Divorce in Nebraska: The Legal Process, Your Rights, and What to Expect

by Susan Ann Koenig

Overview

Providing accurate and objective information to help make the right decisions during a divorce in Nebraska, this guide provides answers to 360 queries such as What is the mediation process in Nebraska and is it required? How quickly can one get a divorce? Who decides who gets the cars, the pets, and the house? What actions might influence child custody? How are bills divided and paid during the divorce? How much will a divorce cost? and Will a spouse have to pay some or all attorney fees? Structured in a question-and-answer format, this divorce handbook provides clear and concise responses to help build confidence and give the peace of mind needed to meet the challenges of a divorce proceeding. This updated edition has been revised to include the new additions to Nebraska's divorce laws.

Product Details

ISBN-13:	9781938803093
Publisher:	Addicus Books
Publication date:	12/01/2013
Series:	Divorce In
Sold by:	Barnes & Noble
Format:	eBook
Pages:	228
File size:	1 MB

About the Author

Susan Ann Koenig, JD, has practiced law in Nebraska for more than 25 years and owns her own law firm. She has taught at Creighton University School of Law and the University of Nebraska–Omaha. She has won the Spirit of Women Foundation Award, the Power of One Award, and the Nebraska National Association of Social Work Citizen of the Year Award. She lives in Omaha, Nebraska.

Read an Excerpt

Divorce in Nebraska

The Legal Process, Your Rights, and What to Expect

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By Angela Dunne, Susan Ann Koenig

Addicus Books, Inc.

Copyright © 2013 Susan Ann Koenig and Angela Dunne
All rights reserved.
ISBN: 978-1-938803-09-3

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CHAPTER 1

Understanding the Divorce Process

At a time when your life can feel like it's in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of many aspects of your divorce may be unknown, increasing your fear and anxiety. But there is one part of your divorce that does have some measure of predictability, and that is the divorce process itself.

Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing stages and moving forward with your divorce can reassure you that it won't go on forever.

Develop a basic understanding of the divorce process. This will lower your anxiety when your attorney starts talking about "depositions" or "going to trial," and you feel your heart start pounding in fear. It can reduce your frustration about the length of the process because you understand why each step is needed. It will support you to begin preparing for what comes next.

Most importantly, understanding the divorce process will make your experience of the entire divorce easier. Who wouldn't prefer that?

1.1 What steps are taken during the divorce process?

The divorce process in Nebraska typically involves the steps listed on the chart on the following two pages.

The Divorce Process Obtain a referral for a lawyer. Schedule an appointment with an attorney. Prepare questions and gather needed documents for initial consultation. Meet for initial consultation with attorney. Pay retainer to attorney and sign retainer agreement. Provide requested information and documents to your attorney. Take other actions as advised by attorney, such as opening or closing financial accounts. Attorney prepares complaint for divorce and affidavits for temporary matters for your review and signature. Attorney files complaint with the clerk of the court. Attorney obtains ex parte restraining orders if appropriate. Attorney obtains hearing date for temporary matters. Mandatory sixty-day waiting period begins when spouse's voluntary appearance is filed by the court. OR Spouse is served papers by sheriff. Negotiations begin regarding terms of temporary order on matters such as custody, support, and temporary possession of the family home. Attorneys prepare financial affidavits and child support guidelines for temporary hearing. Temporary hearing is held. OR Parties reach agreement on temporary order. Temporary order is prepared by one attorney, approved as to form by other attorney, and submitted to the judge for signature. If there are minor children, parties must attend a parent education class, develop a parenting plan, or participate in mediation. Both sides conduct discovery to obtain information regarding all relevant facts. Obtain valuations of all assets, including expert opinions if needed. Ask your attorney for a litigation budget to help you anticipate and prepare for the overall cost of litigation. Confer with your attorney, identify issues, assess strengths and weaknesses of the case, review strategy, and develop proposal for settlement. Spouses, with support of attorneys, attempt to reach agreement through written proposals, mediation, settlement conferences, or other negotiation. Parties reach agreement on all issues. Attorney prepares decree and court orders for the division of retirement plans for approval by spouses and attorneys. OR Certificate of readiness for trial is filed with the court asking that a trial date be set. Pay trial retainer to fund the work needed to prepare for trial and services the day or days of trial. Parties prepare for trial on unresolved issues. OR Trial preparations proceed including preparation of witnesses, trial exhibits, legal research on contested issues, pretrial motions, trial brief, preparation of direct and cross-examination of witnesses, preparation of opening statement, subpoena of witnesses, closing argument, and suggestions to the court. Meet with attorney for final trial preparation. Trial Judge makes decision. Attorney prepares decree. Spouse's attorney approves decree as to form. Decree is submitted to judge for signature. Judge signs decree of dissolution. Make payments and sign documents (deeds or titles) according to decree. Documents required to divide retirement accounts and ensure the payment of child support are submitted to the court. Pay any remaining balance due on attorney fees or receive refund.

