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.

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

Insurance 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.

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.”

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