Nebraska Divorce Procedures

Nebraska Divorce Procedures

Complete overview of Nebraska divorce laws for people considering a Nebraska divorce or filing a Nebraska divorce with issues to be resolved about child custody, child support, visitation and alimony.

Nebraska Divorce Residency Requirements

In order to file your Petition for Dissolution of Marriage in Nebraska, you must make sure the District Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Nebraska residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

No action for dissolution of marriage may be brought unless at least one of the parties has had actual residence in this state with a bona fide intention of making this state his or her permanent home for at least one year prior to the filing of the complaint, or unless the marriage was solemnized in this state and either party has resided in this state from the time of marriage to filing the complaint.

Persons serving in the armed forces of the United States who have been continuously stationed at any military base or installation in this state for one year or, if the marriage was solemnized in this state, have resided in this state from the time of marriage to the filing of the complaint.

The dissolution of marriage may be filed in either county in which the spouse resides and there is a 60 day waiting period after the dissolution is filed until the court will grant the dissolution.

The Dissolution of Marriage is typically filed with in county in which the filing spouse lives.

(Nebraska Statutes – Chapter 42 – Sections: 342, 349)

Since dissolution of marriage is governed by state law, it is required that you meet specific residency requirements in order to file for a dissolution of marriage in the state of Nebraska. It is most common that people file for a dissolution of marriage in the county in which they live. If you are unsure of whether or not you meet the Nebraska residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.

Nebraska Grounds for Divorce

The Petition for Dissolution of Marriage is the initial document filed with the Nebraska court. It is in the document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

The court will grant a dissolution of marriage according to the following grounds:

No Fault Based Grounds:
Irretrievable breakdown of the marriage.

Fault Based Grounds:
Evidence which indicates that either party is mentally ill and lacks the ability to consent to a dissolution of marriage. This includes temporary incapacity caused by alcohol and drug abuse.

(Nebraska Statutes – Chapter 42 – Sections: 361, 362)

Every dissolution of marriage case that is filed in the state of Nebraska must declare the grounds in which the dissolution of marriage is to be granted. The grounds for dissolution of marriage must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a dissolution of marriage, or agreeing to a dissolution of marriage, make sure that you completely understand the grounds and any potential legal repercussions.

Nebraska Uncontested Divorce

This information is an overview of the uncontested Nebraska divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Nebraska .

To file for a divorce in Nebraska, 1) one spouse must live in the state for at least one year or 2) the marriage must have happened in Nebraska and one spouse has lived in the state for the duration of the marriage. The action is filed in a county where either spouse resides.

Grounds for divorce are No-Fault, which is an irretrievable breakdown of the marriage, and general grounds, which are that one spouse lacked the mental capacity to consent, including temporary incapacity resulting from drug and alcohol use.

In divorce actions, the filer is called the Petitioner; the other party is called the Respondent. Divorces are called dissolutions of marriage. Actions are filed in the District Court, which is the county court.

Irretrievable breakdown is the only grounds for a legal separation in Nebraska, and there is no residency requirement.

Nebraska permits joint petitions to dissolve a marriage, and in these cases the parties are called Co-Petitioners.

There is a 60-day waiting period after the service of the petition before a hearing can be held and a six-month waiting period after the decree is handed down before either party may remarry (unless one of them dies, whereupon the survivor may remarry immediately).

To file for a dissolution in a marriage when there are no children or property disputes, the Petitioner must file the following forms:

a) Complaint for Dissolution of Marriage without children, DC 6:4(1), which identifies the parties, states the facts of the marriage, asks for relief;

b) Confidential Party and Social Security, Gender, Birth Date(s), DC 6:5(11) through DC 6:5 (12a), which identifies the parties in the action;

c) Voluntary Appearance, DC 6:4(3), which enters the appearance of the Respondent in the case and acknowledges his or her recipient of the Complaint;

d) Praecipe for Summons, DC 6:4(4), which asks the Clerk of the court to issue Summons and a copy of the Complaint to the Respondent;

e) Notice of Hearing, DC 6:4(5), which informs the Respondent on the hearing date in the dissolution action;

f) Decree of Dissolution — No Children, DC 6:4 (6), which spells out the terms and conditions of the dissolution, which is “final and operative” 30 days after the decree is filed.