1.2 Must I have an attorney to get a divorce in Nebraska?

You are not required to have an attorney to obtain a divorce in Nebraska. However, if your case involves children, alimony, significant property, or debts, you should avoid proceeding on your own.

If your divorce does not involve any of these issues, contact the Legal Clinic at Creighton University School of Law or the Civil Clinic at the University of Nebraska College of Law to request documents and instructions that are helpful in the simplest of cases. Call your local courthouse to see whether there is a self-help desk available to provide assistance. A person who proceeds in a legal matter without a lawyer is referred to as being pro se, on one's own.

If you are considering proceeding without an attorney, at a minimum have an initial consultation with an attorney to discuss your rights and duties under the law. You may have certain rights or obligations you are unaware of. Meeting with a lawyer can help you decide whether to proceed on your own.

1.3 What is my first step?

Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer's experience and reputation.

Even if you are not ready to file for divorce, call to schedule an appointment right away to obtain information about protecting yourself and your children. Even if you are not planning to file for divorce, your spouse might be.

Ask what documents you should take to your initial consultation. Make a list of your questions to bring to your first meeting. Start making plans for how you will pay your attorney to begin work on your case.

1.4 Is Nebraska a no-fault state or do I need grounds for a divorce?

Nebraska, like most states, is a no-fault divorce state. This means that neither you nor your spouse is required to prove that the other is "at fault" in order to be granted a divorce. Factors such as infidelity, cruelty, or abandonment are not necessary to receive a divorce in Nebraska. Rather, it is necessary to prove that the marriage is "irretrievably broken" to have it dissolved.

Although not required, if either party chooses to have a final hearing, then the testimony of either you or your spouse is likely to be sufficient evidence for the court to rule that the marriage should be dissolved. This testimony will state that efforts at reconciliation were made, that those efforts were not successful, that further attempts would not be beneficial, and that the marriage is irretrievably broken.

The judge may ask for information regarding the nature of the problems that led to the divorce or the type of reconciliation efforts made, such as counseling with a therapist or clergy member.

1.5 How will the judge view my or my spouse's infidelity?

Because Nebraska is a no-fault divorce state, there will rarely be testimony or evidence introduced about either spouse's infidelity. However, the judge will hear testimony regarding an extramarital affair if custody is an issue and your child was exposed to the affair.

1.6 Do I have to get divorced in the same state I married in?

No. Regardless of where you were married, you may seek a divorce in Nebraska if the jurisdictional requirements of residency are met. The jurisdictional requirements are discussed in the following question.

1.7 How long must I have lived in Nebraska to get a divorce in the state?

Either you or your spouse must have been a resident of Nebraska for at least one year to meet the residency requirement for a divorce in Nebraska. However, if you married in Nebraska less than a year ago and have resided in this state for the duration of your marriage, it is not necessary to wait a year before you file for divorce.

If neither party meets the residency requirement, other legal options are available for your protection. If you do not meet the one-year residency requirement, talk to your attorney about options such as a legal separation, a complaint for a custody and support order, or a protection order.

