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.

Kimberly Surratt and Melissa Exline Recognized as Legal Elite!

On Jun 1, 2019, Nevada Business Magazine announced The Silver State’s Top Attorneys for 2019, the “Legal Elite.”  Surratt Law Practice had two attorneys recognized, Kimberly Surratt and Melissa Exline.  This recognition is coveted because the votes are made by our peers with 5,000 nominations submitted by licensed attorneys in Nevada.  Only the top 3 percent of attorneys in the State of Nevada make it to the Legal Elite list.

original article from Nevada Business Magazine:

Legal Elite 2019
The Silver State’s Top Attorneys

Now in it’s twelfth year, Legal Elite is an annual list showcasing Nevada’s top attorneys as chosen by their peers. The attorneys appearing in the following lists represent the best of the best. Polling for Legal Elite 2019 began in mid-February and nearly 5,000 nominations were submitted by licensed attorneys in Nevada. Each submission then went through an extensive verification process resulting in the top attorneys in the state, chosen by their peers and presented in the following pages.

The State Bar of Nevada’s Annual Report for 2018 indicates that there are over 9,000 active member attorneys in Nevada and new attorneys are being trained every year at UNLV’s Boyd School of Law each year.

The Legal Elite list includes only the top 3 percent of attorneys in the state broken down by location. In addition, Legal Elite includes special lists ranking Nevada’s best “Up and Coming” and best government attorneys.

It’s not easy for an attorney to make it on to the final list. Each nominee went through several levels of verification and scrutiny before being approved to appear on this list.

Upon the nomination process closing, each ballot was individually reviewed for eligibility and every voting attorney was verified with the State Bar of Nevada. Once a vote was verified, each nominee was then scored based on the number and type of votes received. Attorneys that garnered votes from within their own firm were given a score of one and those that received a vote from someone at another firm were given a weighted score of three. After scores were tabulated, the top vote getters were verified again and contacted to finalize the 2019 Legal Elite list.

Those that received the most votes in the North, South and Best Up and Coming lists are featured on the cover of this issue. Featured are Chelsea Latino with McDonald Carano from the Northern Nevada list, R. Duane Frizell with Frizell Law Firm from the Southern Nevada list and Collin Jayne from Marquis Aurbach Coffing from the Best Up and Coming list.

Congratulations to all of the distinguished attorneys featured among the 2019 Legal Elite.

State Insurance for Surrogates Bill Passes Thanks to Local Attorney Kimberly Surratt

Focus on pregnant woman touching her belly. Happy married couple are sitting on sofa and embracing on background. Surrogacy concept

Kimberly Surratt, Northern Nevada, Reno surrogate lawyerInsurance companies in Nevada can no longer discriminate against a woman for acting as a gestational carrier (aka surrogate) when it comes to health insurance.  In the 2019 Nevada Legislative Session, Kimberly Surratt requested a bill to prevent insurance companies from discriminating against surrogates.  Assemblywoman Bea Duran (Democrat, Las Vegas) sheparded AB 472 through the legislative process and worked to ensure its passage.  The bill received significant support from the Nevada Justice Association, the Nevada Association of Health Plans and the Nevada State Medical Association.

The bill passed both houses of the Legislature unanimously.  The new law is effective January 1, 2020.  The new law provides that an insurer offering or issuing health insurance in Nevada including coverage for maternity care shall not deny, limit or seek reimbursement for maternity care because the insured is acting as a gestational carrier.

In 2013, Nevada became a nationwide force in Assisted Reproductive Technology Law when Ms. Surratt and Assemblyman Jason Frierson worked together to pass comprehensive statutes modernizing Nevada’s Assisted Reproductive Technology law.  That law provided for  Surrogacy/Gestational Carrier agreements.  Since then, because some insurance companies declined to cover surrogacy pregnancies, Nevada has seen surrogacy numbers decline.  For individuals shopping for insurance coverage in the individual marketplace in 2019, there were no  options for Nevada women choosing the path of surrogacy.

