Tune in as Black & LoBello offers free legal advice on a wide range of topics

Click here to listen to the Legal Hour on KDWN AM720 from July 31st, 2013 in which Managing Partner, Tisha Black Chernine, Esq. discusses eviction notice time periods (2:10), changes to AB 284 (5:00), latest Case-Shiller home price index report (8:10), unpaid HOA fees in collections (9:45), commercial properties in a divorce (15:30), how to check against wrongful foreclosure (19:45), bought and sold loans (25:40), buying and selling homes in Nevada (29:10) and loan documentation requests (32:35). 

Please tune in to AM720 KDWN’s “Legal Hour,” every Wednesday, from 9 AM to 10 AM.  Listen live on the radio or online.   Feel free to call in with your comments or questions at 702-257-5396.

To listen to past shows, visit our Media page.

Black & LoBello on AM720 KDWN

Tune in as Black & LoBello offers free legal advice on a wide range of topics

Click here to listen to the Legal Hour on KDWN AM720 from July 24th, 2013 in which Zarinah J. Muhammad,Esq., discusses the definitions of domestic violence (1:30), rebuttable presumption (9:30), domestic violence hearing (11:20), credible witnesses of domestic violence (18:45), primary aggressor of domestic violence (21:25), child custody vs. divorce (25:00), debt as community property (26:00), divorce in Nevada (27:00), child support obligation (30:30), child support modification (34:00) and determining child’s best interests (37:15).

Please tune in to AM720 KDWN’s “Legal Hour,” every Wednesday, from 9 AM to 10 AM.  Listen live on the radio or online.   Feel free to call in with your comments or questions at 702-257-5396.

To listen to past shows, visit our Media page.

Black & LoBello on AM720 KDWN

Tune in as Black & LoBello offers free legal advice on a wide range of topics

Click here to listen to the Legal Hour on KDWN AM720 from June 19th, 2013 in which Michele LoBello, Esq., discusses shielding children from effects of a divorce (1:20), handling kids between two separate households (6:30), child support (7:20), prolonging a divorce (10:30), child custody issues (17:30), talking negatively about spouses in front of children (21:30), working together for the children (28:30), how grandparents are involved (31:15) and after the divorce is finalized (37:00).

Please tune in to AM720 KDWN’s “Legal Hour,” every Wednesday, from 9 AM to 10 AM.  Listen live on the radio or online.   Feel free to call in with your comments or questions at 702-257-5396.

To listen to past shows, visit our Media page.

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Black & LoBello on AM720 KDWN

Tune in as Black & LoBello offers free legal advice on a wide range of topics

Click here to listen to the Legal Hour on KDWN AM720 from February 20th, 2013 in which Michele LoBello, Esq., discusses how divorce affects responsibility for a mortgage (1:20), modifying alimony requirements (5:05), claiming children on taxes between both divorce parties (8:50), alimony vs. child support (11:25), prenuptial agreements (12:30), different states’ divorce laws (20:40), determining child custody (24:00), collecting legal fees from opposing party (30:15) and the importance of communication between the two parties (33:30).

Please tune in to AM720 KDWN’s “Legal Hour,” every Wednesday, from 9 AM to 10 AM.  Listen live on the radio or online.   Feel free to call in with your comments or questions at 702-257-5396.

To listen to past shows, visit our Media page.

Tax Planning Before Divorce

Any lawyer who dispenses divorce advice should include in their initial consultation checklist a directive to the client to consult a tax professional before developing any strategy. Issues including timing of divorce, dependency exemptions, characterization of support payments, and division of assets and the consequences of various transfers must all be considered in determining what really constitutes an equitable financial divorce. This article will provide a starting point, but is in no way a complete list of tax issues and considerations.

First and foremost, the timing of divorce, and how each spouse will file before the divorce, should be considered. Before the court enters a final decree of divorce, this decision must be made since the filing status can materially affect the amount of the income tax liability. Generally, selecting “married filing jointly” allows for the smallest tax liability. Where both spouses have similar incomes, this is likely the way they should file. However, where there is a lack of trust or concerns about underreporting or other fraudulent activity, it is prudent to advise your client to seek advice from a professional independent of the soon-to-be ex-spouse.

Likewise, decisions will need to be made about the division of dependency exemptions, as well as characterization of support payments. Pre-divorce child and spousal support payments are not deductible by the paying spouse or includable in the receiving spouse’s income. However, post-divorce alimony payments are deductible by the payor and includable in the payee’s income. Thus, in deciding the final terms of a divorce, you must consider the true net effect of support payments. Additionally, depending on the income and tax bracket of each spouse, the ability to utilize dependency exemptions should also be considered.

