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.

To Deed or Not to Deed? That is the Question.

Man singning marriage settlement, rich woman pulling into it

By: Melissa L. Exline, Esq.

For married couples, an issue that arises often is this:  One party might have better credit, or, a property was purchased with help from family.  Later, a new loan is needed to get more favorable terms or remove the family members from title or the loan.  Thus, one spouse asks the other to sign a deed prepared by the title company, at the request of a lender, so that a new loan or refinance can be acquired.  If you sign a deed on a property giving your interest to another, spouse or otherwise – be prepared for the court to force you to honor the terms of the deed.  It will not matter if you did not intend to give away your interest.  Absent a clear contract signed by both parties spelling out the reasons for the deed, it will likely be considered a gift – period.

In Nevada, community property acquired during the marriage must be divided equally at divorce. However, when one spouse signs a deed granting, releasing or deeding away his or her interest to the other, then it creates a presumption under Nevada law that the grantor is gifting the property.  In order to overturn the presumption that the deeded property was a gift from one spouse to the other, one must show clear and convincing evidence a gift was not intended.  This is exceedingly difficult.

If you are ever approached with an request to sign a deed releasing your interest in real property – be aware – even if you don’t mean it, even if a gift was never discussed, you could be found to have given away all of your interest in that property.

Kids In the Middle

Frustrated kid son puts fingers in ears not listening to noisy parents arguing, stressed preschool boy suffering from mom and dad fighting shouting, family conflicts negative impact on child concept

By Rayna Brachmann, Esq.

When the kids are put in the middle of their parents’ divorce, parents can inadvertently, and sometimes purposefully harm their children.  While most parents going through a divorce will occasionally let their anger at their spouse show in front of their children, there is a greater level of estrangement a parent can cause called Parental Alienation Syndrome.  Parental Alienation Syndrome is significantly greater than the occasional slip of the tongue demonstrating a parent’s anger, frustration, sadness, etc.  While all divorcing parents must use their best efforts to avoid any such comments in the presence or earshot of their children, Parental Alienation Syndrome will most often require professional intervention by a mental health professional to address it effectively.  Parental Alienation Syndrome can be deeply detrimental to children and the effects can be long lasting.

Here is a link to an article by a psychologist describing the syndrome and its attributes.

A newly divorced friend recently reflected on comments that are getting back to her by the children regarding her spending habits, (wrong in the view of her former spouse), how she spends her time (selfishly in her ex’s mind) and other negative commentary about her as a person.  Needless to say, this is deeply upsetting to her and the children, and objectively the “wrong” way to deal with the emotions following divorce.  That is not to say the stray negative comments rise to the level of Parental Alienation, but they are still impactful and to be avoided by parents going through a divorce.

Kids love and need both parents.  Even if the relationship is over, in most cases, both parents have something to offer the kids, and the kids are bonded to both parents despite the divorce.  Parents who are unable or unwilling to address their anger in more constructive and appropriate ways risk doing long term damage to their children.  Below is a song by Ani DiFranco processing the anger her mother bore towards her father in her childhood and its effects on her.

While the artistic contribution is a good one, I’m guessing Ani DiFranco could have found inspiration elsewhere, and likely would have preferred that her mom not immerse her in her own anger after divorce.

It’s natural to have strong emotions during and after divorce.  Talk to a counselor.  Talk to your friends.  Talk to your family.  Talk to your lawyer.  Start a regular exercise routine.  Take up a new activity.  DON’T TALK TO YOUR KIDS about it.  That’s not their role.  And it will impact many of them in a significant and long term way.  Your kids deserve better.

Does the use of Cannabis affect parenting? The “highs” and lows of using marijuana as a parent.

Father with his daughter playing with blocks together at home, sitting on the floor in the living room.

By Travis Clark, Esq.

In this blog article, I attempt to look objectively at the use of cannabis as a parent.  It should come as no surprise that as a family law lawyer, I make arguments on both sides of this issue depending upon the case and its particular facts.  Judges in Nevada are not necessarily united on the issue either.  For example, if a parent is prescribed cannabis for anxiety or seizures, it has come out that the parent may continue to ingest or smoke cannabis under the prescribed dosages even while exercising custody.  Yet other judges take the hardline approach of no intoxicants while caring for a child.  However, this view does not necessarily square with, for example, opioids which are routinely prescribed for pain and which parents take while caring for children.

