Our Attorneys Can Answer Your Questions About Divorce
The divorce lawyers of Walz Law Offices in Omaha are knowledgeable, experienced and eager to help. We answer some common questions about divorce in Nebraska and related matters. To discuss your specific situation, we invite you to arrange a consultation.
What Are The Grounds For Divorce In Nebraska?
Nebraska has been a “no-fault” divorce state since 1972. Therefore, a spouse is not required to make a specific complaint about the other spouse’s misconduct in order to be granted a divorce. A party seeking divorce only has to allege that the marriage is irretrievably broken, and a divorce will be granted without any finding of fault on the part of either party. The purpose of these “no fault” divorce laws is to reduce guilt and conflict as incidents of divorce, as well as minimize bitterness resulting from attempts to place the blame for an unsuccessful marriage on one party or the other. You will still be granted a divorce if your spouse shows up to court and denies that the marriage is irretrievably broken.
Is Alimony Automatic In Nebraska?
No, alimony is not automatic in Nebraska. A party seeking alimony must request it from the Court and there is no guarantee they will be awarded alimony just because they asked for it. The Court will not award alimony merely because one party makes more than the other, nor will they award alimony to punish a party. The majority of divorces do not result in an award of alimony. When alimony is awarded, it is to allow an economically disadvantaged spouse to get back on their feet following the divorce until they can become self-supporting. Alimony will terminate upon the death of either party remarriage of the recipient.
Under Nebraska Revised Statute 42-365, in determining whether to award alimony, the court considers several factors, including the circumstances of the parties, duration of the marriage, history of contributions to the marriage such as contributions to the care and education of the children, interruption of personal careers or educational opportunities, and the ability of the supported party to engage in gainful employment without interfering with the interest of any minor child. Courts may also consider a spouse’s ability to pay alimony. Alimony is usually temporary, with permanent alimony being rare. Unlike child support, there is no calculator to determine the amount of alimony that will be awarded in a case because the judge has the discretion to determine the amount to be awarded.
How Is Property Awarded In Divorce?
Nebraska is not a community property state. Therefore, the marital estate, which consists of all marital assets and liabilities, does not necessarily have to be divided 50/50 (although this is a common result). The polestar for division of the marital estate is fairness and reasonableness as determined by the facts of each case. While there is no precise formula, the general rule is to award a spouse one-third to half of the marital estate. The court may take into account the contributions parties made to the marital estate when dividing the same.
What Assets And Liabilities Are Subject To Division In Divorce Court?
Property acquired during the marriage will usually be considered marital property. Exceptions to this include gifts and inheritance received from third parties during the marriage. Property owned before the marriage will usually be considered separate property so long as it is not co-mingled with marital property. A given property may be a mix of both marital and nonmarital interests. Common examples of this would include a house that one owned before the marriage that was paid off after the date of marriage or a pre-existing investment account that appreciated during the marriage due, in part, to contributions made during the course of the marriage. A party asserting that some or all of an asset is nonmarital must produce evidence regarding the premarital value of the same.
A marital debt is one incurred during the course of the marriage by either spouse for the joint benefit of the parties. Debts incurred during the course of a marriage are presumed to be marital unless one of the parties rebuts the presumption. Student loans are usually presumed to be nonmarital, even if they were incurred during the marriage. The reason for this is that the party incurring the student loans is the person who benefits. Typically, automobile loans are assigned to the party that received the automobile in question.
Keeping assets and debts titled separately does not render them nonmarital unless the parties signed a prenuptial agreement before the marriage to that effect. Therefore, your spouse’s credit card will likely be included in the marital estate even if you never used it. Contributions made to your retirement accounts during the course of the marriage will be considered marital property.
In a final divorce decree, the court will order a party to pay certain marital debts. This does not guarantee that creditors won’t come after you for debts if your ex-spouse fails to pay their portion of the marital debts as ordered. Because creditors are third parties to the divorce action, they are not bound by the divorce decree.
Will I Be Able To Keep My House?
If the house is considered nonmarital property, you will likely be able to keep it. The house may be considered nonmarital/premarital if you owned it free and clear before the marriage, received it through gift or inheritance, or had a prenuptial agreement in place. If you owned your home before marriage but had a mortgage that was paid down during the marriage, the court will likely consider some portion of the home to be marital property.
If the house is considered marital property, the equity in the house, which is the difference between the home’s value and what is owed on the mortgage, will be subject to equitable division. Typically, the individual who is awarded the marital home will have to buy out the other party and refinance the mortgage in their name. If neither party can afford the house on their own, it will be sold with the equity divided equitably. If the parties cannot agree on who keeps possession of the marital home, the judge will have to make the determination. In determining who gets the house, the judge may consider factors such as prior ownership, custody of the minor children, and affordability.
What Is A Legal Separation?
If you and your spouse desire to live apart from one another, but you do not wish to dissolve the marriage or cannot for whatever reason, you may seek a legal separation. The courts may enter orders and decrees in a legal separation action dividing assets and debts and determining custody and support for minor children. Legal separation actions are commonly filed when the parties desire a divorce but do not meet Nebraska’s residency requirements for divorce (the state requires one of the parties to reside in Nebraska for one year before divorce will be granted). Parties may also seek a legal separation in lieu of divorce for the purpose of continuing health insurance coverage. A legal separation action may be converted into a Divorce action when the parties meet the requirements for divorce.
Will A Prenuptial Agreement Protect My Assets In Divorce?
Prenuptial or premarital agreements will be honored in Nebraska so long as they are written, agreed to by both spouses voluntarily before the marriage occurs, and are not unconscionable. A full disclosure of the assets and liabilities of the parties will be required. A premarital agreement allows spouses to determine their division of property in the event of divorce beforehand. For example, the agreement may waive rights to spousal support and alimony or state that all income and earnings of the spouses shall be treated as separate property as if the marriage had not occurred. A premarital agreement cannot, however, determine child custody and support.
A premarital agreement also allows spouses to contract around the state’s inheritance laws. Spouses cannot be disinherited in a Last Will and Testament and are entitled to an “elective share” of your estate when you pass. If you are getting married but you want your children from a prior relationship to inherit your entire estate in lieu of your spouse, a premarital agreement will allow you to do this.
Postnuptial agreements entered after the date of marriage will not be honored in Nebraska’s divorce courts. They may, however, be considered valid for inheritance purposes.