Nebraska divorce attorneys provide answers to frequently asked questions with regards to divorce and the divorce process in Nebraska.
What are the grounds for divorce in Nebraska?
Every complaint for dissolution of marriage that is filed in the state of Nebraska must declare the grounds for which the dissolution of marriage is to be granted. The Nebraska Legislature has adopted a “no-fault” divorce scheme permitting the dissolution of marriage upon a finding that the marriage is “irretrievably broken.”
The grounds for dissolution of marriage much be substantiated with evidence or testimony, otherwise the court may dismiss the case. If there is no dispute that the marriage is irretrievably broken, the court will likely make a finding that the marriage is irretrievably broken.
If one of the parties disputes that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the complaint and the prospect of reconciliation, and shall make a finding of whether the marriage is irretrievably broken or not.
What is a divorce going to cost me? Can I afford it?
It is nearly impossible to estimate how much a divorce will cost someone. The costs and circumstances significantly vary from case to case. A case where the parties are amicable and can agree on the issues will cost less than an acrimonious divorce where all issues have to be proven at trial. Most cases fall in between those two scenarios.
Do I really need to hire an attorney?
You are not required to hire an attorney. However, the court will not assist or give legal advice to parties that do not have an attorney. There are various procedures that need to be completed for a divorce to be granted. An attorney will advise you of these procedures and make sure that you have a full understanding of what your options are.
Also, there are certain legal rights that may be waived if not asserted. An attorney will also advise you of your legally protected rights and how to best defend them.
Does Nebraska grant divorces based on marital fault?
Nebraska is a no-fault divorce state permitting the dissolution of marriage upon a finding that the marriage is irretrievably broken.
The Nebraska Dissolution Statutes authorize maintenance to either party. Neither the Nebraska Supreme Court nor the Nebraska Court of Appeals has ever articulated a coherent rule or set of rules concerning when or how much maintenance should be awarded.
Rather, the court will examine a number of factors to determine what is reasonable. These factors include the length of the marriage, contributions by both parties to the marriage, and the earning capacity of each party.
Can I change my name at the time of divorce?
As part of the dissolution, either party may seek to have their maiden name or a former name restored. The court must grant such request except for good cause shown. The procedure for obtaining a change in name is to include the request in your petition or complaint for dissolution; present testimony at trial as to the former name; and specifically provide for the name change in the decree.
Can I get an annulment in Nebraska?
An annulment may only be granted if one of the following is shown: the marriage between the parties is prohibited by law; either party was impotent at the time of marriage; either party had a spouse living at the time of marriage; either party was mentally ill or was mentally challenged at the time of marriage; or force or fraud.
In Nebraska, a party can file for divorce after living in the state for one year. If a party has not met this requirement, they can file for legal separation and later amend the complaint to request a divorce once they have met the residency requirement. If you have not lived in Nebraska for one year, but you have lived here since the date you were married, you are able to file for divorce.
When is my case going to be over?
The length of your case can vary considerably depending on the circumstances. In Nebraska, there is a 60-day waiting period after the dissolution is filed until the court will grant the dissolution. If there are children involved or if there is any dispute over property, the divorce will most likely take longer.
Do I have to go to court?
Not always. If you are able to settle all issues of the case, the court will set the matter for a final hearing and most courts only require that one party attend this hearing. If you are unable to settle all issues, the issues in dispute will be set for trial and you must attend.
If attempts to serve my spouse do not work, what is my next step?
If service cannot be made with reasonable diligence by any other method, you may serve your spouse by leaving the process at their usual place of residence and mailing a copy by first-class mail to their last known address, by publication, or by any manner reasonably calculated under the circumstances to provide the party with actual notice of the proceedings and opportunity to be heard.
At what point during the process can a spouse remarry or start dating?
In Nebraska, you cannot remarry anyone anywhere in the world until at least six months and one day have passed from the date the decree is signed by the judge and filed with the clerk’s office. There are no restrictions on when you can begin dating.
In Nebraska, to grant a dissolution the Court must find that the marriage is irretrievably broken. If one of the parties disputes whether the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the complaint and the prospect of reconciliation, and shall make a finding whether the marriage is irretrievably broken.
Generally, one spouse cannot stop a no-fault divorce. Objecting to the other spouse’s request for divorce is in itself an irreconcilable difference that would justify the divorce.
Do the other issues – child support, child custody, alimony, and property – have to be decided before the divorce is final?
Yes. For the court to grant a divorce, a parenting plan and property settlement agreement must be entered by the court. These decide support, custody, alimony, and property between the parties. If the parties cannot agree on these issues, the court will make a ruling on them.
How long do I have to live in Nebraska to obtain a divorce?
In Nebraska, at least one of the parties must reside in Nebraska for at least one year prior to filing a petition for divorce or if the marriage took place in Nebraska and either party has resided in Nebraska from the time of the marriage to the filing of the petition.
After I file for divorce, do I have to continue to live in Nebraska?
No. However, if you are the custodial parent of minor children that resulted from the marriage you must petition the court for permission to move out of state.
What if I am in the military and out of state?
The Nebraska laws are 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.
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.
In order to initiate divorce proceedings, you need to file a complaint for dissolution. Additionally, a vital statistic worksheet and a form stating the parties’ (and minor children, if applicable) gender, date of birth, and social security numbers, must be completed. There also might be others forms required by local court rule.
How and where is a divorce complaint filed?
The divorce complaint needs to be filed with the clerk of the district court of the county where you or your spouse lives.
How do I serve the divorce complaint on my spouse?
You can give notice to your spouse in one of the following ways: Voluntary Appearance, Praecipe for Summons, or Service by Publication. A Voluntary Appearance is a form that is signed by your spouse stating that he has knowledge of the case. A Praecipe of Summons is filed with the court and instructs the sheriff’s department of your county to serve your spouse.
Service by Publication is conducted by filing notice in the local newspaper at least once a week for three consecutive weeks. Usually, it is best to try the Voluntary Appearance first. If that does not work, then try the Praecipe for Summons. If that does not work, then try Service by Publication.
How is a divorce granted? Will I have to go to court?
A divorce will be granted when the judge signs the decree and files the decree with the clerk’s office, but the divorce will not be final for 30 days from the date it is filed. For purposes of remarriage and keeping a spouse on a health insurance policy, the divorce is not final for 6 months after the date the decree is filed.
If all terms are agreed on, usually only one party must attend the final hearing.
What typically happens if I go to court to obtain my divorce myself?
Typically, the court will highly recommend that you seek counsel because of the complexity of the issues.
How do I prove fault for divorce?
Nebraska is a no-fault state. Therefore, the fault of the parties is irrelevant when determining whether a divorce should be granted.
At any time can a parent change a minor child’s last name without the other parent’s permission?
No, the court must grant permission for the name change. The parent seeking the name change must show that the change would be in the best interest of the minor child. In making its decision, the court will consider whether the other parent consents to the name change.
Can a couple become legally married by living together as man and wife under the state’s laws (common law marriage)?
No. Nebraska does not recognize common law marriage.