Selected Legal Aspects of Divorce Actions
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.
Nebraska has adopted a concept of “no fault” divorce, making it unnecessary to prove cruelty, adultery, insanity, etc. in order to dissolve a marriage relationship. It is only necessary to demonstrate to the court that the marriage is “irretrievably broken” which means the level of conflict within the marriage has advanced to the point where the parties can no longer get along and there is no reasonable expectation of reconciliation. In Nebraska, if one party can support such an allegation, the court will generally dissolve the marriage even though the other party does not believe the marriage is irretrievably broken. The courts in Nebraska will not act as a “reconciliation court” and will not order the parties to go to counseling in an attempt to preserve the marriage.
No action for dissolution of marriage may be brought unless at least one of the parties has had actual residence in Nebraska for at least one year prior to the filing of the Complaint, or unless the marriage occurred in Nebraska and at least one of the parties has resided in this state from the date of the marriage to the date of filing the Complaint for dissolution.
To begin a divorce proceeding or legal separation in the State of Nebraska, a complaint is filed with the Clerk of the District Court in the appropriate county. The complaint contains the names and addresses of the husband and wife and the names, dates of birth and addresses of the children affected by the proceedings. It also sets forth the date and place of the marriage and will necessarily contain certain information concerning the addresses where the children have lived prior to the filing of the action. The complaint will request that the court dissolve the marriage, determine custody, visitation and child support, make a determination of the value of the marital estate and distribute it equitably and, where appropriate, award alimony, attorney fees and court costs. If a wife desires restoration of her maiden name, this should be requested at the time the complaint is filed. The required fee to file a complaint for a divorce is $158.00. The fee required at the time an action for legal separation is filed is $82.00.
There is no legal significance as to whether the husband or the wife files a complaint although there may be procedural and tactical advantages for one party to file first. If either husband or wife threatens to remove children from the State of Nebraska or dispose of assets, it may be necessary to proceed with the filing of the case in order to obtain certain orders from the court preventing such actions. Except in cases where spousal abuse has occurred, we believe in most cases it is desirable for the parties to discuss the fact that one party or the other is going to file a divorce before it is actually filed. In those cases where spousal abuse has occurred, we will discuss with you your options concerning financial and living arrangements at the outset of the case until temporary orders are entered. We can also discuss the availability of protection or harassment protection orders if you believe additional protection may be necessary for you and/or your children during this process.
After the Complaint is filed, the case cannot proceed unless the other party is either “served” with process by a Sheriff, enters their appearance voluntarily by signing a document called a “Voluntary Appearance” or retains an attorney to enter an appearance on their behalf. A Voluntary Appearance is commonly used in order to prevent the embarrassment of serving a spouse at home or at work and it will save some money. By signing a Voluntary Appearance, the only thing the party is agreeing to is to waive personal service of process on their person and agree to be bound by the jurisdiction of the court where the Complaint for Dissolution of Marriage was filed. All other matters may be contested.
A legal separation is similar to a divorce proceeding from a procedural standpoint. It is commenced by filing a Complaint for Legal Separation. It is not necessary to allege that the marriage is “irretrievably broken”. Once filed, a court in a legal separation proceeding can enter the same kind of orders a court would in a divorce case concerning custody and visitation, child and spousal support and orders pertaining to property and debts. Although a legal separation can be finalized by entry of a Decree of Legal Separation, this usually occurs when the parties actually want a divorce but have not met the residency requirements. A Decree of Legal Separation can be modified into a Decree of Dissolution of Marriage upon the filing of the necessary and appropriate documents.
In many cases, it is necessary that the Court enter an order (either by agreement of the parties or following presentation on affidavit evidence) concerning custody, visitation, child support, payment of employment-related daycare expenses, payment of alimony, attorney fees or other matters. These hearings are typically held in the judge’s chambers and require that we have as much accurate information from you as possible to present an accurate picture to the judge concerning your position on custody and economic matters. Additionally, this is the time to address issues concerning improper transfers of property, domestic abuse or significant visitation disputes. At our initial meetings, you will be given certain worksheets to complete and it is important that you give us as much information as possible so that we can prepare for these hearings and obtain the best result possible for you. If a spouse will not voluntarily leave the family home, there are procedures for excluding that person from the home. This is particularly important where domestic abuse is involved and we will expect you to bring any such incidents to our attention immediately so that we can discuss them with you and deal with them appropriately.
