Separate Maintenance

A “Separate Maintenance” Decree, sometimes (but improperly) called a decree of “legal separation,” can determine and settle spouses’ financial responsibilities to one another, and the possession and control of property.  Such a Decree can also specify the custody, visitation, and support of any minor children.  A Separate Maintenance Decree does not dissolve the marriage.

In practice, such proceedings are rare, and usually sought for religious reasons, or to prevent a loss of benefits or insurance that might occur upon divorce. The grounds are the same as those for divorce, plus the additional ground of “desertion by a spouse for a period of at least 90 days.” The filing of an action for separate maintenance is often met with a countercomplaint for divorce which, if granted, makes the separate maintenance action moot.

The courts appear to be authorized to grant to a party in a separate maintenance action any of the relief that the court could grant to a party in a divorce action, either preliminary or in final orders, including child custody, child support, spousal support, alimony, property division, and attorney’s fees and costs. No order in a separate maintenance action is effective beyond the joint lives of the parties.

The court can “change, modify or revoke” a separate maintenance decree at any time, at least prospectively, and a separate maintenance decree does not bar either party from bringing a subsequent action for divorce.

Where a separate maintenance decree has been entered elsewhere, the situation can be more complicated, where only one party to the earlier action moves to Nevada. Nevada must give full faith and credit to the foreign separate maintenance decree while the foreign jurisdiction must give full faith and credit to the subsequent Nevada divorce which terminates the marital relationship. If the state issuing the separate maintenance award did have jurisdiction over both parties, and the Nevada court issuing a divorce did not have jurisdiction over both parties, the Nevada court could not terminate a support order granted by that other state, and an order or decree purporting to do so would be void.

There is some question as to whether parties to a Nevada separate maintenance action can create permanent orders relating to property and alimony within the context of a separate maintenance action. In either case, such decrees do not always do so, and any matter not specifically dealt with remains in abeyance, reserved for any later divorce action filed by one of the parties. Since an entirely separate legal action must be filed to obtain a divorce, a party should consider whether a decree of separate maintenance action is worth pursuing if a future divorce is anticipated.

Separate maintenance actions are relatively rare in Nevada Family Law. Nevertheless, WILLICK LAW GROUP has litigated a number of such actions, where appropriate, and is well versed in the application of the relevant law on the subject.

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