1.8 My spouse said, "I won't give you a divorce." Can I get one in Nebraska anyway?

Yes. Nebraska does not require that your spouse agree to a divorce. If your spouse threatens to not "give" you a divorce, know that in Nebraska this is likely to be an idle threat without any basis in the law.

Under Nebraska law, to obtain a divorce you must be able to prove that your marriage is "irretrievably broken." This is a legal term meaning that one sees no possibility of reconciliation between you and your spouse. In short, it is not necessary to have your spouse agree to the divorce or to allege the specific difficulties that arose during the marriage to obtain a divorce in Nebraska.

1.9 Can I divorce my spouse in Nebraska if he or she lives in another state?

Provided you have met the residency requirements for living in Nebraska for one year, you can file for divorce here even if your spouse lives in another state.

Discuss with your attorney the facts that will need to be proven and the steps necessary to give your spouse proper notice to ensure that the court will have jurisdiction over your spouse. Your attorney can counsel you on whether it is possible to proceed with the divorce.

1.10 Can I get a divorce even when I don't know where my spouse is currently living?

Nebraska law allows you to proceed with a divorce even if you do not know the current address of your spouse. First, take action to attempt to locate your spouse. Contact family members, friends, former coworkers, or anyone else who might know your spouse's whereabouts. Utilize resources on the Internet that are designed to help locate people.

Let your attorney know of the efforts you have made to attempt to find your spouse. Inform your lawyer of your spouse's last known address, as well as any work address or other address where this person may be found. Once your attorney attempts to give notice to your spouse without success, it is possible to ask the court to proceed with the divorce by giving notice through publication in a newspaper.

Although your divorce may be granted following service of notice by publication in a newspaper, you may not be able to get other court orders such as those for child support or alimony without giving personal notice to your spouse. Talk to your attorney about your options and rights if you don't know where your spouse is living.

1.11 I just moved to a different county within the state of Nebraska. Do I have to file in the county where my spouse lives?

You may file your divorce complaint either in the county where you reside or in the county where your spouse resides.

1.12 I immigrated to Nebraska. Will my immigration status stop me from getting a divorce?

If you meet the residency requirements for divorce in Nebraska, you can get a divorce here notwithstanding your immigration status. Talk to your immigration lawyer about the likelihood of a divorce leading to immigration challenges.

If you are a victim of domestic violence, tell your lawyer. You may be eligible for a change in your immigration status under the federal Violence Against Women Act.

1.13 I want to get divorced in my Indian tribal court. What do I need to know?

Each tribal court has its own laws governing divorce. Requirements for residency, grounds for divorce, and the laws regarding property, alimony, and children can vary substantially from state law. Some tribes have very different laws governing the grounds for your divorce, removal of children from the home, and cohabitation.

Contact an attorney who is knowledgeable about the law in your tribal court for legal advice on pursuing a divorce in your tribal court or on the requirements for recording a divorce obtained in state court with the clerk of the tribal court.

1.14 Is there a waiting period for a divorce in Nebraska?

Yes. Nebraska has a mandatory sixty-day waiting period. This waiting period begins on the day that the defendant, the person who did not initiate the divorce process, is determined to have been given legal notice of the divorce. This date is either the day that the defendant is personally delivered papers by the sheriff or the date that the defendant files with the court a "voluntary appearance" acknowledging that he or she knows the divorce has been filed with the court.

1.15 What is a [divorce complaint?

A divorce complaint, also referred to as a complaint for dissolution of marriage, is a document signed by the person filing for divorce and filed with the clerk of the court to initiate the divorce process. Formerly referred to as a petition, the complaint will set forth in very general terms what the plaintiff is asking the court to order.

Sample Complaint

IN THE DISTRICT COURT OF DOUGLAS COUNTY, NEBRASKA

JANE DOE
CASE NO. CI12-0001 Plaintiff

vs.
COMPLAINT FOR DISSOLUTION
OF MARRIAGE JANE DOE Defendant

COMES NOW the Plaintiff, Jane Doe, by and through her attorneys, Susan Ann Koenig and Angela Dunne, and for her cause of action against the Defendant, alleges and states as follows:

1. Plaintiff is a resident of Douglas County, Nebraska, and has had actual residence in this state with a bona fide intention of making this state her permanent home for a period of more than one year immediately prior to the filing of this Complaint.