Ms. Surratt asked the Nevada Legislature to help assure that an insurer may not decline coverage of routine maternity services because the insured woman is acting as a surrogate for another family.  During the process, Sarah Paige of ART Risk Financial & Insurance Solutions was enlisted to provide expert testimony on the issue.  Ms. Paige testified that Nevada went from one of the most progressive States for reproductive law to a State with more challenges because of the limited insurance options.

Getting the bill passed was difficult.  No other State has similar legislation for Nevada to model.  Instead,  a Wisconsin Supreme Court decision interpreting the Affordable Care Act (“ACA”) was used as guidance in testimony and discussions with the Legislators.  Mercycare Insurance Co. v. Wisconsin Commissioner of Insurance held that excluding surrogates from maternity care was discrimination because it excluded some women from coverage based on how conception occurred.  The insurance commissioner in Wisconsin stated that the inquiry of insurance companies into how a woman conceived was "intensely personal."  He stated, "to give an insurer license to inquire into why a woman is pregnant or whether she intends to keep her baby would be improper."  The Wisconsin Supreme Court found that "An insurer may not make routine maternity services that are generally covered under the policy unavailable to a specific subgroup of insureds, surrogate mothers, based solely on the insured's reasons for becoming pregnant or the method used to achieve pregnancy."

Additionally, the ACA mandates maternity care.  Opponents to the bill initially argued that the ACA doesn’t mandate maternity care for surrogates.  We were steady in our position, with critical assistance from Sarah Paige, that the ACA mandates maternity care for all women without an exclusion for women who are pregnant as a surrogate.

During the legislative process, a concern was raised that the Nevada bill would add an additional mandate on Nevada insurers.  The Nevada Division of Insurance ultimately agreed with Ms. Surratt and Ms. Paige that it was not additional but rather an already mandated benefit that needed to be applied equally to all insureds.  This was significant because consequently the bill did not include a fiscal note.

The passage of this bill is significant for Nevada.  Even if the ACA is modified or eliminated, Nevada insurers will still be required to cover an insured when she is acting as a surrogate.

The new law also states that an insurer cannot seek reimbursement for maternity care provided to an insured acting as a surrogate.  In other words, insurers cannot rely on subrogation or a lien on the surrogate or the intended parents to circumvent the intent of the statute by going after a surrogate’s compensation.

Although public entities are not required under the new law to cover maternity care for surrogates, many of these entities currently cover an insured’s maternity care without discrimination.  Public entities may continue to cover an insured’s maternity care without inquiry into why she is pregnant.

Unfortunately, the law does not require an insurer to cover reproductive technology, such as in vitro fertilization, only the costs of prenatal care and delivery equally to any woman who is pregnant whether she is carrying her own child, or another family’s child.

There isn’t a reason why other States can not now follow suite

Important Changes with the Second Judicial District Court

Second Judicial District Court, State of Nevada, Washoe County

By Travis Clark, Esq.

From time-to-time the Second Judicial District Court makes fundamental changes to its operation that impact each and every litigant.  This includes all parties filing joint petitions for summary divorce, stipulations on custody, or filing for a review of child support.

In October of 2018, the Chief Judge Scott Freeman issued an Administrative Order making it mandatory for all litigants and attorneys to become “e-filers” in all cases.  The deadline to meet this requirement was October 18, 2018.  Thus, all new litigants after October 18, 2018, and all existing litigants without attorneys, are required to sign up for the Washoe County E-Flex System. This order comes on the tail end of a previous Administrative Order issued in October of 2015, mandating electronic filing in all Criminal, most Civil and Juvenile cases.  After a successful change from “paper” filing to “e-filing” the Chief Judge and Court administration implemented the sweeping change across all cases in the Second J.D.

This change comes at a time when most of modern society has gone “paperless.” However, the Judicial system is always slow to the uptake and this change comes at a time when the use of online services such as this aren’t just requested, they are demanded.

With that said, signing up is easy and quick.  The Court’s website makes it simple to apply for an account. Attached here is a link for quick access to sign up for a new account.

Learning how to e-file is a little more complicated; however, the Court does provide a PDF of Frequently Asked Questions for your review, and has a hotline to assist you with your filing needs, click here. 

