Nevada family-law case summaries

Richard Candelaria and Michael Kelly met in 1991 and began a long-term relationship. They moved in together that November, exchanged rings in July 1992, and lived together for years. But they could not legally marry in Nevada because, at the time, Nevada law and later the Nevada Constitution prohibited same-sex marriage. When California legalized same-sex marriage in 2008, the couple traveled there and formally married. In 2020, Michael filed for divorce. The fight in this case is about how to divide two assets: Michael's 401(k) retirement account (opened in 1984 with no contributions after 2008) and shares of stock he received through his job between 1996 and 2004. Under Nevada community property rules, assets acquired during marriage are generally split, but assets acquired before marriage stay with the spouse who owns them. So the question is: when did the marriage start? Michael said the marriage began in 2008, when they actually wed in California. Richard said the marriage should be treated as starting in November 1991 or July 1992, because they would have married then if Nevada had not unconstitutionally banned same-sex marriage. The district court sided with Michael and used 2008 as the marriage date, treating the 401(k) and stock as Michael's separate property. The Nevada Supreme Court affirmed. The court explained two related but distinct points. First, the U.S. Supreme Court's 2015 decision in Obergefell v. Hodges, which established that same-sex couples have the right to marry and that states must recognize same-sex marriages performed in other states, applies retroactively. So Nevada must recognize the couple's 2008 California marriage even though Nevada did not recognize such marriages in 2008. That part favored Richard, in the sense that the marriage is treated as valid from 2008 forward. Second, however, Obergefell does not require courts to pretend a marriage existed before a couple actually got married. Nevada does not recognize "common-law marriage" -- the idea that a couple who lives together long enough and acts married is legally married without a ceremony. A 1943 Nevada statute bans common-law marriage, and that ban applies to everyone regardless of sexual orientation. Richard asked the court to apply a multi-factor "but-for" test (borrowed from an Oregon case) to decide whether the couple would have married earlier had they been allowed to. The court concluded that doing so would amount to recognizing a common-law marriage, which Nevada law forbids. The court said it had no power to carve out a judicial exception to the statutory ban, especially since Richard did not argue that the ban itself was unconstitutional. The practical result: the marriage is dated from the 2008 California ceremony, and assets Michael acquired before then remain his separate property.