‘Til Death Do Us Part? Practical Considerations When the Grim Reaper Looms Over Your Divorce Case

By Brian E. Blackham and Laura A. Deeter


© 2013 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (August 2013, Vol. 34, No. 8). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

Perhaps no other practice area offers the potential for crossover, and sometimes conflict, with various other areas of the law than does domestic relations practice. Family law practitioners must possess the skills and knowledge to recognize, as well as to anticipate, a host of other issues related to bankruptcy, taxation, personal injury, business structures, domestic torts, trusts, and even criminal matters. Likewise, family lawyers must also be prepared to deal with the impact that a party’s death (present or prospective) can have on a divorce matter. What follows is a brief overview of some of the death-related issues that can arise before, during, and after a divorce.

When the divorce outlives the party
Sometimes death will beat the divorcing party to the punch and intervene in the middle of a divorce action. In this instance, counsel or the surviving party must file a suggestion of death and attach the deceased party’s death certificate. The death of the party divests the family court of jurisdiction and the case is then closed.

Estate planning and the great beyond

Should death occur after the divorce case is concluded, there can still be disputes among family members over the divorced party’s assets. Such disputes often occur when a divorced party dies before updating his or her estate plan to disinherit a former spouse. As a result of legislation enacted in 2011, NRS 111.781 now provides that a decree of divorce automatically revokes any right a spouse has under a will or revocable trust to receive assets or serve as a personal representative. Beneficiary designations on bank accounts and other items are also revoked. A decree of divorce also automatically changes any property held as joint tenants or community property with right of survivorship to equal tenancies in common.

However, it is still prudent to advise your client to change their estate plan and beneficiary designations upon (or even before) filing for divorce, and such changes are permissible in most instances. In fact, NRS 111.781 specifically states that beneficiary designations can be changed regardless of the issuance of a joint preliminary injunction, unless the family court enters a specific order stating that beneficiary designations cannot be changed.

An important caveat when modifying an estate plan or beneficiary designation during a divorce is that a party can only bequeath that party’s interest in the community property. As such, even if all bank accounts were held in one spouse’s name and that spouse designates a beneficiary for every account, that spouse can give no more than their one-half community property interest. Regarding beneficiary designations, federal law will preempt state law if the state and federal statutory provisions are inconsistent. For example, if the Employee Retirement Income Security Act (ERISA) mandates that a spouse be named as a beneficiary of a retirement plan or pension, federal law will prevail.

Legal separation (not)
NRS 125.210(4) states that no order or decree for separate maintenance is effective beyond the joint lives of the parties. Thus, while there may be some contractual or other remedies available to a surviving spouse seeking to enforce the awards made in a separate maintenance action, strictly speaking, the decree of separate maintenance is vacated upon the death of either party. This is just one of a litany of other reasons why a lawyer seeking finality for the client should encourage him or her to file for divorce rather than for separate maintenance.

Child support from six feet under
NRS 125.510(9)(a) provides that, absent a separation agreement stating otherwise, the obligation for care, education, maintenance, and support of any minor child ceases upon the death of the person to whom the order was directed. This is in apparent conflict with NRS 125B.130(1), which states that the obligation of a parent is enforceable against his estate. While not outright prohibiting the enforcement of child support obligations against an obligor parent’s estate, the Nevada Supreme Court “urge[ed] caution” in making child support awards enforceable against the obligor’s estate, noting that the court has other alternatives available to it, such as ordering the obligor to maintain a life insurance policy with the child as a beneficiary or establishing a trust for the benefit of the child. Bailey v. Bailey, 86 Nev. 483, 488, 471 P.2d 220, 223 (1970). However, as with any liability, child support arrears accrued prior to the obligor’s death should be enforceable against his or her estate as a creditor’s claim.

In light of the legislative conflict and the Nevada Supreme Court’s position on the subject, a child support recipient cannot rely on a court to enforce an ongoing child support obligation against the obligor’s estate. Therefore, if feasible, counsel for a recipient should request that either life insurance be maintained or a trust established to ensure that some degree of support is available to the children should the obligor pass away.

Child support does not necessarily terminate upon the death of the recipient. A child support order “follows the child” to the person who obtained lawful physical custody of the child. NRS 125B.040(3). Thus, if the parent entitled to receive child support dies and someone other than the obligor parent takes lawful custody, that third party would be entitled to receive child support from the obligor parent.

As the purpose of child support is to provide care, support, and maintenance of a child, the obligation to pay such support terminates upon the child’s death. However, parents are liable for the child’s funeral expenses. NRS 125B.020.

Getting your alimony payment before the Grim Reaper
Unless otherwise ordered by the court, alimony that is paid in specific periodic payments terminates upon the death of either party. NRS 125.150(5). There is no authority in Nevada that bars the enforcement of lump sum alimony against the obligor’s estate or in favor of a deceased recipient’s estate. As with child support arrears, periodic alimony arrears accrued prior to the obligor’s death should be enforceable against his or her estate. Also, counsel for an alimony recipient should request that either life insurance be maintained on the obligor’s life during the alimony period or pending full payment of a lump sum alimony award.

Where is probate court?
This articles does not provide an exhaustive list of issues or remedies and there are certainly many additional areas that can be covered regarding death and divorce. Planning ahead during the divorce proceeding is crucial to ensuring that your client’s needs are met. Even something as simple as a holographic will can prevent many of these problems from arising in the event that a divorce outlives the party. If not, probate court is conveniently located in the family court building, which is where you will be resolving these disputes.

