which a party has an ownership interest…”  There will be specific defined assets/income streams that are specifically excluded from “gross income” as well, i.e. child support received.

The Court will be required to consider the costs of childcare paid by either or both parties and make an equitable division.

The child support order must include a provision specifying that medical support is required to be provided and include the details related to that support (with the law addressing what is an accessible plan of coverage and what is a reasonable cost).

Once gross income is determined, the child support percentages per child will be changing to what is referred to here as a “tiered” system, for lack of a better word.  There will be a percentage applicable for the first $6,000 per month of the paying party’s gross income, another for the amount above $6,000 but equal to or less than $10,000, and the last tier for monthly gross income greater than $10,000.  The percentage will depend on the number of children at issue, which was like NRS 125B.070, but the NAC language staggers this for the income levels.

  1. Nevada Child SupportFor one child
    • For the first $6,000 – 16 percent of such income;
    • Greater than $6,000 and equal to or less than $10,000 – 8 percent of such a portion;
    • For any portion that is greater than $10,000 – 4 percent of such a portion.
  2. For two children:
    • For the first $6,000 – 22 percent of such income;
    • Greater than $6,000 and equal to or less than $10,000 – 11 percent of such a portion;
    • For any portion that is greater than $10,000 – 6 percent of such a portion.
  3. For three children:
    • For the first $6,000 – 26 percent of such income;
    • Greater than $6,000 and equal to or less than $10,000 – 13 percent of such a portion;
    • For any portion that is greater than $10,000 – 6 percent of such a portion.
  4. For four children:
    • For the first $6,000 – 28 percent of such income;
    • Greater than $6,000 and equal to or less than $10,000 – 14 percent of such a portion;
    • For any portion that is greater than $10,000 – 7 percent of such a portion.
  5. For each additional child:
    • For the first $6,000 – an additional 2 percent of such income;
    • Greater than $6,000 and equal to or less than $10,000 – an additional 1 percent of such a portion;
    • For any portion that is greater than $10,000 – an additional 0.5 percent of such a portion.

Child support is going down for parents earning $6,000 per month or less from the existing statute.  For example, NRS 125B.070 required 18% paid for one child of the paying party’s gross monthly income.  This will change to 16%, at least for those earning $6,000 per month or less.  For those in the higher income brackets (i.e. six figure incomes and up), expect child support to be much higher. Nevada Presumptive Maximum Amounts or “caps” per child are going away.

More updates on the specifics of this law are going to be rolled out and explained in more detail.  Stand by for when the law actually takes effect.  Because the legal changes are so significant, more than one blog will be necessary just to keep the reading down to a reasonable level!

Can You Write Your Spouse Out of Your Will or Trust?

last will and testament form with gavel, shallow dof

By Melissa Exline

On more than on occasion, I have had a client ask if they can change their estate planning documents such that their Husband or Wife does not inherit anything should the client die while a divorce is pending.  Is this allowed?  This can come up during a divorce when emotions are running high. Sometimes, the parties have an agreement that this is their plan – even if everything between the spouses is fine.  However, the issue is not so simple.  One person is not permitted to completely “write out” their spouse.  A premarital agreement mandating a different situation or agreement by the spouses during the marriage as a post-nuptial agreement would allow for a distribution to someone other than the spouse.

What does the law say in Nevada about what must be left to a spouse?  NRS 123.250 states that upon the death of either husband or wife, an undivided one-half interest in the community property is the property of the surviving spouse.  So, this means a person that desires not to leave property to a surviving spouse is permitted to dispose of his or her separate property and his or her one-half share of the community property.  This provision does not apply to community property with right of survivorship and there are other limitations.

Generally, when there is a divorce pending, there is also the normal financial restraining order language that will bar a party from changing beneficiaries.  In Washoe County, this would include an order with language which states the following:

(1) mutually restrains the parties from transferring, encumbering, hypothecating, concealing or in any way disposing of any property, real or personal, whether community or separate, except in the usual course of business or for the necessities of life;

(2)  mutually restrains the parties from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance coverage, including life, health, automobile, and disability coverage;

(3) mutually restrains the parties from cashing, borrowing against, canceling, transferring, disposing of retirement benefits or pension plans for the benefit (or election for benefit) of the parties or their minor child or children.

