To file for divorce in Nebraska, at least one spouse must have been a Nebraska resident for at least one year. To start the legal process, one spouse has to file a Complaint for Divorce and state the appropriate grounds for the divorce.
Since Nebraska is a purely “no-fault” marriage state, there are two proper grounds for divorce:
- Irretrievable breakdown of the marriage;
- One spouse cannot consent to the divroce because they are mentally ill and do not have the capacity to consent to the dissolution of marriage.
In addition to a required reason, the Complaint for Divorce should also request a judgment on any of the other issues involved in the person’s divorce, such as division of the property, child custody, payment of child support, and payment of alimony.
What Is the Difference Between Separation and Divorce in Nebraska?
A legal separation agreement has much the same effect as a divorce agreement, but it does not end the marriage legally. A separation is similar to a divorce in that all issues of property division, child custody, child support and alimony have to be resolved.
A couple may prefer to get a legal separation rather than a divorce. People have various personal reasons for not wanting to end a marriage. Some people prefer separation to divorce for religious reasons.
The spouses can negotiate their own separation agreement and submit it to a judge for approval Once the judge accepts it and incorporates it into a final order of separation, a separation agreement is legally binding and a court will enforce it.
Generally, a judge accepts a separation agreement that the two spouses negotiate for themselves, if it is expressed in writing signed by both spouses and the agreement appears to be fair.
The main difference between divorce and separation is that the spouses who are separated may not legally get married again. Spouses who are divorced may legally remarry.
What Paperwork Do I Need to File for Divorce?
Four main steps are required to initiate a divorce in Nebraska as follows:
- File a Complaint for Dissolution of Marriage in a the district court in the county in which the person lives;
- File a Vital Statistics Certificate;
- Give the Confidential Party Information and Social Security Information forms to the Clerk of the district court in which he Complaint is filed;
- Pay the required filing fee or request that a judge waive the filing fee.
More information on the divorce process and all of the necessary forms can be found at http://www.supremecourt.nebraska.gov/self-help.
Marital Property vs. Separate Property
Nebraska is an “equitable distribution” state. This means that all marital property is divided fairly, but not necessarily equally. Of course, spouses are free to make their own agreement and submit it to the court for approval. If the court finds that it is fair, it approves the agreement.
Marital property consists of most of the assets and debts that a couple has acquired during the marriage and is subject to division during the divorce. Property that a spouse acquired before they married or received during the marriage as a gift or inheritance is separate property.
The distinction between separate and marital property is important because separate property is usually not subject to division in divorce. It belongs to the spouse who received it originally as a gift, inheritance or acquired it before the marriage. However, it is important to know that separate property can become marital property through actions such as placing the name of one’s spouse on the title of the property.
In addition to the marital property that a couple owns, their debt must be divided as well. Most married couples today are probably carrying some debt, and the spouses must continue to pay it off after their divorce. So this is yet another issue that the spouse must negotiate or submit to a judge for decision.
What Should I Do if There Are Children Involved?
As part of the divorce, the judge will issue a child custody order and parenting plan that will detail the parental rights and obligations regarding the children of the marriage. As with the division of property, the parents can agree on a parenting plan for their children themselves and present it to the court for approval. However, if they are unable to do so, the court decides the issue.
Before obtaining a divorce, both parents are required to participate in a mandatory parenting class. The goal of the class is to help the family make the transition to deal with the emotional issues that can come up with a divorce. It is possible to get a waiver, but it is rarely issued. It may be an option to complete the course online.
It is also important to keep in mind that there are two kinds of custody, physical and legal. Physical custody is where the child is going to live, whether with one parent only, which is sole custody, or with both more or less equally, which is shared or joint custody. Legal custody concerns which parent makes the important decisions about the child’s life, e.g. where they are educated, whether they are to affiliate with a religion and if so, which one, and decisions about medical care.
Courts always give preference to joint custody for both physical and legal custody unless there are compelling factors for which joint custody would put a child’s welfare at risk.
In Nebraska, as in all other states, decisions about child custody are based on the best interests of the child standard. There are several factors that courts weigh in determining the child’s best interest as follows:
- If the child is mature enough to express a preference, then the child’s preferences as to custody is taken into consideration;
- The parents’ preferences as to custody are also considered. Of particular importance is the willingness of a parent to establish a continuing relationship between the child and the other parent, because this is thought to be critical to the child’s development;
- Any history of domestic violence, child abuse, neglect, or substance abuse on the part of either or both parents;
- The child’s capacity to adjust to a new home, school, and community if that should be necessary;
- The mental or physical health of the parents and the children involved in the proceedings;
- The child’s relationship with each of their parents, siblings, and other members of the extended family;
- Whether there is any evidence of spousal abuse;
- The results of any investigation that is made into the nature of care and welfare of the children.
Regardless of whether custody is shared or whether one parent has sole physical custody after divorce, both parents are responsible for financially supporting the children of the marriage.
At the very minimum, if one parent has sole physical custody, the court will order the non-custodial parent to make child support payments. But the payment of child support by one spouse to the other is possible even if custody is shared.
Do I Have to Pay Alimony?
When the judge issues a final order in a divorce, they may order one of the spouses to pay alimony, or spousal support, to the other. A judge may require alimony if they determine that it is fair based on a number of factors including the length of the marriage, the respective incomes of the two spouses, who has custody of the children, and the like. Judges in Nebraska do not use a formula to determine whether alimony should be paid and if so, in what amount.
A judge’s goal is to arrange for each party to maintain the same standard of living they had during the marriage. Spousal maintenance payments end if the spouse receiving payments remarries or moves in with another partner. They also end if one of the spouses passes away, of course.
Do I Need the Help of a Lawyer with My Divorce?
Going through a divorce can be emotionally stressful. Some divorces can be quite straightforward if there are not any children, the marriage has been relatively short and the spouses do not have much marital property.
Others can involve complicated legal issues related to property division, child custody, child support, spousal support, and the division of debt. If you are looking for an attorney to aid you, you want to consult a local Nebraska divorce lawyer today to get the help you need.
