Separations take numerous forms. Some separations last a few days or weeks, while other couples live separately for years. You can informally separate from your spouse and work out an informal agreement on your own. Alternatively, couples in Nevada can ask to be legally separated, also called "separate maintenance actions."
One spouse can request a formal separation, or maintenance action, by filing the proper paperwork with the court. Unlike a divorce, spouses cannot file joint separate maintenance actions. In your petition for separate maintenance, you may request maintenance orders for the same types of matters that would be decided in a divorce, with some exceptions.
Specifically, Nevada law allows maintenance actions to resolve asset and debt division, child custody, child support, and alimony issues. However, there are some limitations. For example, a judge cannot issue a lump sum property or child support order as part of a maintenance action. Additionally, a maintenance order can't require a couple to sell property such as the marital home. Maintenance orders are designed to be temporary, thus, Nevada law prevents a judge from making separation orders that have more permanent consequences.
A divorce brings finality, unlike a separation. Once you and your spouse are divorced, you are free to remarry, purchase or sell property, divide retirement accounts, relocate or do any number of things you can't do during a separation period. Essentially, a separation acts as a temporary freeze on your life.
Many times, a maintenance order will prevent either spouse from disposing of or diminishing marital assets. A maintenance order will allow you and your spouse to settle some potential debts, but Nevada law prohibits lump sum alimony, child support or property awards in a temporary maintenance order. A separation period may feel like a legal purgatory – you're not really allowed to move forward or backward.
However, a separation may offer some advantages for couples over a divorce. Specifically, if health insurance coverage is an issue, you and your spouse may choose to separate—rather than divorce—to allow a needy spouse to continue receiving coverage. Other couples may be ready to separate, but may want to postpone divorce to allow children to finish out a school year or to wait for a slow housing market to recover.
You and your spouse are free to decide the terms of your separation. You may do this informally through a written agreement or you may request that your agreement becomes an official court order. Separation agreements that are recognized by the court are referred to as "maintenance orders" in Nevada. A maintenance order can address child custody, holiday visitation schedules, visitation exchanges, responsibility for credit card bills, each spouse's right to vehicles or the marital home, health care coverage, and any other issues that are relevant in your case.
To formalize an informal agreement, you would need to submit your agreement (along with a petition and necessary paperwork) to a judge for review. A judge may hold a hearing in your case. Both you and your spouse would have the opportunity to testify, bring witnesses and present evidence. If a judge determined that your agreement was fair and served your children's best interests, then your agreement could become an official order of the court.
Yes and no. A judge doesn't have to follow a maintenance order's terms when awarding custody in a divorce. Nevertheless, your maintenance order will likely serve as a model for deciding custody in your divorce case. Specifically, a judge is unlikely to alter the custody arrangement followed during your separation if your children thrived during this period. In fact, a separation period may give a judge the opportunity to see if a custody arrangement will work. When things succeed, it's even more likely that a judge will stick with the current arrangement.
A change in custody is much more likely if your own or your spouse's circumstances have drastically changed since your separation. For example, if one spouse is planning to relocate or has taken a demanding, travel-heavy job, you may be able to justify a change to custody. Additionally, at a hearing to finalize your divorce, you can present evidence that the current custody arrangement didn't serve your child's best interests or that your child's grades and health have suffered while in your spouse's care.
What happens during your separation period can have a lasting impact on your divorce. Make sure that you understand your rights and responsibilities under a separation agreement. When in doubt, seek out a local family law attorney for advice.