No dissolution can be granted in the State of Nebraska until at least sixty (60) days have passed following the date of service or the filing of the Voluntary Appearance. This is a minimum interval. It is unusual for the parties and the lawyers involved to agree on all issues prior to expiration of at least sixty days. This does not mean the parties cannot settle all matters (if they are able) prior to expiration of the sixty days. It just means that the court cannot approve their settlement agreements and enter a decree divorcing them until the sixty-day minimum waiting period has been met. Most cases take longer than that to resolve, particularly ones involving minor children.
In any divorce case in which the custody of minor children is an issue, the Nebraska Statute requires that the parents attend and complete a parenting education course prior to entry of a final decree or entry of an order modifying a prior judgment as to custody or parenting time. The District Courts in the state of Nebraska have approved certain parenting classes and you will be sent specific information from the Clerk of the District Court where the divorce is filed concerning the approved classes, when and where they are held and the cost. If you have questions about this, you should address them with one of the lawyers or paralegals in the Firm.
The entry of a Decree of Dissolution of Marriage in Nebraska will require that the court determine both the legal and physical custody of minor children. Legal custody refers to the decision-making process. Physical custody refers to the household in which the child(ren) spend the majority of their time. Nebraska does not have a statutory presumption favoring either the husband or wife as being the better or more fit parent to have custody of minor children. In addition, there is no presumption in Nebraska concerning “joint custody”. Custody and parenting time determinations are based upon the best interests of the minor children. Of some importance in custody determinations is the historical role each parent has assumed in raising the children, work schedules and what custody arrangement will cause the least disruption in the lives of the minor children. Custody and parenting time are also to take into consideration the requirements and principles announced in the “Parenting Act” which was enacted by the Nebraska Unicameral in 2007 and amended in 2008. The Parenting Act requires that the parents agree to a “Parenting Plan” which is subject to approval by the court. The Parenting Act requires that the Parenting Plan delineate the type of custody arrangement the parties have agreed upon, define decision making, provide in some detail arrangements for parenting time throughout the year and address a number of other issues related to ongoing parenting, including how to resolve future disputes. The Parenting Act does place significant importance on the identification of and appropriate resolution of domestic abuse, particularly as it relates to children. There are numerous considerations and financial ramifications involved with formulation of a Parenting Plan and all of these issues will need to be discussed in detail with the lawyers of this office. If of a sufficient maturity to express an opinion concerning custody or parenting time, the wishes of minor children may also be taken into consideration. If the parties are unable to agree on certain aspects of the Parenting Plan and the custody arrangement, it is now mandatory under the Parenting Act that they attempt mediation and the court will so order it. This is discussed in the following section.
As part of the Parenting Plan agreed upon by the parties or ordered by the court, a schedule of parenting time with both parents will need to be delineated. The Parenting Act requires some detail with respect to these arrangements. What kind of parenting time the parties have will depend upon the custody arrangement, the ages of the children, their schooling and activities, the jobs the parents have, where they live and a variety of other factors. The old model of visitation where the non-custodial parent had alternating weekend visitation is not utilized as much as it used to be. In some jurisdictions (such as Lancaster County) there is now a presumption that a 10/4 or 9/5 schedule of parenting time every two weeks is in the best interests of the children. This may or may not be appropriate for your situation for a variety of reasons, including the ages of the children, continuing problems between the parents, work schedules or family logistics. Summer visitation and holidays also need to be spelled out with some specificity in the parenting plan and these arrangements can vary greatly depending upon family dynamics, involvement of grandparents or other relatives, level of activities of the children and the ability of parents or extended family to provide transportation. As discussed in the section entitled “Child Support”, the amount of parenting time each parent has and the custody arrangement may affect how child support is calculated.
As mentioned above, the Nebraska Parenting Act requires parents to work together to negotiate a parenting plan. If the parties are unable to do so, the court will order the parties to participate in mediation in an attempt to resolve their differences. At least initially, the courts generally divide the costs of mediation equally between the parties. If ongoing disputes require significant mediation and one or other of the parties is being difficult or obstructive, the court may reallocate some of these costs. Although this Firm is supportive of mediators and their efforts to deal with families involved in the divorce process, not all mediators are equally qualified. Our office has found that the best and most effective mediators are those persons who have had significant experience litigating custody and parenting time issues as well as significant experience in negotiating and mediating disputes in these areas. Additionally, lawyers with this type of background have significant familiarity with the judges who will be deciding disputes and can provide invaluable information about the courts and judges who may be called upon to decide a dispute if it cannot be successfully mediated.