2. The Plaintiff's address is 318 South Blank Avenue, Omaha, Douglas County, Nebraska 68144.

3. The Defendant's address is 604 XYZ Street, Omaha, Douglas County, Nebraska 68144.

4. This matter should be heard before a district court judge.

5. Neither party is a member of the armed forces for the United States or its allies.

6. Plaintiff is not a party to any other pending action for annulment, separation or dissolution of marriage.

7. Neither the Plaintiff nor the Defendant is a party to any existing restraining orders, protection orders or criminal no-contact orders regarding one another.

8. The parties hereto were married in Broken Bow, Nebraska on or about the 15th day of June, 2000.

9. There are two (2) minor children born of the marriage of the parties whose custody and welfare may be affected by these proceedings, to wit: JACKIE SUE DOE, born in 2004, age 9; and JOEY JOHN DOE, born in 2009, age 4.

10. Pursuant to the provision of Neb. Rev. Stat. § 43–1246 of the Uniform Child Custody Jurisdiction & Enforcement Act (Reissue 2004), the following information is provided in regard to the minor children.

A. The addresses of the minor children of the parties over the last five years are as follows:

ADDRESSES
DATES RESIDING
RESIDED WITH WHOM

318 South Blank Avenue, 2001 to present
Both parents
Omaha, Douglas County,
Nebraska 68114

B. Plaintiff has not participated as a party, witness, or in any other capacity in any other litigation concerning the custody of said children in this or any other state.

C. Plaintiff has no information of any custody proceeding concerning the minor children pending in a court of this or any other state.

D. Plaintiff knows of no person not a party to the proceedings herein who has physical custody of the minor children or claims to have custody or visitation rights with respect to the minor children.

E. Plaintiff will continue to inform the court of any custody proceeding concerning the minor children in this or any other state of which she obtains information during this proceeding

11. A Parenting Plan, as required by the Parenting Act, has not yet been developed.

12. Custody of the minor children and parenting time have not yet been determined and may be in dispute.

13. The Plaintiff is a fit and proper person to be awarded legal and physical custody of the minor children of the parties.

14. It is in the best interests of the minor children of the parties that Plaintiff be awarded physical custody of the minor children of the parties subject to Defendant's right of reasonable parenting time.

15. Defendant is able-bodied, employed and capable of providing financial support for the minor children of the parties and of paying a portion of all child care expenses incurred for the minor children of the parties.

16. Child support should be determined pursuant to the Nebraska Child Support Guidelines.

17. Plaintiff is without sufficient funds for which to provide for the needs of herself and is in need of spousal support.

18. Defendant should continue to maintain health insurance on the minor children of the parties and the Plaintiff.

19. During the marriage of the parties, certain real and personal property has been acquired by the parties and all of said property should be justly and equitably apportioned between the parties.

(Continues...)

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Excerpted from Divorce in Nebraska by Angela Dunne, Susan Ann Koenig. Copyright © 2013 Susan Ann Koenig and Angela Dunne. Excerpted by permission of Addicus Books, Inc..
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Contents

Acknowledgments,
Introduction,
1 Understanding the Divorce Process,
2 Coping with Stress during the Divorce Process,
3 Working with Your Attorney,
4 Attorney Fees and Costs,
5 The Discovery Process,
6 Mediation and Negotiation,
7 Emergency: When You Fear Your Spouse,
8 Child Custody,
9 Child Support,
10 Alimony,
11 Division of Property,
12 Benefits: Insurance, Retirement, and Pensions,
13 Division of Debts,
14 Taxes,
15 Going to Court,
16 The Appeal Process,
17 What Happens after the Divorce,
In Closing,
Resources,
Glossary,
Index,
About the Authors,

Editorial Reviews

"it provides an in-depth overview of the divorce process in a straightforward format that is easy to understand." —John S. Slowlaczek, The Nebraska Lawyer

From the Publisher