FORREST VS. FORREST (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

Per Curiam. All property acquired after marriage is presumed community property, rebuttable only by clear and convincing evidence, NRS 123.220; Cord v. Cord, 98 Nev. 210, 644 P.2d 1026 (1982). A valid deed showing title in joint tenancy is the clear and certain proof needed to overcome that presumption and raises a rebuttable presumption of separate property, Waldman v. Waldman, 97 Nev. 546, 635 P.2d 289 (1981); a spouse's opinion as to character 'is of no weight whatsoever,' Peters v. Peters, 92 Nev. 687, 557 P.2d 713 (1976). Because neither party introduced the deed, the residence had to be presumed community; the Court remanded for reconsideration of character, allowing the husband to introduce evidence of joint tenancy. On alimony, the Court reaffirmed that there are limits on the district court's discretion; among the matters to be considered are the Buchanan factors (financial condition, nature and value of property, contributions, duration of marriage, and each party's income, earning capacity, age, health, and ability to earn), Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1 (1974). Where the record does not indicate the court gave adequate consideration to those factors in denying alimony, remand is required. Alimony is incidental to a divorce under NRS 125.150(1) and need not be specifically pleaded; the issue was tried by consent under NRCP 15(b). Property acquired after an informal separation but before divorce is community property absent a written agreement between the spouses, a decree of separate maintenance, or an authorization under NRS 123.190, NRS 123.220, 123.130; the mobile home was therefore community property, and the district court's implicit conclusion that informal separation dissolved the community was error. Retirement benefits are divisible as community property to the extent based on services during marriage, In re Marriage of Gillmore, 629 P.2d 1 (Cal. 1981), but the wife had adduced insufficient evidence; on remand she may introduce further evidence.

In plain language

The Forrests married in 1955 and separated in 1973, living apart for years before their case went to trial in 1981. The wife had asked for the family home in Sparks and modest maintenance; the husband claimed the home was held in joint tenancy (separate property) rather than community property, and he had bought a mobile home after the separation. The trial court decided the home was joint tenancy - even though no deed was ever put into evidence - ordered it sold or bought out, awarded no alimony, and made no ruling on the mobile home. The Nevada Supreme Court reversed. The Court explained that all property acquired during marriage is presumed community property, and that presumption can only be overcome by clear and convincing evidence. A valid deed showing joint tenancy is the kind of clear proof needed; a spouse's mere opinion about whether property is separate or community carries no weight. Since no deed was in the record, the home had to be presumed community, and the case was sent back so the husband could try to prove joint tenancy if he could. The Court also held the trial court had to actually consider the required factors before denying alimony (alimony is part of a divorce and need not be specifically pleaded), and that the mobile home bought after an informal separation - with no written agreement or decree of separate maintenance - was community property. Retirement benefits earned during the marriage are also divisible, but the wife had not yet produced enough evidence about them.