Brian E. Blackham is an associate attorney with Kunin & Carman and a certified family law specialist in Nevada. Laura A. Deeter is an associate attorney with the law firm of Kunin & Carman practicing in the areas of probate, guardianship, and family law.


Safety Planning for Attorneys Representing Victims of Domestic Violence

By April Green

© 2013 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (August 2013, Vol. 34, No. 8). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

Representing victims of domestic violence is always serious business. However, when the level and type of harm indicates high risk for victim fatality, the “antennae” of the attorney should go up exponentially. After hearing the victim’s story, common sense will usually tell you if the victim is in grave danger. There are, however, tools to help the practitioner determine if the victim is at high risk for fatality. The State of Nevada leads the nation in women killed by men and has held the top position for five of the past six years according to the Violence Policy Center. “Much more must be done to protect women and prevent domestic violence that too often escalates to homicide.” Press Release, Violence Policy Center, Nevada Ranks #1 in Rate of Women Murdered by Men for the Third Year in a Row (Sept. 19, 2012). Attorneys representing domestic violence victims in family court should zealously advocate for the safety of victims as a direct response to the magnitude of the problem that we have here in Nevada. Domestic violence is the leading cause of injury to women between the ages of 15 and 44 in the United States, more than car accidents, muggings, and rapes combined. Staff of Senate Comm. on the Judiciary, 102d Cong., Report on Violence Against Women (Comm. Print 1992).

Lawyers representing domestic violence victims should be aware that separations, particularly final separations, are statistically the most dangerous time periods for victims. The period of separation typically coincides with the time the victim seeks legal help. Accordingly, the first thing a lawyer should do in separation cases is to assess whether the victim is in immediate danger. Common indicators or common sense suggest whether the victim is at a high risk for fatality or grave harm. There are a number of “high risk assessments” that are available, such as the “Danger Assessment” by Jacqueline C. Campbell, Phd., R.N., which can be found at www.dangerassessment.com to help determine the level of danger the client may be in. Also, the lawyer’s own judgment and experience are important and are likely to identify danger indicators such as stalking, access to firearms, obsessive behaviors, extreme control, or disregard for court orders such as protection orders.

Once the lawyer determines that the client is at high risk for danger, the lawyer should take steps to maintain client safety. If the client does not have a protection order, in most cases counsel should direct the client to apply for one. The application narrative should include a full description of incidences which fall under NRS 33.018, which defines what acts constitute domestic violence in Nevada such as assault, battery, force, threats of force, sexual assault or false imprisonment. The client’s narrative should highlight both the most extreme incidences as well as the most recent events. Having an attorney at a protection order hearing is particularly helpful to victims.

Attorneys representing high risk domestic violence victims should also assess at the onset whether the abuser knows the client’s residence or safe location. If so, the attorney could refer the client to local domestic violence organizations to explore housing options, such as shelter or transitional housing, as well as safety planning, counseling, social service applications, and more. (Safe Nest (702) 877-0133; Safe House (702) 451-4203; Safe Faith United (702) 685-1500). If the victim’s risk for harm is so extreme that they cannot safely remain in Las Vegas, counsel should discuss and pursue relocation.

Each victim should develop a personalized safety plan. Domestic violence shelter advocates routinely work with victims on these plans. Common safety planning tools prior to separation include determining where weapons are located in the home for hiding or safe removal, keeping important phone numbers nearby, putting a bag of necessary items together to be kept at a safe or accessible location, knowing how to get out of the home safely and developing excuses to get out of the house to escape. These tools might include such tactics as taking out the trash, walking the family pet or going to the store, creating a code word to let friends and family know you are in danger, backing into the driveway, and leaving the driver’s door unlocked. If a victim is considering leaving, she should speak to supportive friends and family to develop a list of places where she could stay temporarily if she actually leaves, obtain a bank account or credit card in her own name, and gather important vital records and documents and leave them at a safe location from where they can be retrieved. If the victim has left the home, in addition to the tools previously discussed, she might de-activate GPS tracking on her cell phone, avoid the stores and businesses she used prior to leaving, and tell responsible people at work and home that she is separated from the abuser and that the abuser has no reason to be at the dwelling or to come to her job. Also, the victim should always keep any protective order in her possession.

The legal options for victims in these predicaments are not the same in every case, but appropriate remedies can be vitally important. Attorneys practicing in this area should become familiar with jurisdiction statutes such as the Uniform Child Custody Jurisdiction and Enforcement Act, abduction statutes, relocation laws, and domestic violence presumptions. Common litigation tools available to attorneys representing victims are ex parte motions (limited), emergency motions, name changes, the confidential address program, suspension of visitation, supervised visitation, relocation (temporary or permanent), and enforcement of orders through the Attorney General’s office.

Until danger is no longer present, assuring the safety of the victim and any children should be the priority of the court. The attorney for the victim can and should advocate that safety is in the best interest of the children. Parties whose behavior reaches the point of predictable danger violate our laws and arguably abdicate their right to contact with children. Attorneys representing victims should provide holistic services to victims which are more involved than basic litigation. Providing holistic services entails taking the time to assess danger, making appropriate referrals, and approaching the legal work in a manner specifically geared to the special safety needs of the client. In doing this, we all do our part in reducing Nevada’s long standing status as number one for homicides of women by men.

April Green is the directing attorney of the Domestic Violence Project at Legal Aid Center of Southern Nevada and has been an attorney for 26 years. April sits on the Attorney General’s Fatality Review Board and is the Chair of the Nevada Network Against Domestic Violence.