If an order is issued with this language, it arguably precludes any “disposal” of property by Will or Trust in a way that would exclude the spouse.  It is not clear this language can bar someone from disposing of what is permitted under NRS 123.250.  If a party opted to change his or her Will or Trust to give his or her separate property and one-half interest in community proper to someone other than a spouse, the restraining order may not apply to bar this from happening.  If you want to write your spouse “out” then it is important this is done with some thought and planning – otherwise, if done improperly, the intent to cut out the spouse would not survive a fight in court.

Who is a “Good Enough” Parent?

Little girl waiting for dad to swim until he works

By Rayna Brachmann, Esq.

This is a nearly impossible question to answer, yet family court judges are tasked with this query regularly.  Judges have to assess the best interest of children routinely, and in termination of parental rights cases, have to decide whether a parent has been so lax in their parenting duties as to have what the law refers to as the “civil death penalty” imposed and have their parental rights terminated so a child can be made available for adoption.

This article is an interesting perspective from a psychologist who evaluates parents and makes recommendations to family courts regarding whether their rights to their children should be terminated.

It was particularly noteworthy to consider the observation that different classes have different parenting expectations and parents with more money have more latitude when it comes to correcting their children.  The level of scrutiny on a wealthier parent is less than that on a parent who struggles with poverty.

There are no easy answers regarding terminating a parent’s parental rights.  On the other hand, children languishing for extended periods of time in foster care is also not reasonable for the children.  Psychologists do have standardized criteria when making recommendations to Family Courts regarding the bond between a parent and child, but there is no doubt that subjective criteria can and does impact recommendations made to the court regarding whether a parent can rectify the circumstances which brought the matter before the court.  In cases with a skilled attorney, those biases can be addressed on cross examination, but many cases like this do not involve counsel, and the job facing judges is even more challenging as a consequence.

Parenting in the Age of Legal Marijuana

students having a nice time on school ground in front of minors

By Rayna Brachmann, Esq.

Nevada legalized marijuana for both medical and recreational use in July, 2018.  Marijuana dispensaries are easy to find in the cities and acceptance of marijuana use appears to be growing.  This can add complications both for parties in custody disputes, and parents struggling to figure out how to address marijuana with their teenage children.

It was these issues that lead me to this article written by a pediatrician about marijuana use in teens and others, and the medical implications of same.  This is a distinct issue from how marijuana use can impact a custody dispute between parents.  However, it is relevant for anyone dealing with the Family Court system to be aware of.

From a medical perspective, it appears clear that exposure to marijuana among adolescents and children has demonstrated negative impacts.  This includes exposure to secondhand marijuana smoke.  Medical literature reflects that the younger a person is who uses marijuana, the more likely they are to experience detrimental impacts.

While the article linked here addresses how parents may address marijuana use by their children, it is a helpful resource for parents who choose to use marijuana whether for a medical issue, or recreationally.  A parent who uses marijuana may convey a sense of acceptance to children who are then more likely to use marijuana themselves.  Given the medical literature demonstrating negative implications for marijuana use in younger people, that should give all parents pause to consider.

Yes, marijuana is legal in Nevada.  It is my experience with Judges that when the issue of a parent’s legal use of marijuana comes up in court, the Judge tends to assess the judgment of the parent using the marijuana when determining what impact, if any, it has on their parenting abilities and the children.  From a legal perspective, that is appropriate.  Judges should not punish behavior that is legal in Nevada.  Unless that behavior negatively impacts a child, marijuana use by a parent is largely deemed to be a non-issue in most legal contexts in Nevada.  However, any parent who uses marijuana and is involved in a custody dispute should be very mindful of the impacts of their own use of marijuana on a child’s attitude about marijuana.  To the extent that a parent is casual in their marijuana use, and a child believes that marijuana experimentation is similarly not a big deal, given the medical literature on this issue, a strong argument could be made that the marijuana using parent is not acting in the best interest of the children.  When custody is in dispute, I would advise my clients to think very carefully about their use of marijuana to avoid creating an argument for the other parent that the marijuana use is not in the best interest of a child.