Ultimately, there is a “most financially advantageous” division of assets, sharing of dependency exemptions and characterization of support payments as alimony versus child support. This is especially true where there is a wide disparity in the respective incomes of the spouses. It may very well be beneficial to allow the higher earning spouse to claim one or more of the parties’ children as dependents, thus allowing for an ability to pay less in taxes and correspondingly provide a greater amount of support to the lower earning spouse.
At the same time, you must determine the tax consequences associated with the transfer or sale of each asset in the community. Generally, transfers incident to divorce are not taxable events, but certain transfers may trigger tax consequences, including the division of certain retirement assets. A qualified domestic relations order may be required to ensure a tax-free transfer. However, these must be negotiated and drafted carefully, before a final decree is entered, so that each party fully understands the nature and extent of all retirement assets and each plan’s peculiarities. You should review previous year’s tax returns to identify not only assets and income, but also for any available loss carry forwards which may be equitably divided. Finally, you must compare like assets in determining an equitable division. The dollars in a 401(k) are not equal to the dollars in an investment account. Similarly, the stocks in an investment account may have different bases and, as such, better or worse tax consequences when eventually liquidated. A truly equal division of the community estate is only possible after the tax impact of each dollar in the community estate is considered.

Finally, whether the divorce is settled or presented to a judge at trial, you must be prepared to present this information to opposing counsel or to a judge or mediator. I recommend preparing a proposed decree of divorce or marital settlement agreement well in advance of the trial or mediation date. Your client should present this draft to their tax advisor, as the verbiage in an order can be just as important as the underlying concepts. In the event you must try the case, be prepared to present your proposal and to explain the underlying tax considerations. Some judges may not take judicial notice of the Internal Revenue Code or current tax rates. Don’t assume your judge understands all of these considerations, and be prepared to educate him or her with admissible evidence.

There are literally thousands of resources which provide comprehensive checklists on the tax considerations in divorce. Being familiar with these considerations is a must for competent family law practitioners. Nevertheless, since we are lawyers and not accountants, and likely not qualified to dispense tax advice, instructing a client to consult a tax specialist before proceeding with the divorce should occur the first time you meet a prospective client.

-Michele LoBello

For more family law information, please visit our exclusive family law site, www.blacklobellofamilylaw.com


Black & LoBello’s Family Law Site

The Black & LoBello Family Law site is up and running. Don’t worry, you can still visit our regular website as well. This site specifically addresses what our Family Law team practices exclusively for our clients.

To visit the Family Law site click here.

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John D. Jones, Esq. of Black & LoBello has written an article regarding alimony in Nevada which has been featured in the Nevada Family Law Report.  Click here to read the article.

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A Debtor’s Nightmare: Bankruptcy and Divorce

In these tough economic times people’s relationships and wallets have become casualties of this recession. As such, many couples contemplate bankruptcy and divorce. Before making a decision regarding either you should know how a bankruptcy and divorce impact each other.

Impact of Bankruptcy on Divorce

Upon the filing of bankruptcy by one or both spouses all community property becomes property of the bankruptcy estate. Generally speaking, community property is any property accumulated during the marriage. Any property that is property of the bankruptcy estate cannot be sold or transferred without prior court approval with some very limited exceptions. Thus, if one or both spouses filed bankruptcy prior to or during a divorce proceeding, a family court cannot award any property settlement pursuant to a divorce without first receiving bankruptcy court approval.

Further, once a bankruptcy is filed an automatic stay immediately protects the debtor from various activities including any action by a creditor to collect on their debt. In this regard, the automatic stay prevents a family court from awarding any property distribution in a divorce proceeding. However, the automatic stay does not prevent a spouse from seeking and obtaining a divorce or a court granting the award of child support or alimony.

If a spouse files for bankruptcy during the impendency of a divorce proceeding, the non-filing spouse can ask the bankruptcy court for relief from the automa tic stay. The relief sought will be simple, allowing the divorce proceeding to continue and the family court to adjudicate property distributions.

Impact of Divorce on Bankruptcy

As a result of a divorce proceeding one spouse may be awarded alimony, child support and a property settlement. First, alimony and child support debts are not dischargeable in bankruptcy. In other words, these debts will survive bankruptcy. Further, any separation agreement whereby a spouse agrees to be obligated to certain debt, or agrees to pay a certain amount to keep an asset, is also not dischargeable.

For example, in a separation agreement, the ex-husband agrees to pay $15,000 for equity in the house and he keeps the house. However, after paying only $7,500, the ex-husband files for bankruptcy. The remaining debt of $7,500 is not dischargeable. Also, if the property settlement is actually meant to be or acts like alimony or child support, it’s unlikely the obligation would be discharged in a post-divorce bankruptcy. To determine whether a property settlement is alimony or child support, a bankruptcy court will look at the following criteria:

  • do payments end or decrease after certain events happen such as remarriage or a child turning 18;
  • whether the obligation must be paid in installments or a lump sum;
  • if there are minor children involved;
  • the relative health and education of the parties; and
  • whether a need for support exists at the time of the divorce.