Prudent attorneys will include detailed instructions for their clients in corresponding with their clients.  At Surratt Law Practice, we began including the following instructions in our communications with our clients:

E-filing is now mandatory at the Washoe County District Court.  The Court will not send out paper copies of orders or other documents.  Copies will only be provided from the Court electronically through the e-filing system. Since our firm has withdrawn from your case, we will not receive notice of future filings in your matter.  In order to receive notice of future filings, you must sign up for e-filing using a dependable email address. Here is the link to the Court’s e-filing page.  If you do not sign up for an e-filing account in your name, you will not be informed of orders and other important documents filed in your case in the future.  It is your responsibility to ensure you receive future notice by establishing an e-filing account as soon as possible

Use this article as a basis to update your matter and sign up for e-filing. Remember that when your legal issue is concluded, personal service may no longer be necessary for future filings, and becoming a registered E-filer is the only way to ensure you are promptly noticed of any issues in your matter.

What is a Business Valuation and Why Is This Necessary?

By: Melissa L. Exline, Esq.

First, if there is a business involved in the divorce, it is important to strongly consider hiring an expert.  A business valuation is nothing more than getting someone with the right background to say what the business is worth and why.  Generally, it is distilled down to a report that can be introduced into evidence in a case. A lawyer cannot guess and without knowledge, everyone is shooting in the dark wondering what that business is worth.  In community property states like Nevada, the business is usually a community asset subject to equal division at divorce.  Often, one spouse is going to keep the business and the other is not – but that other spouse that is walking away is entitled to know what the business is worth to address what is fair for that spouse’s interest.  Even if only one spouse “worked” the business, if it was started during the marriage, the business is likely community property.

If you are facing a divorce and a business is involved, expect to hear from your attorney that a forensic accountant or other expert is required to address the value.  It is not uncommon for the spouse that is on the “outside” of the business to be extremely concerned that the other spouse is undervaluing the business, hording assets or cash in the business’ name improperly, or running lots of personal expenses through the company, all of which can impact cash flow and valuation.

Over the years, I have been told “the business has no value – its just me.”  But every business has a value.  If you and your spouse have been living off the income, in whole or in part, you can expect to have the business valued in a divorce. If the parties do not agree on the value, then there is really no choice but to have someone provide an opinion on this. And, no, your regular bookkeeper or accountant cannot set the value.  This is a completely different analysis than what you look at in court during divorce.

I know, hiring an expert is frustrating because that is just one more bill.  But it is not the end of the world.  Paying an expert can be handled efficiently.  For example, if the business is not extremely complicated and cost is a big concern, then both sides can agree to use one neutral expert to give everyone an idea of what the business is worth.  This cuts down on the cost and it diminishes the suspicious that the other side has a hired gun to come up with an inflated or deflated value in a self-serving way.  That alone can help settle a case.  Instead, both sides are paying the same person to give a fair number.  The parties can still argue over whether that number is too high or too low, and if that happens, then costs could increase.  But, many times, by putting some light on the business value I creates a starting point for negotiations to proceed.

Whether you have a business that is modest, like a small lawn service or solo-contractor, to a more complicated business with interests in copyrights, trademarks or patents – you should be ready for the lawyer to recommend a valuation in one form or another.  At Surratt Law Practice P.C., we work closely with experienced forensic accountants to address business valuations on a regular basis.  If you need help in this area, call us to discuss strategies right away.

New Alimony Case from the Nevada Supreme Court

Word ALIMONY composed of wooden letters. Closeup

By Rayna Brachmann, Esq.

The Nevada Supreme Court issued a new case dealing with the issue of alimony in Nevada.  Kogod v. Cioffi-Kogod was published on April 25, 2019.  A link to the complete case is here

The Nevada Supreme Court held that “alimony can be ‘just and equitable’ both when necessary to support the economic needs of a spouse and to compensate for a spouse’s economic losses from the marriage and divorce, including the equalize post divorce earnings or help maintain the marital standard of living.”

The Court analyzed Nevada’s case law and determined that alimony is justified in cases where there is an economic power imbalance between spouses and to ensure that the economically disadvantaged spouse receives support sufficient to meet his or her needs.