Your Judge and Your Case

By Travis Clark, Esq.

Judges are people.  No kidding.  However, sometimes it is easy to forget that when we are in the throes of a divorce or custody battle.  It is easy to chremamorph (attribute the qualities of an inanimate object to a human) a Judge. “The Judge is an automaton!”   It is easy to believe “they have it so good” and “they do not know what I am going through.”  Nevertheless, and as hard to believe as it may be, Judges have lives like you and I, they have gone through divorce, custody battles and paid alimony.  They know all too well what the parties feel when we enter their courtroom.

Knowing your Judge, their judicial philosophies, their work history and any bias they may exhibit, is integral to your case.  A Judge sitting in Department 35, might have a different take on alimony than the Judge sitting in Department 19.  Being prepared for your Judge and their legal analysis in your matter can change the outcome.

Now, while it would make every attorney’s day if we were able to choose the Department and Judge we wanted, we cannot.  The ability to choose your jurisdiction, court, department and judge is not permitted.  It is called “Forum Shopping.”  The idea of forum shopping is that a litigant could stack the deck in his or her favor by getting the right Judge and venue.

Every lawyer is trained in law school that the law attempts to “even the playing field” with respect to litigants.  If a plaintiff were able to stack the cards in their favor, then incentive would be created for folks to race to the courthouse to file a complaint or petition for a family matter.  Since we want to discourage, rather than encourage litigation, legislatures enact laws the prevent forum shopping and judges enforce laws to prevent the same.

There is a very narrow field of exceptions to this rule.  The first exception is what is commonly referred to as your “right to preemption.”  Once a litigant is assigned to a department, the party has a limited amount of time to lodge a request to preempt the Judge or Department they were assigned to.  In Washoe County, there is a cost to this.  It is currently $450 to preempt the Judge that you were assigned to.  However, if you find yourself in a Judge’s department that you know will be bad for your case, preemption may be your remedy, to “re-roll the dice.”  To be clear, you do not get to choose your next Judge and Court, only that you get one right to say: “Not this Department.”

So where does this leave us?  How do we learn the idiosyncrasies of the Judge we were assigned?  Unfortunately, there is no substitute for experience.  Those experienced in the law are able to provide legal advice on the nuances of a particular Judge and Court.  While some areas of law do not require attorney representation, Family law is replete with pitfalls for the unknowing or unwary.

Collaborative Divorce – An Amicable Divorce is Possible

By: Melissa L. Exline, Esq.

Divorce:  Can it be amicable?

I looked up synonyms for “Amicable” and saw “Polite” and “Cordial”.  Hmmmmm, is it possible for divorcing couples to have disagreements about dividing their lives and do so in a way that is less destructive – polite even?  Do you value that idea?  Would you prefer a more cordial exchange where everyone is acting “like an adult” so-to-speak?

As a divorce lawyer, I have personally witnessed how destructive divorce can be and how utterly traumatized my clients are when the litigation process plays out fully.  I’ve had my own client say to me “burn it to the ground!”  (It was a moment of sadness and frustration – but no, we don’t want that).  My goal as a lawyer is never to destroy what is there – it is to salvage your interest, get more, take care of you and put you on track to turn the page so the next phase of your life has a shot at financially security, better relationships and, dare I say it, happiness.

For this reason, collaborative divorce speaks to me.  I want to bring my clients a better way – an amicable way.  People divorce for a host of reasons.  It is not always the lying cheater that caused destruction – easy to hate.  Sometimes, it is two reasonable people (likeable even) that don’t align as parents or as partners.  Sometimes people have suffered from depression or someone struggles with addiction.  Money problems. Family interference.  Life.

So, I am here to say, yes, you can have an amicable divorce.  If you are thinking of divorce and ready to say it to your spouse – I suggest you also say how you want it to go.  Say out loud that you hope that it can be respectful, cordial or polite.  Also, find a lawyer trained in the collaborative model.  You can tell by looking at their advertising and website.  Are they telling you they are “aggressive,” or do they offer mediation and collaborative divorce?  Look at the approach that lawyer takes and do a bit of research.  It can set the stage for how the process will play out.

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