Anecdotally, pro cannabis parents provide that cannabis helps them relax from the stresses of the day and “come down” to their child’s level in such a manner that the parent expresses more patience for the conversations of young children; or it assists them in focusing on the child more, for example with games the child enjoys.

One parent relayed to me that smoking one or two puffs after work helps them focus on the child’s desire to play a game that the parent finds utterly boring prior to smoking.  However, after inhaling the few draws of cannabis, the parent slows down, focuses and is present for the child, who responds more positively than when the parent is only half-engaged.

Routinely, I make the argument in court that a parent must be a “present parent” meaning that the parent is engaged with the children – not simply exercising custody – but actually getting down to their level, playing games, doing homework and being actively involved in the child’s life.  Parents who take a more selfish approach to their day and dealings with their children are not “present” and therefore not rising to the occasion of engaging their children.

Cannabis, according to the parents I spoke with, improves patience, and listening.  It does not take a stretch of the imagination to see that slowing your racing thoughts helps one focus and pay attention to the “here and now.”

The obvious questions are: “What about emergencies?” and “How is smoking cannabis different than a glass of wine each night or the beer at a BBQ?”  If cannabis slows the mind, how can a parent respond to  an emergency?   What about use versus abuse?  How is smoking cannabis different than the issue raised above where opioids are prescribed and not abused?  I do not have an answer for these questions, however, these are the arguments offered during a custody case or divorce trial and are the same questions our Nevada Judges grapple with every day.

Despite the anecdotes, this blog in no way advocates the use of cannabis and parenting.  Simply, it attempts to shed a little light on how the Courts in Nevada, and parents who use cannabis, feel about the issue.  I regularly appear in front of the Washoe County Bench and the issue is not clear cut for our Judges.  Some err on the side of caution, others state there is not enough evidence to rule either way, while still others provide an entire prohibition on any intoxicants during custody time.

As the use of cannabis becomes more wide-spread these and many other issues will be more fully vetted with scientific research and findings.  All we can do now is wait for the research to come in.

10 Tips For People Surviving Divorce Litigation and Maintaining a Relationship with your Lawyer:

Two people holding hands for comfort. Doctor consoling relatives of patients in hospital concept banner panoramic crop for copy space.

By: Melissa L. Exline, Esq.

No. 10   Use email, it is a good tool to document what you convey to your attorney.  You have a searchable source for what you said and what the lawyer’s response was.  By the way, lawyers search these too and review them to make sure they have addressed things you have relayed to them.

No. 9     Start seeing a therapist if you are losing it emotionally.  First, they are generally covered by insurance.  And second, a therapist charges much less than a lawyer to address your needs.  Use someone that is specifically trained to address the emotional trauma you are dealing with.

No. 8     Write down your questions and other things you want to tell your lawyer as they come to mind, and combine them into a single email to your lawyer to save on fees.  Piecemeal emails or calls are a way to eat up your retainer.  When your lawyer pulls up your file, it is better to address 5 things and have it done at once than pay for 5 separate incidents of billing

No. 7     Be organized.  This might sound like a given, but the more organized you are, the easier it is for your lawyer and their staff.  Have a file that you make just for the case noting what you gave to your lawyer, when, and why.  This saves money.

No. 6     Respond to your lawyer.  Do this even if you don’t have an answer yet.  In fact, say that you don’t have an answer yet and you plan to look into it shortly (or, whenever that might be and follow up).  As an attorney, I’m always amazed at how often I am ignored when I need to get things done in a case and I need the client to be ready to respond with answers, documents, notes, etc.  You are paying your lawyer to ask these questions of you, and you will pay again when they ask you twice for the same thing because you failed to respond or respond fully.  Avoid that common mistake.

No. 5     By the way, if you tend to ignore your lawyer, don’t turn around and demand instant responses (absent an emergency that is).  Generally, good lawyers are busy with more than one client and most will respond accordingly and in due time.  If you are freaking out, refer back to tip No. 9.

No. 4     Take notes.  When you are having a meeting with your lawyer in person or on the phone, write it down (or follow up with an email!).  It helps to make sure everyone is on the same page.

No. 3     Keep a calendar specifically about your divorce/custody case.  This can parse out the negativity of the divorce from your normal daily routine and free you to look at your normal calendar with less anxiety.  Certain big dates will have to be on your normal calendar, but the day-to-day issues can be on a separate calendar while you are in the process of dealing with litigation.