Lastly, a hold harmless or indemnity clause written into the divorce decree can also protect you. It requires your spouse to pay certain debts or repay you if a creditor makes you pay the debt. If your ex-spouse later files bankruptcy you can ask the bankruptcy court to enforce the indemnity agreement.

Therefore, without proper counsel, going through divorce and bankruptcy at the same time can be both confusing and highly damaging.

Randy M. Creighton, Esq.

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Please read the latest edition of You Have Been Served! by clicking here.  The issue focuses on Family Law issues and features Black & LoBello Parter Michele LoBello and Family Law Specialist John Jones.   Randy Creighton, bankruptcy attorney, also contributed an article focusing on the affects Bankruptcy and Divorce can have on each other.

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Must I Have a Prenup?

Many people believe that a prenuptial agreement is the only way to ensure a simple divorce if wedded bliss turns to dissatisfaction, but such an unromantic legal machination is not always necessary.  A prenuptial agreement might be necessary if either spouse owns a company prior to marriage, but it is not necessary to preserve the intent of the partnership known as marriage.

Most individuals planning to marry would agree that they do not want an interest in the assets their spouse owned prior to marriage, but they do expect their marriage to be a partnership wherein they build a future together.  The concept of marriage is, in fact, a romantic version of a legal partnership.  Both husband and wife bring to the table different qualities, skill sets, and financial resources.  It is possible to ensure that both the intent of the marriage and the spirit of the partnership are preserved. Under Nevada law, the definition of separate property (as opposed to community property) is any property owned by either spouse prior to marriage or received by them during the marriage via gift, inheritance or bequest. Therefore, as with a legal partnership, each spouse comes to the marriage with their own respective assets. Complications in the event of the dissolution of the marriage partnership (divorce) can only come when there has been a commingling of the property each spouse brought to the marriage with property they acquired during the marriage.

The definition of community property under Nevada law is any and all property acquired during the marriage and any earnings from employment during the marriage. It is very easy for a spouse, particularly a spouse who loves their partner, to commingle assets owned prior to marriage with assets earned or acquired during marriage. Nevertheless, strict separation of separate property and community property can be every bit as effective as a premarital agreement. Moreover, merely keeping one’s premarital property separate from community property is far more romantic than asking one’s fiancé to sign a premarital agreement.

Generally, the assets that parties bring to a marriage are in the form of a savings account or retirement account. The simple way to ensure that your separate property assets remain separate in the event of a divorce is to leave the premarital holdings in the accounts in which they originally sat prior to marriage. New accounts can be opened, and any earnings during the marriage should be deposited into those new accounts. Depositing marital earnings into premarital accounts can create difficult tracing issues which could jeopardize the separate property character of premarital assets.

In the event either spouse owns a home which actually has equity, that spouse should be aware that the paydown on the mortgage and improvements on the house paid for with monies earned during the marriage, could create a community property claim on what would otherwise be a separate property asset. As it pertains to such a residence, it is also important to note that even if a refinance is sought during the marriage, any refinance that would obligate a party’s spouse to the mortgage will also require the property be conveyed into joint tenancy.  Most transactions of this sort create a presumption that the transfer was intended to be a gift.  For the most part, any transfer from a separate property account or asset into joint tenancy will be deemed a gift from the transferring spouse to the community.

Absent a premarital agreement, the best way to limit potential claims and litigation in the event of a divorce is to ensure that no commingling occurs and that the entirety of the marital estate is comprised of assets or income acquired during the marriage.  Nothing prevents one spouse from being generous with their separate property by conveying the same into joint tenancy, but it is important for that spouse to know that by doing so, he or she is creating a gift which will likely be enforced in the event of divorce.  By simply leaving premarital assets as they are after marriage, either party can obtain most of the benefits of a premarital agreement without destroying the romance of marriage.

John D. Jones, Esq.

Black & LoBello on the Radio

Click here to listen to the Legal Hour on KDWN AM720 from August 22nd, 2011.  Christopher Phillips, Esq. hosts with guest lawyer Michele LoBello, Esq., fellow partner at the law firm Black & LoBello. Mrs. LoBello talks about the effects of the economy on trends in divorce and custody,  tips on pre-nuptial agreements, adoptions within a family and drug testing to determine custody.

Please tune in to AM720 KDWN’s “Legal Hour,” everyday, from 9 AM to 10 AM.  Listen live on the radio or online.   Feel free to call in with your comments or questions at 702-257-5396.

John D. Jones, Esq., of Black & LoBello in Las Vegas, Nevada explains the difference between the different mediations available in a divorce or domestic relations case and the benefits of each.