To file for a dissolution in a marriage where there are children but no visitation or property issues, the Petitioner files the following:

1) A Complaint for Dissolution of Marriage with Children, DC 6:5(1) as well as all of the forms filed in an action with no children, including:

2) Confidential Party and Social Security, Gender, Birth Date(s), DC 6:5(11) through DC 6:5 (12a);

3) Voluntary Appearance, DC 6:4(3), which enters the appearance of the Respondent in the case and acknowledges his or her recipient of the Complaint;

4) Praecipe for Summons, DC 6:4(4), which asks the Clerk of the court to issue Summons and a copy of the Complaint to the Respondent;

5) Notice of Hearing, DC 6:4(5), which informs the Respondent on the hearing date in the dissolution;

6) Decree of Dissolution — With Children, DC 6:5(3).

In addition, the Petitioner files the following forms:

a) A Certificate of Completion of Parenting Education Classes, DC 6:5(5), which are mandatory for parents;

b) A Financial Affidavit for Child Support, DC 6:5(2),

c) A Parenting Plan, Parent-Created, DC 6:5(6), or

d) A Parenting Plan, Absent Parent, Court Use, DC 6:5(13) or

e) A Parenting Plan, Absent Parent, Petitioner’s Use, DC 6:5 (14), depending upon the situation.

When the Petitioner cannot be located or will not accept service (the delivery of the Summons and Complaint), the Petitioner may choose Service by Publication. In this event, he or she must file with the court the following:

1) A Motion for Service by Publication, DC 6:6(1);

2) An Affidavit in Support of Motion for Service by Publication, DC 6:6(2), which details the efforts the Petitioner has made to locate the Respondent;

3) An Order for Service by Publication, DC 6:6(3), which permits the Petitioner to publish a Notice of Divorce Proceeding. This notice must be published once a week for three consecutive weeks in a newspaper in the city or in the county where the dissolution is filed.

4) A Notice of Divorce Proceeding – No Children, DC 6:6(4) or A Notice of Divorce Proceeding – With Children, DC 6:6(5), whichever is applicable;

5) A Decree – No Children – Service by Publication, DC 6:6(6) or A Decree – With Children – Service by Publication, DC 6:6(7), whichever is applicable.

When a party can not afford the filing fees, he or she may file In Forma Pauperis. This requires that he or she file:

a) An Affidavit and Application to Proceed In Forma Pauperis;

b) An Order to Proceed In Forma Pauperis.

Nebraska Simplified Divorce Procedures

Joint petitions for dissolution of marriage may be filed by both spouses. In such cases, the spouses should be referred to as “Co-Petitioners” on the court documents. In addition, marital settlement agreements are specifically authorized by law. [Revised Statutes of Nebraska; Chapter 42, Sections 361 and 366].

Each state has its own unique filing procedure. When filing for dissolution of marriage in Nebraska, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory dissolution of marriage documents to the county court. You will discover that some documents may be provided by the Nebraska Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the Nebraska Laws and the filing requirements.

Nebraska Property Division Factors

In Nebraska, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the District Court within the Decree of Dissolution of Marriage.

Nebraska is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the District Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the District Court to be fair.

The following factors will be considered by the court when making a property award: the contribution each spouse had to acquiring the marital property; the current and future economic status of the spouses; the amount of time the spouses have been married; and the child custody arrangements if the spouses have minor children.

(Nebraska Statutes – Chapter 42 – Sections: 365)

Since Nebraska is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.

Nebraska Spousal Support/Maintenance/Alimony Factors

In Nebraska the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the District Court will order support from one spouse to the other on a case-by-case basis as follows:

The following will be considered by the court when making a support award: 1. the circumstances of the parties, 2. length of the marriage, a history of the contributions to the marriage by each party, (a) including contributions to the care and education of the children, (b) and postponements of personal careers or educational opportunities, (c) and the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of such party. Reasonable security for payment may be required by the court.

