Senate Bill No. 66–Senator Jacobsen

Prefiled January 29, 1999

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Referred to Committee on Judiciary

 

SUMMARY—Adds adultery to list of causes for divorce and to factors for determining best interest of child in custody proceeding. (BDR 11-1043)

FISCAL NOTE: Effect on Local Government: No.

Effect on the State or on Industrial Insurance: No.

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

 

AN ACT relating to domestic relations; adding adultery to the list of causes for divorce; adding adultery to the list of factors that a court must consider when determining the best interest of a child in a custody proceeding; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

1-1 Section 1. NRS 125.010 is hereby amended to read as follows:

1-2 125.010 1. Divorce from the bonds of matrimony may be obtained

1-3 for any of the following causes:

1-4 [1.] (a) Insanity existing for 2 years prior to the commencement of the

1-5 action. Upon this cause of action the court, before granting a divorce, shall

1-6 require corroborative evidence of the insanity of the defendant at that time,

1-7 and a decree granted on this ground shall not relieve the successful party

1-8 from contributing to the support and maintenance of the defendant, and the

1-9 court may require the plaintiff in such action to give bond therefor in an

1-10 amount to be fixed by the court.

1-11 [2.] (b) When the husband and wife have lived separate and apart for 1

1-12 year without cohabitation the court may, in its discretion, grant an absolute

1-13 decree of divorce at the suit of either party.

1-14 [3.] (c) Incompatibility.

1-15 (d) Adultery.

1-16 2. As used in this section "adultery" means a voluntary sexual act,

1-17 including, without limitation:

1-18 (a) Ordinary sexual intercourse;

2-1 (b) Fellatio;

2-2 (c) Cunnilingus; or

(d) Anal intercourse,

2-3 between a married person and another person who is not the spouse of

the married person, irrespective of the gender or marital status of that

2-4 person.

2-5 Sec. 2. NRS 125.181 is hereby amended to read as follows:

125.181 A marriage may be dissolved by the summary procedure for

2-6 divorce set forth in NRS 125.181 to 125.184, inclusive, when all of the

following conditions exist at the time the proceeding is commenced:

2-7 1. Either party has met the jurisdictional requirements of NRS 125.020.

2-8 2. The [husband and wife] parties have lived separate and apart for 1

year without cohabitation [or they] , the parties are incompatible [.] or

2-9 either party has committed adultery. As used in this subsection,

"adultery" has the meaning ascribed to it in subsection 2 of NRS

2-10 125.010.

2-11 3. There are no minor children of the relationship of the parties born

before or during the marriage or adopted by the parties during the marriage

2-12 and the wife, to her knowledge, is not pregnant, or the parties have

executed an agreement as to the custody of any children and setting forth

2-13 the amount and manner of their support.

2-14 4. There is no community or joint property or the parties have executed

an agreement setting forth the division of community property and the

2-15 assumption of liabilities of the community, if any, and have executed any

deeds, certificates of title, bills of sale or other evidence of transfer

2-16 necessary to effectuate the agreement.

2-17 5. The parties waive any rights to spousal support or the parties have

executed an agreement setting forth the amount and manner of spousal

2-18 support.

6. The parties waive their respective rights to written notice of entry of

2-19 the decree of divorce, to appeal, to request findings of fact and conclusions

2-20 of law and to move for a new trial.

7. The parties desire that the court enter a decree of divorce.

2-21 Sec. 3. NRS 125.480 is hereby amended to read as follows:

125.480 1. In determining custody of a minor child in an action

2-22 brought under this chapter, the sole consideration of the court is the best

2-23 interest of the child. If it appears to the court that joint custody would be in

the best interest of the child, the court may grant custody to the parties

2-24 jointly.

2. Preference must not be given to either parent for the sole reason that

2-25 the parent is the mother or the father of the child.

2-26 3. The court shall award custody in the following order of preference

unless in a particular case the best interest of the child requires otherwise:

(a) To both parents jointly pursuant to NRS 125.490 or to either parent.

3-1 If the court does not enter an order awarding joint custody of a child after

3-2 either parent has applied for joint custody, the court shall state in its

decision the reason for its denial of the parent’s application. When

3-3 awarding custody to either parent, the court shall consider, among other

factors, which parent is more likely to allow the child to have frequent

3-4 associations and a continuing relationship with the noncustodial parent.

3-5 (b) To a person or persons in whose home the child has been living and

where the child has had a wholesome and stable environment.

3-6 (c) To any person related within the third degree of consanguinity to the

child whom the court finds suitable and able to provide proper care and

3-7 guidance for the child, regardless of whether the relative resides within this

3-8 state.

(d) To any other person or persons whom the court finds suitable and

3-9 able to provide proper care and guidance for the child.

4. In determining the best interest of the child, the court shall consider,

3-10 among other things:

3-11 (a) The wishes of the child if the child is of sufficient age and capacity

to form an intelligent preference as to his custody;

3-12 (b) Any nomination by a parent of a guardian for the child; [and]

(c) Whether either parent or any other person seeking custody has

3-13 engaged in an act of domestic violence against the child, a parent of the

3-14 child or any other person residing with the child [.] ; and

(d) Whether either parent has committed adultery.

3-15 5. Except as otherwise provided in subsection 6 or NRS 125A.360, a

determination by the court after an evidentiary hearing and finding by clear

3-16 and convincing evidence that either parent or any other person seeking

3-17 custody has engaged in one or more acts of domestic violence against the

child, a parent of the child or any other person residing with the child

3-18 creates a rebuttable presumption that sole or joint custody of the child by

the perpetrator of the domestic violence is not in the best interest of the

3-19 child. Upon making such a determination, the court shall set forth:

3-20 (a) Findings of fact that support the determination that one or more acts

of domestic violence occurred; and

3-21 (b) Findings that the custody or visitation arrangement ordered by the

court adequately protects the child and the parent or other victim of

3-22 domestic violence who resided with the child.

3-23 6. If after an evidentiary hearing held pursuant to subsection 5 the court

determines that each party has engaged in acts of domestic violence, it

3-24 shall, if possible, then determine which person was the primary physical

aggressor. In determining which party was the primary physical aggressor

3-25 for the purposes of this section, the court shall consider:

3-26 (a) All prior acts of domestic violence involving either party;

3-27 (b) The relative severity of the injuries, if any, inflicted upon the persons

involved in those prior acts of domestic violence;

3-28 (c) The likelihood of future injury;

3-29 (d) Whether, during the prior acts, one of the parties acted in self-

defense; and

3-30 (e) Any other factors which the court deems relevant to the

determination.

3-31 In such a case, if it is not possible for the court to determine which party is

3-32 the primary physical aggressor, the presumption created pursuant to

subsection 5 applies to both parties. If it is possible for the court to

3-33 determine which party is the primary physical aggressor, the presumption

created pursuant to subsection 5 applies only to the party determined by the

3-34 court to be the primary physical aggressor.

3-35 7. As used in this section [, "domestic violence"] :

(a) "Adultery" has the meaning ascribed to it in subsection 2 of NRS

3-36 125.010; and

(b) "Domestic violence" means the commission of any act described in

3-37 NRS 33.018.

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