No. 2     Don’t create false emergencies.  By this I mean, you want answers by a deadline you create that is not demanded by the situation itself.  Everyone wants answers and, certainly, we want them sooner rather than later.  If you do this, it creates letters and paper flying back and forth – but it does not mean you get the answers you want when you want them.  You do get a bill and stir up activity, but that legal activity could be to your detriment.

No. 1      Say “Thank You” once in a while.  It is such a small thing but goes so far!  I love helping clients and I go out of my way to help those that I know are genuinely appreciative.

How Young Is Too Young To Get Married?

Young bride and groom playing wedding summer outdoor. Children like newlyweds. Little girl in bride whote dress and bridal veil kissing her little boy groom, kids game. Bridal, wedding concept, image toned and noise added.

By Rayna Brachmann, Esq.

Currently in Nevada, people who are under the age of 16 can get married with the consent of one parent or guardian and authorization of the Court.  The statute covering minor marriages provides little guidance for the Court when and under what circumstances to approve a request for a minor marriage.  The law instructs the Court to consider whether the marriage will serve the best interests of the minor, and whether a parent or guardian has consented to the marriage.  The statute states that pregnancy alone does not establish that the minor’s best interests will be served by allowing the marriage, nor may pregnancy be required by the Court in order to authorize the marriage.

The Nevada Legislature is in session and a bill has been introduced which would ban all marriages by minors in the State of Nevada.  The Legislator who introduced the bill has concerns that in Nevada, there is no minimum age for marriage.  Under current law, so long as one parent consents and the Court authorizes the marriage, in theory a child of any age can be married in Nevada.  Her bill would change that.  A link to an article about the bill is here.

Many years ago when I was a Law Clerk, the process for a minor seeking to be married involved completing an application describing generally what the circumstances were, as well as an interview with the Law Clerk when then presented the details to the Judge who decided whether to grant the request or not.  Sometimes people were so certain as to the outcome that they would come to Court dressed in their wedding clothes, only to leave with their hopes dashed when the Court declined to grant their request.  The Court at the time I worked there tended to be fairly restrictive with granting the approvals for a minor marriage, and the request needed to be based on very good reasons.  As the statute makes clear, pregnancy alone, was not a sufficient reason to grant the marriage.  I don’t recall any situations where there was a significantly older man with a young vulnerable girl, but had any such situation been presented, it is almost certain that the Judge I clerked for would not have granted approval.  Nor do I believe any other Judge at the time would have done so either.  But, if the article linked above is correct, apparently some Judge somewhere in the State gave permission for an 11 year old to be married.  Those must have been truly extraordinary circumstances.

Travis Clark

Surratt Law Congratulates Travis Clark on his appointment to the Northern Nevada Disciplinary Board Committee for the State Bar of Nevada.  Mr. Clark’s appointment is on a volunteer basis and will conclude on January 31, 2022.  As a committee member, Mr. Clark will assist the Nevada State bar with disciplinary actions affecting attorneys in the Northern Nevada area.

5 Things You Should Know About Divorce and Finances

Silver wedding rings on one hundred dollars bill background

By: Melissa L. Exline, Esq.

Dealing with divorce is tough no matter the circumstance.  But, being prepared, and taking the time to learn a few things about your finances before the process begins can help make dealing with the stress a bit easier.  Nevada is a community property state, so it is important to know how this will impact your specific financial situation.  Knowing what types of things will be considered is key to making good decisions and not being blindsided by learning, after-the-fact, that certain things are ripe for division in divorce.

1. Generally, Everything Earned During Marriage is Community Property

When you bring home a paycheck during marriage, that is typically a community property asset.  This is the case even if only one person works.  The fact that the income is given to one person does not mean that legally it belongs only to that person.  Rather, it belongs to the community (which belongs to both spouses equally).  If you used that paycheck to pay bills, the assets you acquire by paying off debts and increasing assets will be considered community property.  For example, increasing such things like equity in homes, cars, and retirement or savings accounts means these assets will normally be considered community property.  In Nevada, absent a clear reason not to, these community property assets will be divided down the middle.  Yes, they are 50/50 to each spouse!

2. Divorce Divides Businesses

So, expanding on the above discussion about community property – if a there is a business that was started during the marriage, that will clearly be considered community property.  In fact, if that business was started BEFORE marriage, but grew or prospered during the marriage, the portion of the increase in value of the business is likely to be considered community property.  The surprise for some people is the business will likely be subject to equal division even when one spouse has little or no role in creating or growing business.