In addition to economic need, alimony is appropriate in cases where it compensates a spouse for economic losses resulting from the marriage and the divorce.  A classic example of this is the spouse who gives up his or her career options in order to move for the other spouse’s job which requires relocation regularly.  A spouse who is a stay at home parent would be another classic example.  Nevada case law has specifically recognized alimony as “a remedy to make a spouse whole at the end of a marriage by rewarding efforts in homemaking, childrearing, interruption of a career, or contributions to the success of the other.”

The Court again recognized the value in trying to provide the economically disadvantaged spouse resources to maintain a lifestyle as similar to the marriage lifestyle as possible.

The Kogod Court stated, “A large gap in income, alone, does not decide alimony.  The award must meet the receiving spouse’s economic needs or compensate for economic losses resulting from the marriage and subsequent divorce.”  The Court specifically reiterated that the law does not require alimony awards so as to effectively equalize post divorce salaries.  Kogod holds that justice and equity only require alimony to achieve more parity in post divorce income levels where there is:

  1. Economic need;
  2. The marriage and subsequent divorce contributed to the disparate income levels; or
  3. One spouse cannot maintain the marital standard of living while the other spouse maintains or exceeds the marital standard of living.

The Court went on to state that a District Court cannot award alimony solely to achieve income parity between divorcing spouses.

In the Kogod case, the spouse receiving alimony receiving a division of community assets which generated an income sufficient to meet her post divorce financial needs.  The Nevada Supreme Court found that the District Court did not give sufficient regard to the income potential the recipient spouse had based on the property division.  The Court held, “The principles underlying . . . alimony do not contemplate an award for a spouse who is, after the community is divided, capable of supporting him or her self, able to maintain the marital standard of living on his or her own, and not economically disadvantaged in his or her earning capacity as a result of marriage.”

Why Collaborative?

Two Businesspeople shaking hands

By: Melissa L. Exline

I was reading this interesting article about Collaborative Divorce on the Huffpost website.

This is a good article to explain why divorcing couples choose the Collaborative model, how it works and what the benefits are.  Key words that stick out from this article include “dignity” “respect” and “solutions.”  Certainly, these terms are not what come to mind in the typical divorce under the adversarial litigation model.

Personally, I like to think of Collaborative as allowing more options than a traditional litigated divorce.  Instead of each side trying to maximize how much each gets from the limited “pie” — the collaborative team can think outside-the-box to see how to meet as many of the parties’ needs as possible.

Ideas for Dealing with Conflict

Unhappy married couple get divorced arguing fighting in lawyer office, disappointed husband refusing to pay alimony or sign decree paper, custody battle, family separation, divorce settlement concept

By Rayna Brachmann, Esq.

In a divorce law practice, we deal with our share of conflict.  Conflict between spouses, conflict with other lawyers, conflict with the Judge.  We help guide clients through conflict and hopefully assist them to the other side.  And it’s difficult.  Some days conflict can overwhelm everything else and make it nearly impossible to get anything accomplished.  It can be a significant drain on mental and emotional resources.

So it was with great interest that I read this article from the New York Times called “How to Deal With a Jerk Without Being a Jerk”.  Because that’s a reasonable goal given the level of conflict we deal with on a daily basis.  I read this article both as guidance for myself, and hopefully to improve my ability to assist clients as they deal with conflicts with their spouse, which are of course much more emotionally charged and closer to home.

When I am acting as a mediator, I always tell clients that either one can push the pause button and we can take a break so everyone can take a deep breath and feel less emotionally charged.  This is what expert negotiators do rather than respond when feeling defensive.

“The natural response is to get defensive, but that only escalates the cycle of aggression. Take a classic study in which researchers recorded negotiators with different levels of skill. Average bargainers ended up in three times as many defend-attack spirals as expert negotiators. The experts escaped the heat of the moment and cooled the other person down, too. They calmly commented on their reactions to the other person’s behavior and tested their understanding of what the person was trying to convey.”

