Nevada family-law case summaries

This case concerns the difference between a divorce and an annulment, and what a court must prove before it can declare that a marriage never legally existed. Maria Rosa Dos Santos, who is originally from Argentina and was living in the United States on an expired visa, met Mark Vincent Dreibelbis, a U.S. citizen and Nevada real estate agent, through a dating app in late 2021. They married in Las Vegas in February 2022, despite a language barrier (Mark spoke English, Maria spoke only Spanish), and Maria moved in with Mark in Henderson. Mark supported Maria financially and began helping her apply for permanent residency, but the application was never filed because his real estate business struggled as mortgage interest rates rose. As their finances worsened, the relationship broke down. By October 2022, Maria had moved into a friend's home and told police that Mark had strangled her during a domestic violence incident. Police observed visible injuries, went to Mark's home, and arrested him; he denied the allegations. Mark was charged with domestic battery by strangulation, but the charge was later dismissed after Maria did not appear to testify. In May 2023, Maria filed for divorce. Mark responded by asking the court to annul the marriage - an annulment treats the marriage as if it was never valid, rather than ending a valid marriage as a divorce does. Mark claimed Maria married him only to get immigration benefits and that she had made up the domestic violence accusations to support an immigration petition. He submitted translated WhatsApp messages that he said showed Maria admitting she fabricated the abuse claims and used the marriage to get legal status. Maria denied writing the messages and said Mark - who had created her WhatsApp account and had access to her devices - fabricated them. Mark acknowledged he knew about her immigration status before the marriage and had agreed to support her and help her get documentation for legal residency. After a trial, the district court granted the annulment. It found that Maria had fraudulently induced the marriage solely for immigration purposes and that her domestic violence allegations were not credible, concluding that Mark had "sufficiently proven" his allegations. On appeal, the Court of Appeals agreed with Maria that the district court used the wrong standard of proof. Under Nevada law, a person seeking an annulment based on fraud must prove that fraud by "clear and convincing evidence" - a demanding standard. The trial court instead said only that Mark had "sufficiently proven" his claims, and it never identified or applied the clear-and-convincing standard. The appellate court also noted that the trial court never worked through the specific elements that make up fraud. Because of this, the Court of Appeals reversed the annulment and sent the case back so the district court can apply the correct standard and analyze the elements of fraud properly. The court added that if, on remand, the district court concludes Mark did not prove fraud by clear and convincing evidence, it should instead enter a decree of divorce.

Erich and Raina Martin married in 2002 while Erich served in the military. When they divorced in 2015, they negotiated a marital settlement agreement that the district court incorporated into the divorce decree. The decree gave Raina half of Erich's military retirement benefits. It also included a key promise: if Erich later chose to receive military disability pay instead of retirement pay (which would shrink Raina's share, because federal law requires veterans to waive retirement pay dollar-for-dollar to receive disability pay), Erich would reimburse Raina for the reduction. Erich retired in 2019, and Raina began receiving her share. In 2020, Erich elected full disability pay, waiving all retirement pay. The federal pay agency stopped sending Raina checks, and Erich refused to pay her himself, arguing federal law forbade it. Raina asked the district court to enforce the decree. The district court agreed with Raina and ordered Erich to pay her monthly installments equal to what she would have received absent the waiver. On appeal, Erich argued that federal law - specifically the Uniformed Services Former Spouses' Protection Act and two U.S. Supreme Court cases, Mansell v. Mansell and Howell v. Howell - bars state courts from ordering a veteran to make up the difference when disability pay reduces a former spouse's share of retirement pay. The Nevada Supreme Court affirmed. The majority drew a distinction: federal law does prevent state courts from dividing disability pay as community property or unilaterally ordering a veteran to indemnify a former spouse. But here, the parties themselves negotiated and agreed to the reimbursement provision, the district court entered that agreement as part of the divorce decree, and that decree became final. The court held that enforcing a final, agreed-upon decree under Nevada's res judicata (claim preclusion) doctrine and ordinary contract principles is different from a state court imposing such a division on its own. Under Nevada precedent, particularly Shelton v. Shelton, courts may enforce such agreements, and Erich may satisfy the obligation from any source of money he chooses, including his disability pay. The court also affirmed the $5000 attorney-fee award. Under NRS 125.040, a court in a divorce suit may require one party to pay money to enable the other to carry on or defend the suit, after considering each party's financial situation. The district court found Erich's income was about three times Raina's and tailored the award accordingly. The Nevada Supreme Court held that the four-factor Brunzell test for the reasonableness of attorney fees does not apply to such pendente lite awards because Brunzell evaluates work already performed, while NRS 125.040 fees cover prospective work - here, defending the appeal. Two justices concurred in the result. They would have held that the decree's indemnification provision is in fact preempted by federal law under Mansell and Howell, but agreed that under Nevada law, the decree had become a final judgment that Erich could not collaterally attack, so res judicata required affirmance.