The Nebraska Supreme Court has instituted Child Support Guidelines which the District Courts across Nebraska are required to follow. The earnings of both parents from all sources are considered when awarding child support. If present earnings of a parent are not reflective of that parent’s earning capacity, the court will look at the earnings history of the parent and their education and training in determining what is appropriate. Deviation from the Guidelines may take place by agreement of the parties or where the court finds that application of the Guidelines would be unjust. Child support is payable only until a child reaches the age of 19 years. The determination of child support in Nebraska can be somewhat complex because of the calculations necessary to determine net income from all sources. There are many factors that must be taken into account in creating calculations including, but not limited to use of dependency exemptions, cost of health insurance premiums for the children’s health insurance, income from a second job or overtime, depreciation claimed on business assets by a self-employed spouse (such as a farmer), receipt of non-taxable income or disability benefits, student loan payments, support owed for other children, necessary business expenses and cost of children’s extra-curricular activities or parochial schooling. In addition, the type of custody arrangement will also determine the amount of child support payable by one parent to the other. If any of your children have special education or medical needs, make sure we are aware of such needs in order to adequately protect their rights and your financial position. All child support payments are to be paid through the Nebraska Child Support Payment Center. Direct payments by one party to the other are strongly discouraged and can result in significant misunderstandings or improper credit to the payor parent. Unless otherwise agreed, Nebraska law requires income withholding by an employer of a payor spouse. The Nebraska Child Support Payment Center can assist you with automatic deductions from a checking account to assist in regular payments of support obligations. Judgments for child support become liens against real estate owned by the payor parent and this will need to be dealt with in the event real estate is being sold or refinanced following the divorce.
Clients frequently ask whether a court will require one or both parties to contribute toward college education. There is no statute or case in Nebraska which confers jurisdiction on a trial court to order one or both parties to contribute toward post-secondary or college education or training. If you and your spouse can agree on the necessity for educating children after high school and the extent of your commitment in that regard, we can incorporate such an agreement within the terms of the Property Settlement Agreement and make it enforceable. Such an agreement necessarily includes a certain degree of trust on the part of both parents not to mention a significant financial obligation.
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.
It is becoming more common for spouses to enter into Premarital Agreements, particularly in the event of a second marriage. Nebraska recognizes premarital agreements provided they are fair, not unconscionable and based upon full disclosure between the parties. These requirements are spelled out in the Uniform Premarital Agreement Act which became part of Nebraska law in 1994. Recent cases in Nebraska have pointed out the importance of having Premarital Agreements executed sufficiently in advance of the wedding so that it does not appear that a spouse is being unduly forced into signing such an agreement. A recent case in Nebraska has also determined that post-marital contracts are void as against public policy and will not be enforced. In either case, if you have a Premarital Agreement or a Post-Marital Agreement, you should bring it to our attention immediately at the beginning of the case. Our office routinely reviews and prepares Premarital Agreements for clients.
Most divorce cases will require us to compile detailed and accurate information concerning marital assets and debts, your earning capacity as well as that of your spouse, and various other information pertaining to tax consequences of division of the marital estate, assets which you may have received by inheritance or gift or facts pertinent to determination of custody. Much of this information can be obtained through information you supply to us or our staff. In other instances, we will need to utilize the formal rules of discovery under Nebraska law. This involves procedures such as subpoenas, interrogatories, depositions and requests to produce documents or things. Where appropriate, a business valuation or real estate appraisal may need to be performed. As the need for some of these procedures may arise, we will visit with you about them before they take place. An informal exchange of information saves time and money and we will attempt to use it as much as possible. However, if your spouse is not cooperative, has a tendency to be untruthful or secretive or if your marital estate is quite large, we will need to use formal discovery. It will also be necessary to use formal discovery in those cases involving a custody dispute. As we learn the facts of your case, we will recommend a discovery plan that is suitable for your circumstances. In no instance will we undertake formal discovery without your consent and approval.