(Nebraska Statutes – Chapter 42 – Sections: 365)

Nebraska Child Custody Factors

In Nebraska, the court will consider the following factors to determine what is in the best interest of the children:

a) The relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing;

b) The desires and wishes of the minor child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning;

c) The general health, welfare, and social behavior of the minor child; and

d) Credible evidence of abuse inflicted on any family or household member. The court will not make a decision based on gender, so each parent is given an equal opportunity in all custody decisions.

(Nebraska Statutes – Chapter 42 – Sections: 364)

In Nebraska, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.

Nebraska Child Support Factors

The amount of child support is determined based on a consideration of the earning capacity of each parent. There are official Supreme Court child support guidelines which should be available from the clerk of the court.

[Revised Statutes of Nebraska; Chapter 42, Section 364].

Nebraska child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Nebraska child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Nebraska child support deviation factors that may be applicable to the situation.

Nebraska Grandparent’s Rights

Grandparent Rights to Visitation: Visitation may be granted if at least one of the child’s parents is deceased, the marriage of the parents has been dissolved or a petition for dissolution is pending, or if the child’s parents have never been married but paternity has been legally established. The court must find that there is a significant beneficial relationship between the grandparents and grandchild and that it would be in the best interest of the child to allow the relationship to continue. The visitation cannot adversely interfere with the parent-child relationship. Chapter 43, Section 43-1801 (R.S.N. 1943 §43-1801 et seq.).

When Adoption Occurs: Adoption terminates all rights.

Custody statute: Best interest of child considering: (1) relationship of child and each party; (2) reasonable desires of the child; and (3) general health, welfare, and social behavior of child. R.S.N. 1943 §42-364

Parents May Choose: Yes

Nebraska Military Divorce Laws

A Nebraska military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From Nebraska Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Nebraska court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Nebraska court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

a) You or your spouse must reside in Nebraska
b) You or your spouse must be stationed in Nebraska

Grounds for Nebraska Military Divorce

The grounds for a military divorce in Nebraska are the same as a civilian divorce.

Dividing the Property

Along with the normal Nebraska property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In Nebraska, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Nebraska child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

Nebraska Child Support Guidelines

The Nebraska child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Nebraska child support order.

Nebraska Child Support Guidelines

Income Share Model *: YES
Percent of Income Model *: NO
Worksheets Available: YES
Extraordinary Medical Expenses Add on: NO
Childcare Add on: YES
Secondary Education Support: NO
UIFSA: NO

* The Income Shares Model: Nebraska child support is calculated by estimating the amount of support that would have been available to the child(ren) if the family had remained intact. This estimated amount is then divided proportionally to the parents according to each parent’s income. This is easily done by using the Nebraska child support worksheet and the estimated incomes are typically substantiated by past pay stubs or w-2s.

For example: If the father has a higher income than the mother, he would then be responsible for the greater portion of the child support obligation. Conversely, if the father has a lower income than the mother, he would then be responsible for the smaller portion of the child support obligation.

As a reminder, the child support obligation can manifest itself differently between a custodial and a noncustodial parent.

For example: It is not common for a custodial parent to be paying support to a non-custodial parent.

Nebraska Child Support Definitions

NEBRASKA CHILD SUPPORT GUIDELINES

A. Introduction. The main principle behind these guidelines is to recognize the equal duty of both parents to contribute to the support of their children in proportion to their respective net incomes.

B. Temporary and Permanent Support. The guidelines are intended to be used for both temporary and permanent support determinations.

C. Rebuttable Presumption. The child support guidelines shall be applied as a rebuttable presumption. All orders for child support obligations shall be established in accordance with the provisions of the guidelines unless the court finds that one or both parties have produced sufficient evidence to rebut the presumption that the guidelines should be applied. All stipulated agreements for child support must be reviewed against the guidelines and, if a deviation exists and is approved by the court, specific findings giving the reason for the deviation must be made. Findings must state the amount of support that would have been required under the guidelines and include a justification of why the order varies from the guidelines. Deviations must take into consideration the best interests of the child. In the event of a deviation, the reason for the deviation shall be contained in the findings portion of the decree or order; or worksheet 5 should be completed by the court and filed in the court file. Deviations from the guidelines are permissible under the following circumstances:

1. when there are extraordinary medical costs of either parent or child;
2. when special needs of a disabled child exist;
3. if total net income exceeds $10,000 monthly, child support for amounts in excess of $10,000 monthly may be more but shall not be less than the amount which would be computed using the $10,000 monthly income unless other permissible deviations exist;
4. for juveniles placed in foster care; or
5. whenever the application of the guidelines in an individual case would be unjust or inappropriate.

