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702-DIVORCE in the National News

I was asked to comment on why Nevada has the highest divorce rate. Here’s the article that made the national news:

http://www.forbes.com/feeds/ap/2009/09/24/business-financial-impact-us-divorce-nevada_6928067.html

Going Green

I recently saw this documentary on Global Warming and have decided to get MORE pro-active in our firm’s efforts in going “green.” I say MORE proactive, because I have always been a fan of technology and using technology to become more efficient and less wasteful, but like anything else, there is always room for improvement.

Here is what our firm is currently doing:

1) e-file:
We e-file everything that we can. Not everything can be e-filed such as Complaints (need a case number to e-file) and Motions (I want the hearing date and time to be on what we serve the opposing party). But everything else, including Answers, can be e-filed. The Answer’s filing fee can be e-filed as long as the filing fee is sent the next day referencing the case name and file number.

2) Electronic Faxes:
Our faxes for directly to our photocopier which is networked with our server. The fax comes to the paralegal via a PDF attachments, is saved to the Correspondence folder of the case on our server, and is forwarded to the attorney(s) on the case. This cuts down on “junk” faxes and also paper being printed for every fax even if it is case related, because many times it is not necessary to print out a one or two page fax to read its contents.

3) Scan Copies to Clients:
We courtesy copy all pleadings, discovery, and correspondence to our clients via PDF from email. This cuts down on wasted paper, envelope, and postage costs. And, it is also a great Receipt of Copy should a client ever dispute receiving the copy. Also, as a side note, I believe clients should always receive a courtesy copy so they know what work is being done for them, and they are apprised of the case.

4) Invoice Clients electronically:
We have in our retainer agreements a provision allowing our firm to send invoices to our clients’ email accounts. Our accounting system (Quickbooks) has a functionality for electronic invoicing. Less postage and envelope costs are a huge plus in addition to bill getting our quicker. Takes less time to invoice in Quickbooks than to print, stuff, and seal envelopes.

Here are some of the efforts we are initiating today to make our firm more environmentally conscious:

1) We will Consent to Service via Electronic Means:
Pursuant to NRCP 5(b)(2)(D), a party’s counsel may only be served electronically if he/she consents to such electronic service. A pleading must be filed with the court allowing such service by electronic means. We called Wiznet to discuss some of the logistics, and they said that while many people e-file pleadings, very few family law firms consent to service via electronic means. While we will consent to service, this does not mean that the other side has to serve us by electronic means. Many law firms in Las Vegas do not have Wiznet, and though service is not required through Wiznet, it certianly makes it a lot easier to just e-file and check the box for who to serve.

We will also request all of our opposing parties to consent to service via electronic means. And, at the next Bench Bar meeting, I will be asking whether the judiciary would be willing to set up courtesy copy service by electronic means. My associate, Amber Robinson, is a former Family Court Judge law clerk to two Family Court Judges. She believes that the JEA’s and the law clerk might not want courtesy copies to be served electronically, because that would mean more work added to their already overburdened work load. Currently, courtesy copies are dropped off in the judge’s boxes all printed out and stapled. If they were sent electronically, the law clerks or JEA’s would have to print out and staple the emailed pleading which could take a long time to download due to the number of pages of some of the pleadings that have many exhibits. That would also then require them to get more paper and toner from the supply closet more often. I believe, however, that there would be less cost (less paper, envelopes, runner charges) if the courts would allow courtesy copies to be served electronically, and I suggest this as a topic of discussion for the next Bench Bar Meeting.

2) Recyled Paper:
Easiest the most used item in our office is paper. While we have never used the fancy expensive bond paper for court filings (especially since we e-file almost everything), we are investigating the use of recylced paper. We have certain legibility requirements, and if they are met by using recylced paper, which I have no reason to believe that they will not be, then we will change to using recylced paper.

3) Trash recylcing:
We are also checking with our disposal company to bring out recycling containers.

Every little bit helps, I would encourage you all to help out. I’ve never been a staunch environmentalist, but I have always been a big promoter of technology, especially when it improves my bottom line and makes me more efficient. Here, we can accomplish both by adopting technology to improve both our efficiency and better our environment.

I welcome thoughts on how your firm is improving efficiency or bettering the environment.

Child Support Modification – Is Potter Right?