If both spouses work for the company, it is not so simple to ask one to leave.  In fact, if one spouse pushes the other out, this creates another issue – i.e. alimony might be owed to support the spouse that is now jobless.  Another thing to consider is the significance of the spouse’s contribution and capability in running the company can be an additional reason why the court would give him or her the ownership of the company, especially when the other is unable to run it.   However, the other spouse will be entitled to his or her one-half share if the business is taken by the other spouse.  That share can be off-set with other assets, or paid for in a lump sum or over time in what is often referred to as an “equalization payment.”

The bottom line here – divorce will divide all community property assets, which will included your businesses absent a clearly enforceable premarital agreement.

3. Pre-marital Assets, Gifts and Inheritances are Separate Property

Nevada law states:  All property of a spouse owned by him or her before marriage, and that was acquired by him or her afterwards by gift, bequest, devise, descent or by an award for personal injury damages, with the rents, issues and profits thereof, is his or her separate property.  NRS 123.130.

One issue that comes up regularly in this area is the ring.  The giver may believe it is “fair” or “right” to get the ring back.  In most cases, that big diamond ring offered as a gift when the happy-couple were in the proposal phase, is going to be considered the separate property of the receiving party.  The gifting party does not have a right to demand the return of the ring.

While the issue of the ring is clear cut (usually), most married couples engage in taking their gifts or inheritances and “mix” or “comingle” their separate property into the community property.  When this happens, it has a mixed character between community and separate property.  So, if a spouse gets an inheritance and immediately deposits it into a joint bank account, there is a chance it is going to be considered a community property asset unless it can clearly be traced back to show its separate property nature.  More often than not, assets become so hopelessly comingled, a Court and the lawyers cannot hope to untangle the mess and will find the entire asset that was separate property has become community property.

If divorce is on the horizon, it is wise to be careful with gifts, inheritances and monetary award from personal injury.  If the asset is kept separate in name/title, it will make all the difference in whether this asset is considered separate property.  An example is an inherited retirement account – if that account is inherited by Wife, and stays in her name only, then Husband will not have a claim to that retirement account for division during divorce.

4. The Divorce Judge Gets to Know About All Assets and Debts

Not everyone realizes that everything you own and everything you owe must be disclosed to the Court and the other party.  In fact, Nevada law mandates this clear disclosure at the outset of the case.  You cannot play “hide the ball” and you must inform the other side about all asset – this includes separate and community property.

Why, you might ask, does the Court get to learn about separate property if it is not subject to division?  Well, the Court must consider all assets at the disposal of each side in order to make fair determinations regarding each spouse’s resources.  For example, if one spouse is the recipient of money from a trust as an inheritance, and that wealth is significant, it might not make sense to have that spouse receive alimony or other financial support. The flip side to this is the Court might feel more confident in mandating a spouse with considerable separate property wealth to pay support to the other spouse (alimony factors and how that is dealt with is a topic for another blog post – so stay tuned).

5. Not All Assets are Created Equal

Experience counts in hiring a divorce lawyer and this shows the most in complicated high net-worth cases.  This is because not all assets (or debts for that matter) are created equal.  Cash is king and has the most liquidity.  Compare this to a house or real estate which could take a long time to sell, and once sold, might trigger tax consequence.  Even when both assets are under the retirement umbrella, a true pension (direct benefit plan) is very different than a 401(k) plan (direct contribution plan).  Your own goals and needs will impact which assets are better for you.

An example is taking a ROTH IRA, which is funded with post-tax dollars and, when the party that takes this asset begins pulling the money at retirement (hopefully they wait that long), he or she takes the withdrawal without having to pay additional taxes.  In a traditional IRA or other pre-tax retirement account, when the party takes a withdrawal, income taxes will be due.  These could both be valued at $100,000 on a piece of paper or balance sheet for the lawyers’ negotiation during the divorce.  But, you must understand, there are complicated tax issues and liquidity issues a good family lawyer will be thinking about.  Better yet, you understand them too and can bring your own experience to the table when discussing what makes sense and what is fair for division.

Being prepared, and spending time learning about what you have, can be a large part of making a divorce proceed more smoothly.  When everything is subject to disclosure, you need to be able to have a meaningful conversation about your retirement, business, life insurance, college education accounts, bank accounts, tax obligations, etc.

The more you understand and are prepared translates into a better working relationship with your divorce attorney, and less cost by way of that lawyer’s bill (Does anyone want higher lawyer fees?).  It is without a doubt the parties in the divorce have a direct ability to lower their own costs by taking control, getting documents together, and taking the time to learn about what is at stake in the divorce.

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