Before filing for divorce, it is likely you would like an estimate of how a judge will examine you and your spouse’s assets. Most importantly, you would like an idea of the future awards or obligations that will result from the divorce. Yet, in Nevada (and in most other jurisdictions), such a reasonable request from a prospective client is very difficult to deliver.
This article will explain why it would be helpful for states like Nevada to adopt a spousal support formula.
What is the Current Spousal Support Law in Nevada?
One would think that for matters as significant as the allocation of material property, the law would be robust with guidance. This is sadly incorrect. From NRS 125.150(1):
In granting a divorce, the court:
(a) May award such alimony to the wife or to the husband, in a specified principal sum or as specified periodic payments, as appears just and equitable
I don’t need to extensively tease this out to see where the issue lies. In a hypothetical scenario, it is likely that the working spouse has a much different idea of what a “just and equitable” allocation of his/her earnings relative to that of the homemaker spouse. And what’s to say that the judge shares a similar understanding of the material terms of NRS 125.150 with either spouse?
(In)famously, in Gardner v. Gardner, 110 Nev. 1053 (Nev. 1994), the Nevada Supreme Court understood “just and equitable” much differently than a lower court. The Nevada SCOTUS increased the spousal support award from a lower court by $1,000/month because the lower court judge did not properly consider that “substantial additional alimony is necessary in order to be fair” Gardner v. Gardner, 110 Nev. 1053, 1058 (Nev. 1994).
Four years later, Justice Shearing of the Nevada Supreme Court rightly criticized this statutory framework for alimony. “Regarding the award of spousal support, the legislature has failed to set forth an objective standard for determining the appropriate amount. Absent such a standard, there appears to be a disparity in the awards for spousal support on similar facts even greater than for child support.” Wright v. Osburn, 114 Nev. 1367, 1369 (Nev. 1998).
What Has Been Done to Create a Standardized Spousal Support?
In response to the above decisions, among others, the members of the Family Law Section of the Nevada Bar convened in Tonopah in 1997 with the hopes of standardizing alimony awards. The Section perused previous court decisions and indeed did propose a repeatable formula for courts to apply—however, even the members in attendance could not come to an agreement regarding what should be included, and no formal recommendation was made to the legislature.
It wasn’t until 2007 that the Nevada Legislature codified eleven “guidelines” of which a court must “consider” in awarding alimony. In actual fact, without stating how a court must weigh each factor, such an approach is as practical as “just and equitable.”
The Honorable David A. Hardy commented in 2009 on how difficult Nevada’s alimony law is to parse for legal practitioners:
Alimony is a particularly troubling feature of Nevada matrimonial law. Nevada attorneys and judges are ill-equipped to facilitate pretrial resolution when alimony is at issue. No objective measures are available for judging fairness or predicting results. The newly-enacted statutory guidelines, based upon Nevada decisional authority, provide no guidance as to their relative weight and little guidance regarding their purpose. “Nevada Alimony: An Important Policy in Need of a Coherent Policy Purpose,” 9 Nev. L.J. 325-326 (2009).
Is it just that we need to accept that alimony awards are messy and that each divorce settlement is destined to be complex and contentious? I am just unwilling to concede to such a proposition—the well-being of my clients means too much to me.
The Immense Benefits of a Standardized Spousal Support Formula
I don’t want to be that person stating the obvious—that life would be simpler for divorce lawyers, but more importantly, clients, if Nevada applied a standardized spousal support formula.
Insecurity regarding individual outcomes has devastating effects on economic output. Conversely, one can reasonably argue that besides our collective spirit, it is our codification and legal support of property rights that has led to the vast growth of this country.
Such first principles should be recognized and effectuated in other parts of the law, spousal support being ripe for reform under this guise. Once practitioners of divorce law can predict with accuracy how a divorce court will assign spousal support, they will confidently predict to their clients how a court will allocate spousal support. Such accurate knowledge then will provide the means for potential settlements to be reached for more people, more quickly. Spousal support formulas make the divorce process more fair and just.
Let’s not allow perfection to stand in the way of clear improvements. Of course, the settled-upon formula will not be completely satisfactory in all outcomes (let us not forget that our laws may be amended), but the benefits realized by all participants in the divorce process will easily make up for the loss. Contract and property law are the foundations of the greatest economy the world has ever seen—separating spouses will clearly benefit from divorce law embracing these principles of standardization and predictability.
Besides advocating for a spousal support formula, Stacy Rocheleau has practiced divorce law for 18 years, helping clients with uncontested divorces, legal separations, and contested divorces. Among her accolades, Ms. Rocheleau was elected the best divorce attorney in her home State of Nevada for 2017 & 2018. https://rightlawyers.com/