If you are facing divorce and are the primary wage earner in the family, you need to come to the realization that you will likely be required to pay temporary spousal support to the dependent spouse pending finalization of the divorce. You may also have to front the attorney’s fees for both sides. Absent strong facts showing that your spouse could earn a decent living and is choosing not to, i.e. “willful unemployment”, you will likely be required to pay your spouse one half of the disposable income. This is true even if your spouse is not really in need (i.e. has the financial assistance of other family members). NRS 125.040 authorizes Nevada courts to make orders regarding spousal support, child support and attorney’s fees pending finalization of the divorce. In other words, in any divorce action the Court has discretion to order one party to pay the other for temporary maintenance of the family and for attorney fees so that the other party may defend the divorce action. This happens even in marriages of short duration. There is no set and precise formula for calculating temporary support and the judges often differ in their approach. Parties are often living on their monthly income prior to separation and do not have any excess income. After separation, the same income must now support two households. Although the dependent spouse has a genuine need, the wage earning spouse may not have the ability to pay. In court, this scenario typically results in the Judge reviewing the parties’ financial declarations and determining for the parties which expenses are discretionary. Things like TV, internet and gas, which most people would consider necessary expenses, are often classified as discretionary in order to make income available for temporary support. The duration of temporary support is typically until the divorce is final. As a result, temporary support is often set in order to incentivize settlement. In practice in order to save on attorney’s fees fighting a losing battle, I usually advise my clients who are the primary wage earners to agree to a reasonable temporary support amount and voluntarily make this monthly payment. This also allows them to save face with the Judge at the first conference. It is difficult to defend a client who has left his family without financial assistance after separation.
Jessica H. Anderson
Divorce Attorney Reno, NV