Nebraska Divorce Law
Divorce and Legal Separation in Nebraska
Divorce and Legal Separation in Nebraska
Nebraska Divorce Basics
To file for dissolution in Nevada, one of the spouses must have had actual residence in the state with a bona fide intention of making Nebraska his/her permanent home for at least one year prior to filing the Complaint for Dissolution, unless the marriage was contracted in the state and either party has resided in Nebraska from the time of marriage to filing of the complaint.
Armed Forces Members:
Persons serving in the U.S. Armed Forces, who have been continuously stationed at any military base or installation in Nebraska for one year, or if the marriage was contracted in the state, have resided there from the time of marriage to the filing of the complaint, shall be deemed residents of Nebraska.
An action for Dissolution shall be brought in the District Court of the county where one of the spouses resides. Summons shall be served by the Plaintiff (filing spouse) on the Defendant (non-filing spouse) by personal service or by the following manner.
If service cannot be made personally as provided by statute, and this is substantiated by filing of a Motion and Affidavit, service may instead be made by (1) leaving the process at the defendant’s usual place of residence and mailing a copy by first-class mail to the defendant’s last-known address; (2) publication; or (3) any manner reasonably calculated under the circumstances to provide the defendant with actual notice of the proceeding and an opportunity to be heard.
In instances where a county has established a separate juvenile court or a county court sits as a juvenile court and orders for child support or spousal support are necessary, divorce court proceedings may be transferred to that separate juvenile or county court, when jurisdiction has been acquired.
Pleadings in a divorce action are governed by the rules of pleading in a civil action.
A Divorce from the Bonds of Matrimony obtained in another jurisdiction does not have legal force in Nebraska, if both spouses were domiciled in Nebraska at the time the divorce proceedings were commenced.
The court may enter a decree of dissolution without a hearing if the following conditions are met:
- 1. Sixty days or more have passed since service of process of the Petition for Dissolution of Marriage;
2. Both parties waive the hearing requirement and the court has sufficient basis to make a finding that it has subject matter jurisdiction over the dissolution action and personal jurisdiction over both parties; and
3. Both parties have certified in writing that the marriage is irretrievably broken, both parties have certified that they have made every reasonable effort to effect reconciliation, all documents required by the court and by statute have been filed, and the parties have entered into a written agreement, signed by both parties under oath, resolving all issues presented by the pleadings in their dissolution action.
When an action for divorce or annulment is filed, either the Plaintiff or the Defendant may include a request to restore his/her former name. Unless there is good cause shown otherwise, the court shall grant this request.
The mere fact that a parent and child may have different surnames following a dissolution of marriage or annulment shall not be sufficient to constitute good cause. The decree of dissolution or declaration of annulment shall specifically provide for the name change, giving both the old name and the name as it will be after the decree or declaration.
This change of name shall become effective on the same date that the decree of dissolution or declaration of annulment, as applicable, is entered.
A decree of dissolution or declaration of annulments which was obtained before August 25, 1989 where a request for name restoration was not granted or included does not prevent the parties from carrying out a common-law name change.
Legal Grounds for Divorce
If only one spouse asserts that the marriage is irretrievably broken, but the other spouse denies this, the court shall consider all relevant factors, including the circumstances that gave rise to filing of the divorce and the prospect of reconciliation, when determining whether the marriage is irretrievably broken.
No decree for divorce shall be entered unless the court finds that every reasonable effort to reconcile has been made. Additionally, no suit for divorce shall be heard or tried until sixty days after perfection of service of process, at which time the suit may be heard or tried and a decree may be entered.
In counties where a conciliation court exists divorce proceedings may be subject to transfer to this court. In counties without these courts, the courts hearing these proceedings may refer the spouses to qualified marriages counselors or family service agencies, or other persons or agencies determined by the court to be qualified to provide conciliation services, if the court finds that there appears to be some reasonable possibility of reconciliation. However, if only one of the parties requests counseling, the court shall not order it.