Erich and Raina Martin divorced in 2015 after Erich had served in the military. As part of their divorce, they signed a settlement agreement, which the district court incorporated into the divorce decree. The decree gave Raina half of Erich's military retirement benefits. Critically, it also said that if Erich later chose to take military disability pay instead of retirement pay, he would have to reimburse Raina for any reduction in her share. That contingency mattered because of how federal law treats military pay. A veteran who wants tax-free disability benefits must give up an equal amount of taxable retirement pay - he cannot collect both for the same dollars. When Erich retired in 2019, Raina began receiving her share of his retirement pay directly from the Defense Finance and Accounting Service (DFAS). The next year, Erich elected full disability pay, which wiped out all of his retirement pay - and with it, Raina's share. When Raina asked him to make up the difference as the decree required, he refused, arguing that federal law forbade it. Raina asked the district court to enforce the decree. The court agreed and ordered Erich to pay her the monthly amounts she would have received absent his waiver. The court also awarded Raina $5000 toward her attorney fees for the appeal, citing the large income disparity between the parties. On appeal, the Nevada Supreme Court affirmed. The court explained that under U.S. Supreme Court decisions in Mansell v. Mansell and Howell v. Howell, a state court cannot, on its own authority, treat military disability pay as community property or order a veteran to "indemnify" a former spouse for the dollar amount of retirement pay the veteran chose to waive in favor of disability pay. But the Nevada court drew a distinction: those federal cases addressed what a state court can order on its own; they did not bar enforcement of an indemnification term that the divorcing spouses themselves negotiated and put into their property settlement. Because Erich and Raina expressly agreed to the reimbursement provision, and because the divorce decree had become a final judgment, the doctrine of res judicata (which prevents parties from relitigating matters already resolved in a final judgment) required enforcement. The court also held that the district court did not abuse its discretion by awarding $5000 in pendente lite (during-litigation) attorney fees under NRS 125.040 without analyzing the Brunzell factors. Those factors evaluate the quality of work already performed, whereas NRS 125.040 fees are designed to fund work yet to be done. A two-justice concurrence by Justice Cadish, joined by Justice Pickering, agreed the decree should be enforced - but only because res judicata bars Erich's collateral attack on the final judgment. The concurrence would have held that the reimbursement provision itself is preempted by federal law, even though the parties had agreed to it, and would overrule Shelton v. Shelton to that extent.