D. Total Monthly Income. This is income of both parties derived from all sources, except all means-tested public assistance benefits and payments received for children of prior marriages. If a party is self-employed, depreciation claimed on tax returns should be added back to income or loss from the business or farm to arrive at an annualized total monthly income. If applicable, earning capacity may be considered in lieu of a parent’s actual, present income and may include factors such as work history, education, occupational skills, and job opportunities. Earning capacity is not limited to wage-earning capacity, but includes moneys available from all sources.

E. Deductions. The following deductions should be annualized to arrive at monthly net income:

1. Taxes. Standard deductions applicable to the number of exemptions provided by law will be used to establish the amount of federal and state income taxes.
2. FICA. Social security deductions, or any other mandatory contributions in lieu of social security deductions.
3. Health Insurance. The increased cost to the parent for health insurance for the child(ren) of the parent shall be allowed as a deduction from gross income. The parent requesting an adjustment for health insurance premiums must submit proof of the cost of the premium.
4. Mandatory Retirement. Individual contributions, in a minimum amount required by the plan.
5. Child Support. Child support previously ordered for other children.

F. Child-Care Expenses. Child-care expenses are not specifically computed into the guidelines amount and are to be considered independently of any amount computed by use of these guidelines. Child-care expenses for the child for whom the support is being set, which are due to employment of either parent or to allow the parent to obtain training or education necessary to obtain a job or enhance earning potential, shall be divided between the parents in proportion to their parental contribution (worksheet 1, line 6) and shall be added to the basic support obligation computed under these guidelines. The value of the federal income tax credit for child care may be subtracted from actual costs to arrive at a figure for net child-care expenses.

G. Health Care. Children’s health care needs are to be met by requiring either parent to provide health insurance as required by state law, and the court may apportion all nonreimbursed children’s health care costs between the parents according to the same formula used to determine each parent’s share of support.

H. Review. The State Court Administrator shall review the Nebraska Child Support Guidelines not less than every 4 years, beginning in October 1993, and recommend revisions, if any, to the Nebraska Supreme Court.

I. Basic Subsistence Limitation. A parent’s support, child care, and health care obligation shall not reduce his or her net income below the minimum of $696 net monthly for one person, or the poverty guidelines updated annually in the Federal Register by the U.S. Department of Health and Human Services.

Nebraska Dissolution of Marriage Definitions

This collection of definitions will help clarify some unique characteristics to the Nebraska Dissolution of Marriage laws, process and paperwork which is filed with the court.

Filing Party Title:
Petitioner

The spouse who will initiate the Dissolution of Marriage by filing the required paperwork with the court.

Non-Filing Party Title:
Respondent

The spouse who does not initiate the Dissolution of Marriage with the court.

Court Name:
In the District Court for __________ County, Nebraska

The proper name of the court in which a Dissolution of Marriage is filed in the state of Nebraska. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Dissolution of Marriage Document:
Petition for Dissolution of Marriage

The title and name of the legal document that will initiate the Nebraska Dissolution of Marriage process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Dissolution of Marriage Document:
Decree of Dissolution of Marriage

The title and name of the legal document that will finalize the Nebraska Dissolution of Marriage process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
District Clerk’s Office

The office of the clerk that will facilitate the Dissolution of Marriage process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

Irretrievable breakdown of the marriage is the only grounds for a legal separation in Nebraska. There are no residency requirements specified in the statute. If the residency requirements for dissolution of marriage are met after the petition for legal separation has been filed, the spouse filing may change the proceeding to a proceeding for dissolution of marriage.
[Revised Statutes of Nebraska; Chapter 42, Section 350].

Property Distribution:
Equitable Distribution

The applicable Nebraska law that will dictate how property and debt is to be divided upon Dissolution of Marriage.