Bankruptcy and Divorce Seminar

Black & LoBello will host a seminar discussing Bankruptcy and Divorce on February 25th, 2011 at 10 AM.  This seminar is open to anyone seeking answers to the following questions:

• Can I file for bankruptcy during my divorce?
• Is it better to file before or after my divorce?
• What if my spouse files and I don’t, or vice versa?
• If my ex-spouse filed bankruptcy, am I liable for debts he/she agreed to be responsible for in the divorce agreement?

Seating is limited.  Please RSVP to [email protected]

Many people do not understand the difference between divorce and legal separation, also known as separate maintenance.  In a divorce, the martial relationship is completely terminated. Community assets and debts are divided, child custody arrangements are formulated, and, if appropriate, spousal support is awarded.  For the purposes of a legal status, a person is then “divorced.”   In an action for separate maintenance, parties’ assets and debts are divided and custody arrangements are determined.  However the two parties are not officially divorced and, for all intents and purposes, their legal status remains “married.”

In Nevada, parties may seek a legal separation anytime they have a cause of action for divorce.  The two grounds for divorce in Nevada are 1) incompatibility and 2) living separate and apart for over one year.   In addition to these two grounds for obtaining a legal separation, spouses may also seek to become legally separated if one has been deserted by the other for a period of 90 days or longer.

People usually chose to obtain a legal separation as opposed to a divorce for one of two reasons.  First, some people’s religious beliefs prevent them from obtaining an actual divorce.  In this case, people may choose to divide their community assets and devise a custody arrangement. However, they do so with the understanding that they are still technically married according to their religion and they have agreed that neither will ever re-marry.

Second, people chose to legally separate when they are not sure they want to officially divorce but have decided to live apart for an extended period of time.  These people usually decide to officially end the “marital community,” so they will no longer be able to jointly accumulate community assets or community debts.

Amy M. Friedlander, Esq.

Boy Holding Dad's handWhen the parents of a child live in different states, and custody or support issues arise, you must take great care before hiring a lawyer to represent you in the case.  Often, there are two or more possible states that may appear to have jurisdiction over the issues.  These issues can be very complicated.  Questions regarding jurisdiction are not subject to general rules but are instead fact specific and dependent on the application of complex statutes and rules.

It is important to consult with an attorney prior to filing an action.  An action filed in an inappropriate jurisdiction is merely a waste of money.  Timing can also be very important in custody jurisdiction disputes.  You should consult an attorney immediately if you are involved in a situation where two parents reside in different states. 

Lastly, all possible outcomes must be discussed and a clear understanding of the risks involved in filing a child custody or support action in any potential jurisdiction must be explained to you by an attorney.

Kari T. Molnar, Esq.

Can You Get Divorced in Nevada?

Divorce decreeIn order to be divorced in Nevada, the state Court must first have “jurisdiction”.  In Nevada, the state court has jurisdiction if either the Plaintiff or Defendant has ”resided” in Nevada for the six weeks leading up to the filing of a Complaint for Divorce.    This six week requirement defines “residency” and is often times abused by individuals from other states with more stringent divorce laws.  It is not unusual for an individual to come to Nevada and set up a sham residence in an attempt to meet the residency requirements necessary to obtain a divorce.

If such jurisdictional conflict exists, it is crucial that you consult with an attorney immediately.  Failure to raise jurisdictional objections prior to responding to a Complaint for Divorce or appearing in Court may result in you being subject to the jurisdiction of the Court regardless of such jurisdictional defenses, depending upon the individual circumstances of your case.


Annulments in Nevada

Q.  What is an annulment?

A.   In some situations, the Court may dissolve a marriage by an annulment, which results in the marriage being treated as if it never existed. A party to a marriage may be granted an annulment if, at the time of the marriage, either party lacked mental capacity to enter the marriage, or if one or both parties were intoxicated under duress, or if the marriage was entered based upon certain types of mistake or fraud. 

To qualify to seek an annulment in Nevada, the law requires that either the marriage occurred in Nevada or that the petitioner be a resident of Nevada. The Court has a great deal of discretion to determine whether to grant a annulment, as opposed to a divorce. Generally, an annulment is more likely to succeed in a short-term marriage. As such, when a party to a marriage discovers the grounds for the potential annulment, he or she should immediately consult an attorney and determine whether and how best to proceed, so as to increase the likelihood of succeeding on the petition.

Black & LoBello’s family law attorneys are familiar with not only the laws of this State, but also the local Court system. In the event you are seeking to dissolve your marriage by annulment, we have the experience to ensure that your case is presented properly and efficiently, which will increase the likelihood of dissolving your marriage by annulment rather than by divorce.

Michele Touby LoBello, Esq.

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