Do You Have Residency in Nevada?

**Late January 2017 Update**

[Editor's note]

Below an excellent primer on Nevada citizenship written by friend of firm Ethan Featherstone. Assuming you are an American citizen, the question of citizenship in Nevada was difficult to define by statute, as you will see below.

Bottom line: it's a question of your personal intent. If you intend for Nevada to be your primary residence, so long as you live here, there shouldn't be a problem.¹⁾You still are required to timely register.

There's been some talk recently about folks that are registered to vote in 2 different states.

I'll cut through the noise for you; that's perfectly fine. People move. It is not illegal to be registered to vote in two jurisdictions.

What is illegal is to vote in a state where you do not reside. This is the definition of voter fraud.

For the 2016 election, there is zero proof that people registered in multiple jurisdictions voted more than once. That's what matters.²⁾“There is no evidence of voters illegally casting ballots at the most recent election in Nevada."

Crimes require proof.³⁾This over-simplifies it. There are two necessary elements. You need a mental element, intent, called mens rea, which I guess multiple regisrations would speak to [not sufficiently in my eyes. I would want to see a statement made by a person]. The second element, entirely absent here, is the actus reus, or the action of the crime. Will someone please produce the actual voter that voted fraudulently in 2016? It is not proper to speak of voter fraud [because the discussion often leads to voter suppression efforts. This needs to be done very carefully.] unless the accuser has a specific person/instance in mind. It is imperative that the public believe that the elections are legitimate; if you think about it hard enough, you will realize everything we have is dependant upon popular sovereignty of the elected. If it is important to all of us that the President win the popular vote, it's much simpler to eliminate the electoral college.

Just imagine how unfair our criminal justice system would be if you could press charges based on solely on innuendo..

-Brian

[End note]

Residency in Nevada

The residency of a person is important in many circumstances, such as whether you may file a lawsuit. Other categories, such as taxes, divorce, and possibly others may have additional or separate residency requirements and are not addressed here. The Research Division Legislative Counsel Bureau has produced a Fact Sheet regarding residency requirements in Nevada that will assist in most residency inquiries.

What is legal residency under Nevada law?

“Legal residence” is defined by statute under NRS 10.155, which is listed here in its entirety:

Unless otherwise provided by specific statute, the legal residence of a person with reference to the person’s right of naturalization, right to maintain or defend any suit at law or in equity, or any other right dependent on residence, is that place where the person has been physically present within the State or county, as the case may be, during all of the period for which residence is claimed by the person. Should any person absent himself or herself from the jurisdiction of his or her residence with the intention in good faith to return without delay and continue his or her residence, the time of such absence is not considered in determining the fact of residence. (emphasis added).

 

The statute contained in NRS 10.155 has remained largely unchanged since 1911. In fact, the portions relating to a person’s right to maintain or defend a suit has only changed to make it gender neutral.⁴⁾Compare with 1911 statute quoted in Fleming v. Fleming, 36 Nev. 135, 134 P. 445, 446 [1913]

 

How Nevada Courts define residency

The Nevada Supreme Court has held that “residency is a question of fact to be determined by the district court.”⁵⁾ Vaile v. Eighth Judicial Dist. Court ex rel. Cnty. of Clark, 118 Nev. 262, 271, 44 P.3d 506, 512 [2002]. This is different from most facts in a case which are determined by the trier of fact ⁶⁾typically a jury, but may be the judge at trial if a jury is not requested in a timely manner/is not desired by the party bringing suit. The standard of proof for residency is clear and convincing.⁷⁾McKim v. Dist. Court of Second Judicial Dist. of Nevada, 33 Nev. 44, 110 P. 4, 5 [1910]. This standard is higher than a 'preponderance of the evidence', but lower than 'beyond a reasonable doubt'

There are two main elements to determining residency in Nevada under NRS 10.155: 1. an intent to reside in Nevada for an indefinite period of time and 2. actual, physical presence in Nevada. ⁸⁾Vaile v. Eighth Judicial Dist. Court ex rel. Cnty. of Clark, 118 Nev. 262, 269, 44 P.3d 506, 511 [2002]. The term residency carries with it the idea of permanency as well as continuity.⁹⁾Id. These two elements—physical presence and intent to remain—have not been analyzed separately by Nevada courts.

In Aldabe v. Aldabe,¹⁰⁾84 Nev. 392, 441 P.2d 691 [1968], the Court found that evidence of “mailing address, voting registration, school attendance, medical care, business and financial affairs, auto and operators' licenses, taxes, wills, and employment” all in Nevada as well as a “declared intention of Nevada residence and performed continuous daily activities in Nevada” supported a finding that a person was a Nevada resident.¹¹⁾Id. at 397, 694. Furthermore, the lack of evidence demonstrating any intention to give up “residence as Nevadans to acquire that of any other state” was also persuasive.¹²⁾Id. The Aldabe Court found that a husband and wife were residents in Nevada in a divorce action because of the above evidence even though the property of their marital residence included land on both sides of the California-Nevada border with the living quarters located in California.¹³⁾Id. at 395, 693.

Affidavits by a party or witness regarding the person’s physical presence and intentions are also considered by Courts in the analysis of residency.¹⁴⁾118 Nev. at 270, 44 P.3d at 512; Moore v. Moore, 78 Nev. 186, 187, 370 P.2d 690, 690 [1962]; Klepper v. Klepper, 51 Nev. 468, 279 P. 758, 758 [1929];  Fleming v. Fleming, 36 Nev. 135, 134 P. 445, 446 [1913].

While there are requirements that a person must live in Nevada for a period of time in order to be eligible for some rights or entitlements, such as divorce, there is no such requirement for residency. Under NRS 125.020, a person must have resided in Nevada for six weeks before bringing suit for divorce. This assumes residency was already established. The Research Division Legislative Counsel Bureau has provided a “Fact Sheet” wherein it states “Legal residence starts on the day that such actual physical presence begins.” This is consistent with the Nevada Supreme Court’s holdings that a person need only be physically present and intend to remain indefinitely, which could be at the first moment the person crosses the Nevada border.

This was originally published by Ethan Featherstone