Marriages and divorces consummated on or after April 8, 1913, among such Indians, or among their descendants, according to the customs and manners of Indian life, are declared unlawful and shall be punished as provided by statute.
Such Indians and their descendants shall procure marriage licenses and have their marriages solemnized and returns thereof made in the manner as provided by the laws of Nebraska for the making of marriage contracts. They shall also obtain divorces in the same manner and for the same cause as provided by Nebraska statute, and not otherwise.
The record of Indian marriages made by the county judge pursuant to Laws 1913, Chapter 68, section 7, and certified copies thereof, shall be legal and competent evidence in all proceedings of the facts therein authorized to be stated.
None of these provisions shall be interpreted to constitute a legal separation of a prior legal marriage according to Nebraska law when a license was secured and a ceremony performed by a person empowered by law to perform a marriage ceremony, of any Indian of whole or missed blood residing in the state.
If any Indian who is married according to these provisions shall, while his/her spouse is living, be married to another person, either in legal form or according to Indian custom, he/she shall be guilty of bigamy and shall therefore be punished as provided by law.
A marriage may be annulled for any of the following causes:
- The marriage between the parties is prohibited by law;
- Either party is impotent at the time of marriage;
- Either party had a spouse living at the time of marriage;
- Either party was mentally ill or a person with mental retardation at the time of marriage; or
- Force or fraud.
When the validity of a marriage is doubted, either party may file a complaint and the court shall decree it annulled or affirmed according to the proof. Notice shall be given the other party as in the case of a complaint for dissolution of marriage.
When the court finds that a party entered into the contract of marriage in good faith supposing the other to be capable of contracting, and the marriage is declared a nullity, this fact shall be entered in the decree and the court may order the innocent party be compensated as in the case of dissolution of marriage, including an award for costs and attorney fees.
If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.
Nebraska is an equitable division state. If the spouses in a divorce action fail to agree upon a property settlement which the court finds to be conscionable, the court shall order an equitable division of the marital estate. The court shall include as part of the marital estate, for purposes of the division of property at the time of dissolution, any pension plans, retirement plans, annuities, and other deferred compensation benefits owned by either party, whether vested or not vested. The purpose of a property division is to distribute the marital assets equitably between the parties.
In a proceeding for dissolution of marriage the terms of the agreement, except terms providing for the support and custody of minor children, shall be binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.
If the court finds the agreement unconscionable, the court may request the parties to submit a revised agreement or the court may make orders for the disposition of property, support, and maintenance.
If the court finds that the agreement is not unconscionable as to support, maintenance, and property:
- Unless the agreement provides to the contrary, its terms may be set forth in the decree of dissolution or legal separation and the parties shall be ordered to perform them; or
- If the agreement provides that its terms shall not be set forth in the decree, the decree shall identify the agreement and shall state that the court has found the terms not unconscionable, and the parties shall be ordered to perform them.
Applications for spousal support or alimony shall be accompanied by a statement of the applicant's financial condition and, to the best of his/her knowledge, a statement of the other party's financial condition. These statements shall be under oath and shall show income from salary or other sources, assets, debts and payments thereon, living expenses, and other relevant information. Required forms for financial statements may be furnished by the court.
When dissolution of a marriage is decreed, the court may order payment of alimony by one party to the other and division of property as may be reasonable, having regard for the following criteria:
- Circumstances of the parties;
- Duration of the marriage;
- A history of the contributions to the marriage by each party, including contributions to the care and education of the children, and interruption of personal careers or educational opportunities, 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 that party.
Except as otherwise agreed to by the parties, in writing or by order of the court, alimony orders shall terminate upon the death of either party or the remarriage of the recipient.
Alimony may be ordered in addition to a property settlement award.
Child Custody and Support
The decree in an action involving the custody of a minor child shall include the determination of legal custody and physical custody based upon the best interests of the child, as defined in the Parenting Act, and child support. Such determinations shall be made by incorporation into the decree of (a) a parenting plan developed by the parties, if approved by the court, or (b) a parenting plan developed by the court based upon evidence produced after a hearing in open court if no parenting plan is developed by the parties or the plan developed by the parties is not approved by the court. The decree shall conform to the Parenting Act.