The courts in Nebraska may award alimony payable by one spouse to the other. The amount and duration of alimony depends upon the duration of the marriage, ages of the parties, economic circumstances of the parties, earning capacities of the parties, contributions of each to the marriage, interruption of careers for children and several other factors. There is no formula for determining what is appropriate alimony and much will depend upon the factors just mentioned as well as the judge who is deciding the case. Awards of alimony in similar cases vary widely across the State of Nebraska. Alimony has traditionally been deductible to the payor spouse and declarable as income to the recipient spouse. That all changed with the passage of the Tax Cuts and Jobs Act of 2017. Beginning in 2019, alimony will no longer be deductible to the payor spouse and will no longer be declarable as income from the spouse receiving it. Unless agreed otherwise, alimony may be modified upon a showing of good cause although, in practice, alimony is difficult for either spouse to modify. Unless otherwise provided in the decree of dissolution, alimony will terminate upon the death of either party or the marriage of the recipient. As with child support, Nebraska law imposes a lien on real estate owned by the party ordered to pay. All payments must be made through the Clerk of the District 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.
We do not believe it is either practical or ethical for one lawyer to represent both spouses in a divorce case and we are prohibited from doing so by The American Academy of Matrimonial Lawyers, of which we are members. Even in cases where both parties have agreed to virtually everything, we will only represent one client. The other party who chooses not to have representation does so at his or her own peril.
As noted, most courts in Nebraska do not act as conciliation courts. However, most parties can and should seek some counseling in connection with their divorce proceeding, particularly when minor children are affected. Divorces are difficult and a competent counselor or clinical psychologist can be very effective in helping clients deal with the emotional trauma, anger and sadness involved with the divorce. We have worked with a number of very competent professionals in this area and will be happy to make an appropriate referral for you. Should you and your spouse reconcile prior to completion of the case, the complaint for dissolution may be dismissed at any time.
If there is no appeal and the parties have entered into a Property Settlement Agreement, your divorce will be final thirty (30) days following entry of the Decree of Dissolution. However, it will be impossible for you or your spouse to remarry anyone during the six month period following entry of the decree. The Nebraska Unicameral has extended when the Decree is final to a period of six (6) months for purposes of health insurance coverage only. This means that, provided the health insurance company is so-inclined, they can view the parties as continuing to be husband and wife for health insurance purposes only. This allows one party to carry the other on their health insurance for up to six months. However, this provision in Nebraska law does not requirethat one party carry the other on their health insurance. In most cases, this is probably a good idea and will become part of the negotiation process.
Following entry of a Decree of Dissolution of Marriage it is not uncommon for modifications to occur. While the valuation and allocation of property interests can generally not be changed, child support, parenting time and child custody may be modifiable. Circumstances change, people remarry, children grow up and the earning capacity of one party or the other may change from what it was at the time the Decree was entered. In most cases, modifications can be handled agreeably but documents reflecting the modification must be placed in writing, signed by both parties and approved by the court as part of a Order of Modification. Simply making “side agreements” will have no legal force or effect and will cause problems.
In our mobile society, it is not uncommon for people to relocate to another town following a divorce. When children are involved, this becomes a very difficult issue. It becomes especially difficult when the move is outside the state of Nebraska. In the event a custodial parent or a parent with joint physical custody needs to relocate for a job, remarriage or other reason, it will necessarily require a modification of the Parenting Plan and, in some cases, modification of custody arrangements. There is significant Nebraska case law that has developed in the last 20 years that you will need to discuss with our office if relocation appears to be eminent. This should be brought up immediately even if it occurs during the divorce so that it can be addressed. In no event may a parent relocate to another state for purposes of changing the permanent residence of the parties’ children without consent of the court that has jurisdiction over the divorce. These are some of the most difficult cases that courts have to deal with.
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.
During the pendency of your case, you may wish to consider having our office prepare a Power of Attorney for you in the event of disability. Preparation of a Power of Attorney would allow someone you appoint to act on your behalf in helping us move forward with the case in the event of your partial disability. If you do not have a Power of Attorney with respect to healthcare or end of life decisions or if you have such a Power of Attorney but your spouse has the authority to make those decisions on your behalf, you may also want to discuss with us drafting a new Power of Attorney with respect to healthcare so that someone other than your spouse will have the authority to make those decisions on your behalf.
Following the divorce, it is imperative that you review and, in most cases, revise your will and review estate planning objectives. Our office can assist in preparation, review and revision of wills and trusts to make sure your wishes are accurately delineated.