Legal Aspects of Divorce
Divorce can be a trying and difficult experience for many people. Adding to these difficulties is the uncertainties many people have about aspects of their divorce. This summary is intended to give you some general information about many subjects which concern clients. Hopefully you will find this information helpful and we can, of course, discuss any of these subjects in much greater detail should the need arise.
The marital estate includes property accumulated through the efforts of one or both parties during the marriage as well as debts incurred for family purposes and necessaries. Assets include things like real estate, cars, investments, stock options, retirement accounts, business interests, cash value in life insurance policies and monies owed to you from another person. Nebraska has been referred to as an “equitable” division state. That means that the court is required to divide the marital assets and liabilities fairly. The Nebraska Supreme Court in a long line of cases has determined that “fair” means that a wife is entitled to between one-third and one-half of the net marital estate. While this rule is still in place, practice throughout the courts in the State of Nebraska would indicate that most judges will endeavor to divide the marital estate equally between the parties, absent some unusual circumstances. If one party can show that they owned property prior to the marriage, received a gift intended for them only or inherited assets during the marriage, the original value of such assets (or property traceable such assets) can be excluded from the marital estate if they have not been comingled with marital property. Whether appreciation on these non-marital assets can be considered marital will depend upon the level of involvement by the owner spouse and if his or her efforts contributed to the appreciation of value in the asset during the course of a lengthy marriage. This particular area of Nebraska law is not susceptible to easy explanation and has developed in a sometimes confusing case-by-case basis. Another important aspect in the division and valuation of marital assets are the probable tax consequences of any division. If the parties are unable to agree on the valuation or division of the marital estate, then the court will make this decision for the parties. In so doing, courts usually do not divide or order the sale of a business or a farm. Rather, the court will award this to one party or the other and then order compensating payments as part of a money judgment. If you and your spouse agree upon distribution of property and the agreement is reasonable, it will more than likely be approved by the trial court.
Health insurance is and should be a major consideration for anyone going through a divorce, particularly people who are approaching retirement age or have young children. Because of the increasing cost of health insurance and the economic devastation that can potentially occur if someone is not covered by health insurance, it is very important that we obtain accurate information about the health insurance available to the parties and their children and deal with this at the time a final settlement is reached. It is also important that you seek information about replacement health insurance and your rights under COBRA. Additionally, if the children are going to require some significant healthcare services in the future, please bring these matters to our attention so that they can be dealt with as part of the overall settlement. Nebraska law provides that either the child support obligor or the custodial parent will be required to obtain healthcare coverage and provide it during the children’s minority if it is available to either of them through an employer, organization or other health insurance entity. If healthcare coverage is not available or is inaccessible and one or more of the parties are receiving Title IV-D Services, then cash medical support will be ordered by the court.
An exact fee for representation in a divorce or legal separation will vary with the services required. Each case is different and will require differing amounts of time and effort on the part of us and our staff to properly complete the case and achieve the best results possible for you. The fees charged by our office are reflective of our training, experience and expertise and the excellence and commitment of our staff in connection with your case. As part of negotiations in a case, attorney fees can be made payable by one party to the other. In cases that ultimately are litigated by the court, the issue of attorney fees can be presented to the court and the court will make a determination based upon the financial situations of the parties, the complexity of the case and whether one of the parties was intentionally creating difficulties or impediments to settlement. The expectation of this office concerning payment of fees is outlined in the Engagement Letter that you have signed with this office when you retained us to represent you. If you have any further questions about fees or billings, please bring it to our immediate attention. Such issues should be handled expeditiously and should not be raised at the conclusion of the case.
In today’s economy, one of the greatest concerns of the parties should be the tax consequences of the decisions made in connection with the divorce. Oftentimes these consequences are overlooked. We are not accountants and will not give you tax advice but we will discuss probable tax consequences involved with settlement or trial of your case. Where necessary, we will consult with your accountant or refer you to a qualified CPA in order to evaluate tax consequences involved in your particular circumstances.
It is absolutely essential for us to have all the facts of your life to properly represent you. If there are certain facts which you do not tell us or, if you are untruthful with us, we cannot be held accountable for what may transpire. We expect you to be cooperative and truthful. If you are not, we will not continue to represent you. Anything you tell anyone in this office is strictly confidential and will not be disclosed without your permission.