Affirmative defense: Notice of intent to claim; notice of rebuttal witnesses; notice of provisions of section.
1. Except as otherwise provided in this section, in a prosecution for a violation of NRS 201.020, the defendant may claim as an affirmative defense that he was unable to provide the child support or spousal support ordered by a court.
2. In addition to the written notice required by NRS 174.234, a defendant who intends to offer the affirmative defense described in subsection 1 shall, not less than 20 days before trial or at such other time as the court directs, file and serve upon the prosecuting attorney a written notice of his intent to claim the affirmative defense. The written notice must include:
(a) The specific affirmative defense that the defendant is asserting; and
(b) The name and last known address of each witness by whom the defendant proposes to establish the affirmative defense.
3. Not later than 10 days after receiving the written notice set forth in subsection 2 or at such other time as the court directs, the prosecuting attorney shall file and serve upon the defendant a written notice that includes the name and last known address of each witness the prosecuting attorney proposes to offer in rebuttal at trial to discredit the affirmative defense claimed by the defendant.
4. Each party has a continuing duty to file and serve upon the opposing party any change in the last known address of any witness that the party proposes to offer to establish or discredit the affirmative defense described in subsection 1.
5. Each party has a continuing duty to disclose promptly the names and last known addresses of any additional witnesses which come to the attention of that party and which that party proposes to offer to establish or discredit the affirmative defense described in subsection 1.
6. If the defendant or prosecuting attorney fails to comply with the requirements set forth in this section, in addition to any sanctions or protective orders otherwise provided in chapter 174 of NRS, the court may grant a continuance to permit the opposing party time to prepare.
7. A prosecuting attorney shall provide notice of the requirements of this section to a defendant when a complaint is served upon the defendant for a violation of NRS 201.020.
8. For the purposes of this section, a defendant is not “unable to provide the child support or spousal support ordered by a court” if, during the period that the defendant was obligated to provide and failed to provide child support or spousal support, the defendant was:
(a) Voluntarily unemployed or underemployed without good cause or to avoid payment of child support or spousal support, including, without limitation, not using reasonable diligence to secure sufficient employment; or
(b) Unable to pay the child support or spousal support ordered by a court because of his excessive spending, indebtedness or other legal obligation, unless the spending, indebtedness or other legal obligation was not within the control of the defendant.
Last modified: February 25, 2006