Senate Bill No. 42–Senator Jacobsen
Prefiled January 24, 2001
____________
Referred to Committee on Judiciary
SUMMARY—Adds adultery to list of causes for divorce
and list of factors for determining custody of child. (BDR 11‑686)
FISCAL NOTE: Effect on Local Government: 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,
1-6 shall require corroborative
evidence of the insanity of the defendant at that
1-7 time, and a decree granted
on this ground [shall] must not
relieve the
1-8 successful party from
contributing to the support and maintenance of the
1-9 defendant, and the court may
require the plaintiff in such action to give
1-10 bond therefor in an 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
1-13 absolute 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;
1-19 (b) Fellatio;
1-20 (c) Cunnilingus; or
1-21 (d) Anal intercourse,
2-1 between a married person and another person who is not the spouse
of
2-2 the married person, irrespective of the gender or marital status of
that
2-3 person.
2-4 Sec. 2. NRS 125.181 is hereby amended to read as follows:
2-5 125.181 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
2-7 following conditions exist
at the time the proceeding is commenced:
2-8 1. Either party has met the
jurisdictional requirements of NRS
2-9 125.020.
2-10 2. The [husband and wife]
parties have lived
separate and apart for 1
2-11 year without cohabitation [or they]
, the parties are
incompatible [.] or
2-12 either party has committed adultery. As used in this subsection,
2-13 “adultery” has the meaning ascribed to it in NRS 125.010.
2-14 3. There are no minor
children of the relationship of the parties born
2-15 before or during the
marriage or adopted by the parties during the marriage
2-16 and the wife, to her
knowledge, is not pregnant, or the parties have
2-17 executed an agreement as to
the custody of any children and setting forth
2-18 the amount and manner of
their support.
2-19 4. There is no community or
joint property or the parties have
2-20 executed an agreement
setting forth the division of community property
2-21 and the assumption of
liabilities of the community, if any, and have
2-22 executed any deeds,
certificates of title, bills of sale or other evidence of
2-23 transfer necessary to
effectuate the agreement.
2-24 5. The parties waive any
rights to spousal support or the parties have
2-25 executed an agreement
setting forth the amount and manner of spousal
2-26 support.
2-27 6. The parties waive their
respective rights to written notice of entry of
2-28 the decree of divorce, to
appeal, to request findings of fact and conclusions
2-29 of law and to move for a new
trial.
2-30 7. The parties desire that
the court enter a decree of divorce.
2-31 Sec. 3. NRS 125.480 is hereby amended to read as follows:
2-32 125.480 1. In determining custody of a minor child in an
action
2-33 brought under this chapter,
the sole consideration of the court is the best
2-34 interest of the child. If it
appears to the court that joint custody would be in
2-35 the best interest of the
child, the court may grant custody to the parties
2-36 jointly.
2-37 2. Preference must not be
given to either parent for the sole reason that
2-38 the parent is the mother or
the father of the child.
2-39 3. The court shall award
custody in the following order of preference
2-40 unless in a particular case
the best interest of the child requires otherwise:
2-41 (a) To both parents jointly pursuant to NRS 125.490 or to either
parent.
2-42 If the court does not enter
an order awarding joint custody of a child after
2-43 either parent has applied
for joint custody, the court shall state in its
2-44 decision the reason for its
denial of the parent’s application. When
2-45 awarding custody to either
parent, the court shall consider, among other
2-46 factors, which parent is
more likely to allow the child to have frequent
2-47 associations and a
continuing relationship with the noncustodial parent.
2-48 (b) To a person or persons in whose home the child has been living
and
2-49 where the child has had a
wholesome and stable environment.
3-1 (c) To any person related within the third degree of consanguinity
to the
3-2 child whom the court finds
suitable and able to provide proper care and
3-3 guidance for the child,
regardless of whether the relative resides within this
3-4 state.
3-5 (d) To any other person or persons whom the court finds suitable
and
3-6 able to provide proper care
and guidance for the child.
3-7 4. In determining the best
interest of the child, the court shall consider,
3-8 among other things:
3-9 (a) The wishes of the child if the child is of sufficient age and
capacity
3-10 to form an intelligent
preference as to his custody;
3-11 (b) Any nomination by a parent of a guardian for the child; [and]
3-12 (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
3-15 (d) Whether either parent
has committed adultery.
3-16 5. Except as otherwise
provided in subsection 6 ,
[or] NRS 125C.210
3-17 [,] or 125C.220, a determination by the court
after an evidentiary hearing
3-18 and finding by clear and
convincing evidence that either parent or any
3-19 other person seeking custody
has engaged in one or more acts of domestic
3-20 violence against the child,
a parent of the child or any other person residing
3-21 with the child creates a
rebuttable presumption that sole or joint custody of
3-22 the child by the perpetrator
of the domestic violence is not in the best
3-23 interest of the child. Upon
making such a determination, the court shall set
3-24 forth:
3-25 (a) Findings of fact that support the determination that one or
more acts
3-26 of domestic violence
occurred; and
3-27 (b) Findings that the custody or visitation arrangement ordered by
the
3-28 court adequately protects
the child and the parent or other victim of
3-29 domestic violence who
resided with the child.
3-30 6. If after an evidentiary
hearing held pursuant to subsection 5 the
3-31 court determines that each
party has engaged in acts of domestic violence,
3-32 it shall, if possible, then
determine which person was the primary physical
3-33 aggressor. In determining
which party was the primary physical aggressor
3-34 for the purposes of this
section, the court shall consider:
3-35 (a) All prior acts of domestic violence involving either party;
3-36 (b) The relative severity of the injuries, if any, inflicted upon
the
3-37 persons involved in those
prior acts of domestic violence;
3-38 (c) The likelihood of future injury;
3-39 (d) Whether, during the prior acts, one of the parties acted in
self-
3-40 defense; and
3-41 (e) Any other factors which the court deems relevant to the
3-42 determination.
3-43 In such a case, if it is not
possible for the court to determine which party is
3-44 the primary physical
aggressor, the presumption created pursuant to
3-45 subsection 5 applies to both
parties. If it is possible for the court to
3-46 determine which party is the
primary physical aggressor, the presumption
3-47 created pursuant to
subsection 5 applies only to the party determined by the
3-48 court to be the primary
physical aggressor.
4-1 7. As used in this section [, “domestic violence”]
:
4-2 (a) “Adultery” has the
meaning ascribed to it in NRS 125.010; and
4-3 (b) “Domestic violence” means the commission of any
act described in
4-4 NRS 33.018.
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