At a recent hearing to modify child support, Judge Potter denied my request on behalf a divorced mother to increase child support beyond the $1,000.00/month (more than the statutory max of $969.00) she was already receiving. The parties divorced in 2000 and were awarded Joint Physical Custody and mom received $1,000.00. The parties stipulated to mom now having primary physical custody but dad refused to an increase in child support. Dad is a wealthy real estate developer, though he says that he is not as wealthy as he was in 2000 when the parties were divorced. I cited Herz v. Gabler-Herz, 107 Nev. 117 (1991) for the proposition that the court can deviate from the statutory max based upon father’s substantial net worth and the disproportionate time spent by the child with mom/dad. Potter ruled at the motion hearing that child support cannot be changed because:

1) economic times of different now than in 2000 (though no exhibit evidence was presented)
2) father’s net worth in excess of $15 million today as given on his Financial Disclosure Form was not liquid – give me an order to liquidate the property and I’ll make it liquid.
3) Herz does not give him enough to go on
4) He cited Lewis v. Hicks, 108 Nev. 1107 (1993), Love v. Love 114 Nev. 572 (1998), and Barbagallo v. Barbagallo, 105 Nev. 546 (1989) for the propositions that the fixed costs of raising a child do not increase when custody is changed from joint to physical, the needs of the child have to demonstrated not to be met if deviating from the formulatation.
5) Judge Potter also pointed out that the divorce decree does not directly tie the $1,000.00 a month child support to the joint physical custody and that dad is already obligated to pay the private school tuition under the decree

In another case before Judge Teuton, the husband was ordered to pay in excess of the $969 presumptive max based upon Herz and dad’s wealth.

I was always told that Judge Potter was pro stay at home mom, but definitely not in this case. Is Judge Potter right? I’ve read all the cases cited by Potter, and I think that where one spouse has substantial wealth, Herz and Love (which states “Greater weight must be given to the standard of living and circumstances of each parent, their earning capacities and the ‘relative financial means of parents’ than to any of the other factors [of NRS 125.080(9)]“

Awarding Attorneys’ Fees

At the last Bench/Bar meeting on Thursday, 05-21-09, a discussion was raised among the judges about how to get attorneys’ fees award as a sanction against opposing party when the opposing party brings a motion or opposes a motion in bad faith. There are several bases for an award of attorneys’ fees/costs in the family law arena:

1) NRS 18.010(2)(b) – bad faith litigation, no reasonable ground or to harass
2) EDCR 7.60(b) – frivolous, unnecessary, or unwarranted
3) NRS 22.100(3) – contempt
4) NRS 125B.140(2)(c) – failure to pay child support
5) Sargeant v. Sargeant, 88 Nev. 223 (1972) & NRS 125.040 – temporary order in situations of unequal earnings to get the spouses to trial on equal footing
6) Offers of Judgment for Division of Marital Assets pursuant to NRS 125.141
7) NRS 125.150(3) – If Attorneys’ Fees are in issue in the pleadings. See Leeming v. Leeming, 87 Nev. 530 (1971)(affirming award of attorney fees for post-judgment motion in divorce action); Love v. Love, 114 Nev. 572 (1998).

At the Bench/Bar, an attorney discussed how some judges, while making a Sargeant award, defer the actual payment of attorneys’ fees/costs until trial and what a disservice that was to the spouse that should have received the award and how that would negatively affect the outcome of the case.

Judge Henderson raised the issue of whether we should have any automatic “prevailing party” award of attorneys’ fees/costs in motion and it seemed that the consensus was “no” as that would have a chilling on the litigation process and that many motions (ie. an opposition to a relocation) or oppositions while one party would clearly prevail would still be fought in good faith by the other party.

Personally, I would just be happy if judges awarded attorneys’ fees/costs where there is bad faith. However, I guarantee that what I think is bad faith is probably different than what the judge will think is bad faith, and I probably think there is bad faith much more often than a judge would. Nonetheless, the statutes are there for a reason and NRS 18.010 even discusses the legislative intent that attorneys’ fees should be award to discourage “unsportsmanlike conduct.”

Finally, there was a great point made at the end which I am in complete agreement. When the judges do award attorneys’ fees/costs, they need to award it more than the typical $1,000/$1,500 award. You can’t even bring a motion or an opposition and attend a court appearance for $1,000/$1,500.

What are your thoughts on the matter? What happens in other jurisdictions?

Child Support Penalty Statute–DA interpretation vs. Marshal Law Program

Here is Marshall’s response:

An attorney has apparently been circulating to various attorneys around the state some pieces of a recent district court decision. I thought those who are doing support calculations would want to know how this affects what we do in Family Court, and what is going to happen next. For convenience, a copy of the entire decision in one piece is attached.

Marshal S. Willick, Esq.

Child Support Penalty Statute–DA interpretation vs. Marshal Law Program

Below, I have cut and paste and email I received from Attorney Gret Muirhead regarding the Marshal Law Calculations. In all fairness, I will post Marshall’s rebuttal next. The entire decision will be in Marshall’s rebuttal.

Dear Counsel:

Greta Muirhead, Esq.