There certainly are differences in the legal systems between California and Nevada even though they are both community property states. And those differences may favour one spouse on one issue versus another spouse in another issue.
I want to make clear that a spouse residing in either of those states is not in and of itself enough to extend to that court the jurisdiction. I’m using the word jurisdiction, I use it synonymously with the word power, to decide all issues. So, if we had a couple that lived in Connecticut and the husband decided for tactical purposes he was going to move to Nevada and file a divorce action in Nevada; understand that if that was the only connection that this marriage had with Nevada, Nevada would only have the jurisdiction or power to terminate the marriage, to dissolve the bonds of matrimony and restore each of the spouses to the status of an unmarried person. The court doesn’t necessarily have the power to decide things like property division, spousal support, so on and so forth.
Now stating that, and that’s an important first consideration, the fact that you, as a husband or wife, live in one state or another doesn’t mean that your spouse will be subject to adjudication of all issues in that state in which you reside. There are some significant differences and just to highlight a few, in California, the community of state, the marital partnership, what I’ve told you is an equal division type of partnership begins at the date of marriage and ends on the date of separation.
In California there’s been some recent activity both in the California Supreme Court in the legislature to define separation. But understand that parties might separate and they might not file for divorce for some time and even after the file, the process itself may take some time. So, in California, by the time you get to maybe a trial of a divorce action, the marital partnership property wise may have ended six months, eight months, a year before. In Nevada the marital partnership, like California, begins on the date of marriage but it does not end till the date of divorce.
You can understand by considering those differences that there may be things that are community property in Nevada acquired during a separation period, separation being largely irrelevant to Nevada community property law. That would be separate property or post separation acquisition in California and that is significant by that system.
Again, another example would be that in California there’s a mandatory reimbursement right to somebody who uses separate property, that would be non-community property, separate property to acquire or improve a community asset. You just prove you did it, you have to get your money back unless you’ve signed a written waiver. In Nevada the court’s power toward reimbursement is discretionary, not mandatory.
Leslie Shaw practices family law in both California and Nevada, and has been involved in close to 1,000 family law matters largely involving litigation throughout his 40 year career. He is also a Certified Family Law Attorney, a status granted by the California Board of Legal Specialization.
Add A Comment