Leslie and Brett Miller divorced in 2015. They have two minor children. Through mediation they agreed on most issues, including custody: they share joint physical custody of one child, but Leslie has primary physical custody of the other child, who lives with her and stays with Brett every other weekend. They could not agree on child support. The trial judge ordered Brett to pay Leslie $345 per month. When Leslie asked the judge to explain how he reached that number, the judge said he had "run the numbers" using statutory percentages (18% for one child and 25% for two children) along with deviation factors permitted by Nevada law, but did not show the calculations. Leslie appealed. The Nevada Supreme Court took the case to answer a question it had never directly answered before: how do you calculate child support when parents share joint physical custody of one child but one parent has primary physical custody of another child? Several different formulas had been proposed by the parties and by the State Bar of Nevada's Family Law Section, producing wildly different numbers from $345 to $832.19 per month. The Court walked through Nevada's child support statutes. NRS 125B.070 sets baseline percentages of a parent's gross monthly income that the parent owes for child support, based on the number of children (18% for one child, 25% for two, etc.). The Court emphasized that this percentage depends on how many children the parents have, not on the custody arrangement. After that obligation is calculated, the custody arrangement determines who pays what to whom. The Court announced this step-by-step formula for the Millers' "split custody" situation: 1. Calculate each parent's support obligation under NRS 125B.070 based on the total number of children (here, 25% of each parent's gross monthly income because there are two children). For Leslie, that was $996.67; for Brett, $1,076.24. 2. Divide each parent's obligation by the number of children to get a per-child amount. Leslie: $498.34 per child; Brett: $538.12 per child. 3. For the child in joint physical custody, offset the per-child amounts (under the Court's prior decision in Wright v. Osburn): the higher earner pays the lower earner the difference. Brett owed Leslie $39.78 for the joint-custody child. 4. For the child in Leslie's primary physical custody, Brett owes the full per-child amount ($538.12) with no offset. 5. Add those two figures together: Brett owes $577.90 per month. 6. Make sure the result does not exceed the presumptive maximum amount per child in NRS 125B.070(2). 7. The district court may then deviate from that amount under NRS 125B.080, but if it does, it must make written findings of fact explaining the deviation and stating what the support amount would have been under the formula. Because the trial court used the wrong starting percentage (18% for one child rather than 25% for two), failed to state the pre-deviation amount, and failed to explain the deviation factors that produced $345, the Supreme Court reversed and sent the case back with instructions to follow the formula above. The Court also flagged an "anomaly": under its formula, Brett owes $577.90 for two children, but if there were only one child in Leslie's primary physical custody, he would owe $774.80. The Court noted that this is a matter for the legislatively created Committee to Review Child Support Guidelines to consider, since the Legislature in 2017 (through A.B. 278) directed that new guidelines be developed.

Michelle and Elvis Rivero divorced, and their divorce decree said they would share "joint physical custody" of their young child — but the actual schedule gave the child to Ms. Rivero five days a week and Mr. Rivero two days a week. Neither parent was ordered to pay child support. About a year later, Ms. Rivero went back to court asking for primary custody and child support, claiming Mr. Rivero rarely spent time with the child himself and lacked suitable living arrangements. The trial judge, Judge Miley, kept the joint-custody label in place, denied child support, sent the parents to mediation to work out a schedule, and eventually changed the schedule to an even 50/50 split, saying she was "just trying to find a middle ground." Along the way, Ms. Rivero asked Judge Miley to step off the case (a request called recusal), and when the judge refused, formally moved to disqualify her, claiming the judge was biased based on the parties' physical appearance. The chief judge rejected that motion as meritless, and Judge Miley then ordered Ms. Rivero to pay Mr. Rivero's attorney fees for having to fight a frivolous motion. On appeal, the Nevada Supreme Court used the case to answer a question Nevada law had never resolved: what exactly is "joint physical custody"? The court adopted Missouri's definition — an arrangement giving each parent "significant, but not necessarily equal" time with the child, structured so the child has "frequent, continuing and meaningful contact with both parents." In other words, joint custody does not require an exact 50/50 split, but each parent's time must be significant and meaningful. Applying that framework, the supreme court held the trial court went wrong in two ways. First, it labeled the arrangement joint physical custody without making specific factual findings to back that up. Second, it changed the custody schedule to an equal split without making specific findings that the change was in the child's best interest — the touchstone for all custody decisions. Both rulings were sent back for a do-over under the new definition. On child support, the court held that a parent may be entitled to support under Nevada's child-support statutes regardless of what the divorce decree says, and that a court departing from the statutory amounts must explain why in specific factual findings. Because the trial court did neither, that ruling was also reversed. The supreme court also announced a new math formula — a modified version of its earlier Wright v. Osburn approach — for calculating support when parents share joint custody but split time unequally, accounting for both differences in income and differences in time spent caring for the child. Finally, the court sided with the trial judges on the bias claims. A judge is presumed unbiased, and unhappiness with a judge's rulings is not a legally recognized ground for disqualification; the record contained no evidence of bias. The attorney-fee award stood as well: the court rejected Ms. Rivero's argument that a statute shielding parties from contempt punishment for seeking a change of judge also shields them from paying attorney fees for filing a frivolous disqualification motion.