In determining legal custody or physical custody, the court shall not give preference to either parent based on the sex of the parent and, (with the exception of instances where one of the parents is a registered sex offender) no presumption shall exist that either parent is more fit or suitable than the other. Custody shall be determined on the basis of the best interests of the child, as defined in the Parenting Act. Unless parental rights are terminated, both parents shall continue to have the following rights:
- Each parent shall continue to have full and equal access to the education and medical records of his/her child unless the court orders to the contrary; and
- Either parent may make emergency decisions affecting the health or safety of his or her child while the child is in the physical custody of such parent.
In any divorce proceeding relating to custody of a child of school age, certified copies of school records relating to attendance and academic progress of such child are admissible in evidence.
In determining the amount of child support to be paid by a parent, the court shall consider the earning capacity of each parent and the guidelines provided by the Supreme Court for the establishment of child support obligations. Nebraska uses the Income Shares Model to calculate child support obligations.
Upon application, hearing, and presentation of evidence of an abusive disregard of the use of child support money or cash medical support paid by one party to the other, the court may require the party receiving such payment to file a verified report with the court, as often as the court requires, stating the manner in which child support money or cash medical support is used. Child support money or cash medical support paid to the party having custody of the minor child shall be the property of such party except as provided by statute (§ 43-512.07).
The Supreme Court shall provide by court rule, as a rebuttable presumption, guidelines for the establishment of all child support obligations. Child support shall be established in accordance with these guidelines, which are presumed to be in the best interests of the child, unless the court finds that one or both parties have produced sufficient evidence to rebut the presumption that the application of the guidelines would result in a fair and equitable child support order.
A decree of dissolution shall incorporate financial arrangements for each party's responsibility for reasonable and necessary medical, dental, and eye care, medical reimbursements, day care, extracurricular activity, education, and other extraordinary expenses of the child and calculation of child support obligations.
An obligor's duty to pay child support for a child terminates in the following circumstances:
- The child reaches nineteen years of age;
- The child marries;
- The child dies; or
- The child is emancipated by a court of competent jurisdiction, unless the court order for child support specifically extends child support after such circumstances.
The termination of child support does not relieve the obligor from the duty to pay any unpaid child support obligations owed or in arrears.
To promote the amicable settlement of disputes between the parties to a separation, the spouses may enter into a written property settlement agreement containing provisions for the maintenance of either of them, the disposition of any property owned by either of them, and the support and custody of minor children.
In a proceeding for legal separation, the terms of the agreement, except terms providing for the support and custody of minor children, shall be binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.
A decree of legal separation shall incorporate financial arrangements for each party's responsibility for reasonable and necessary medical, dental, and eye care, medical reimbursements, day care, extracurricular activity, education, and other extraordinary expenses of the child and calculation of child support obligations.
In every action for legal separation, the court may require the husband to pay any sum necessary to enable the wife to maintain the action during its pendency. When a legal separation is decreed, the court may decree costs against either party and award execution for the same, or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.
When a legal separation is decreed, the court may order payment of alimony having regard for the circumstances of the parties and the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in his/her custody.
A legal separation decree shall provide that in case of reconciliation at any time thereafter, the parties may apply to set aside the decree. Upon this application, the court shall set aside the decree and make any orders that are just and reasonable under the circumstances.
Links to State Resources
- Nebraska Child Support Forms
Child Support Worksheets 1-6 and Income Shares Formula Table.
- Nebraska Divorce Forms
Divorce forms, facts and information on the Nebraska Online Legal Self-Help Center provided by Nevada Supreme Court.
- Nebraska Revised Statutes Chapter 42
Text of Nebraska statute regarding Marriage, Divorce, Child Support, Spousal Support, Legal Separation, Annulments, Property Distribution, etc.