This tool is just as effective in a meeting between spouses, in a conference with the Court, and in communications with a difficult attorney on the other side.

Conflict is part of divorce, and part of a divorce practice, but learning tools to deal with it more effectively is a way to improve a challenging situation and get past it to a resolution.

 

Deciding Between Surrogacy and Adoption

Happy interracial family playing on floor

By: Kim Surratt, Esq.

It is common for our clients to have gone through heartbreaking stories of infertility.  They spend years trying infertility treatments.  They pour their hearts and money into treatment after treatment to no success.  Each and every time that a treatment fails, our clients experience a grieving period. They have the procedure and then wait to see if it worked. Over and over again. It is exhausting, physically on woman’s body, and emotionally on the couple.

During each waiting period, “baby fever” would set in and they shop for baby items.  However, the baby fever wears off and it turns to a fear of shopping for baby items.  They become bitter and slowly they decide to discontinue treatments and to stop pouring money into infertility treatments as they are mentally and financially exhausted from the process.

Most of our clients say that they want children, no matter the circumstances. It is an overwhelming power in the core of a person that says “I want to be a parent.”  They believe love for a child is unconditional and it does not matter to them whether the child was birthed by them, birthed by a third party or adopted.  They believe that they would love them all the same.   Yes, they are still drawn to the idea of genetics.  They are drawn to knowing their child will have characteristics similar to them.

These parents are often presented with the idea of surrogacy by their fertility doctor.   However, they are more familiar with the concept of adoption as it is a better understood concept in society.  They have to research both options and try to weigh the pros and cons of each, knowing that they just pray they will be parents one day.  Sometimes our job is to help them weigh the pros and cons to make a decision between adoption and surrogacy.

Obviously, an adopted child is not genetically that of the adoptive parents.  That is an easy differentiation to make between the two options and if the potential parents are set on having a genetically related child, then they have no choice but to look at surrogacy.

If genetics isn’t a selling point for the potential parents, then the next weighing point is the fear of the potential parents that the process will fail and they will not have a child as a result of the adoption process.  The risk tolerance level of the potential parents can easily be traced back to how many failed fertility treatments they have had in the past and their exhaustion level.

In surrogacy, if the surrogate achieves a pregnancy then there is a guarantee under Nevada and California law, if they followed the requirements of the law for a surrogacy, that a court of law will find that the intended parents are the legal parents of the child, not the surrogate.  The risk comes from whether the surrogate can get pregnant or not.  There is a failure rate associated with the process.  It is better explained by the doctors than by the lawyers.  However, the rate of success is controlled by things such as great screening of the surrogate, both physically and mentally, and the doctors use of a high-quality embryo.

In adoption, the risk of failure is high.  If the potential parents are looking at adopting an infant then they can sit on waiting lists for significant periods of time before birth mothers match with them.

Even after a match, the birth parents have a time period within which to revoke consent, usually 48 to 72 hours after birth, unless the they are in a state that follows the Uniform Adoption Act that gives eight days after birth for revocation of consent.   It is a devastating blow to the potential adoptive parents that mimics the effects of failed fertility treatment in which there is a build up and excitement of “baby fever” with no child in the end.  Another route to adoption is foster-to-adopt in which the potential parents become foster parents with the hope of adopting.  In those cases, the same buildup and disappoint that happens in infertility happens here.  A child is placed with the foster parents for a significant amount of time, but reunification of the child with their family is always the goal.  The children may be removed from the foster parents versus being made available for adoption.  The roller coaster feelings that happened during infertility come back into play.

There is nothing easy about this decision.  However, we find that parents who have not endured the exhaustion of infertility treatments tend to fair better in the adoption process.  They have the endurance and stamina to hang in there.  The adoption process can be incredibly rewarding.  However, if you are already exhausted from the roller coaster ride of infertility you may want to take a hard look at surrogacy as an option.

No matter what your journey – seek help!  Don’t do it on your own!  There are many people in the same boat as you with experience to share.  You can learn a lot in a one-hour meeting with an experienced attorney.  Our firm is here for you.  We give parentage advice all the time.  It is our goal to help you make the right decision for you.

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