This case is about which legal standard applies when a parent asks a court to take custody of a child back from a nonparent — here, a grandmother — after a court originally gave the nonparent custody in a contested case. In 1993, the child's mother was killed in a drive-by shooting; the father, Milton Jones, was shot in the head and hospitalized, and the child suffered minor injuries. An investigation indicated a rival gang was likely retaliating against Milton. The maternal grandmother, Mable Hudson, asked the court for custody. The district court found that Milton was an unfit parent and that extraordinary circumstances overcame the "parental preference" — the legal presumption that a fit parent should get custody of a child over a nonparent. The court awarded Mable and Milton joint legal custody, with Mable having primary physical custody and Milton having visitation. About ten years later, Milton asked the court to give him sole legal and physical custody, arguing that he had changed his lifestyle and was now living a productive, law-abiding life with his new wife. The district court interviewed the child, who repeatedly said she wanted to live with her father. The court found that Milton had turned his life around, stated that it was bound to apply the parental preference presumption, and restored sole custody to him. Mable appealed. The Nevada Supreme Court reversed. It held that the parental preference doctrine applies only to the initial custody decision between a parent and a nonparent — not to later requests to change custody. Once a court has already found a parent unfit or found extraordinary circumstances and awarded custody to a nonparent, the parent who later wants custody back must satisfy the same two-part test used in custody disputes between two parents: the parent must show that circumstances have materially changed and that the child's welfare would be substantially enhanced by the change in custody. The court distinguished earlier cases in which parents voluntarily and temporarily gave custody to relatives (for example, while dealing with imprisonment or drug addiction). In those situations, the court explained, parents keep the benefit of the parental preference when they seek to end the arrangement, because courts do "not want to discourage parents from willingly granting temporary guardianships, while working through problems in their own lives, if that is in the child's best interest." Milton's case was different: he did not voluntarily set up a guardianship, and a court had already found him unfit after a litigated dispute. The court also declined the State Bar Family Law Section's suggestion to adopt a burden-shifting approach that would blend the parental preference into the modification analysis. Quoting the Alaska Supreme Court, the Nevada court reasoned that "[h]aving once protected the parent's right to custody, at the risk of sacrificing the child's best interests, we should not then sacrifice the child's need for stability in its care and living arrangements by modifying those arrangements more readily than in a parent-parent case." Because the district court applied the parental preference instead of the two-part modification test, the Supreme Court reversed its order and sent the case back for further proceedings.

Thomas and Svetlana Potter married in 1994, had a child in 1995, and divorced shortly after the child was born. Svetlana was initially awarded primary physical custody, but in 1996 the parents agreed by stipulation to share joint physical and legal custody - meaning both parents shared responsibility for the child's day-to-day care. According to the record, the arrangement worked without custody problems from 1996 to 2003, with both parents actively involved. In 2003, Svetlana received a job offer from a California hospital for a registered nurse position at a higher salary than she was earning in Las Vegas, and she wanted to pursue a nurse anesthesiologist degree from a California school - a program not available in Las Vegas. She filed a petition under NRS 125C.200, Nevada's relocation statute, asking for permission to move to Corona, California with the child. Thomas opposed it, arguing that the Legislature amended the relocation statute in 1999 so that it no longer applied to joint physical custody arrangements, and that Svetlana would first have to win primary physical custody before she could seek relocation. The district court treated the case as an ordinary relocation petition under NRS 125C.200, analyzed the relocation factors from an earlier case called Schwartz v. Schwartz, granted Svetlana's petition, awarded her primary physical custody, and provided for significant contact and visitation between Thomas and the child. The Nevada Supreme Court reversed. It held that NRS 125C.200 does not apply when parents share joint physical custody. The statute's current text speaks only of "custodial" and "noncustodial" parents; an earlier version of the statute (formerly NRS 125A.350) had expressly covered "a parent having joint custody," but the Legislature removed that language. The court found the legislative history confirmed that the statute was intended to apply only to primary physical custody situations. Instead, the court explained the correct procedure: when a parent who shares joint physical custody wants to move out of Nevada with the child, that parent must file a motion for a change of custody under NRS 125.510(2), seeking primary physical custody for the purpose of relocating. The district court then decides, under the "best interest of the child" standard, whether the child is better off living outside Nevada with the relocating parent as primary physical custodian, or living in Nevada with the non-moving parent as primary physical custodian. The moving parent bears the burden of proving that living out of state with him or her serves the child's best interest. Because the district court applied the wrong statute, did not use the factors from Truax v. Truax, and made no finding that the move was in the child's best interest, the Supreme Court reversed and sent the case back for the district court to decide whether it is in the child's best interest to live in California with Svetlana or in Nevada with Thomas.