Family Law Attorney

What is Spousal Support or Alimony?
 

• In Nebraska, alimony or spousal support is money that the court has ordered be paid on a monthly basis by one spouse to another, as a result of a divorce action. Alimony can begin while a divorce is still pending, or it can be ordered as a result of the final order of dissolving the marriage.
   

What is alimony for?
 

• Alimony typically falls into one of two general categories. It may be used to help one spouse bridge the gap in income while they are transitioning out of the marriage, such as when one spouse did not work or did not have reliable income. In this case, the purpose of alimony is to give that party resources so that they can transition to a new chapter of their life without being left financially stranded.
   

• The second general purpose of alimony is related to the first, but slightly different. Especially in very long-term marriages, alimony may be used to help maintain the living standard of the non-earning spouse. The theory goes that both parties to a marriage have contributed as a team, and it may be unfair to allow only that half of the team which actually receives the paycheck to go on enjoying that income, while the other contributor to the marriage is left without any of the fruits of the partnership.
  
  
  
  
  
  
  
   

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What is alimony not about?
 

• Alimony is not to be used to punish one of the parties. Nebraska is a no-fault divorce state, meaning that in most circumstances it is not important who caused the breakdown in the marriage or why the marriage failed. Even in cases where one party is clearly in the wrong, morally speaking, some type of special circumstances may be needed to justify why that should affect alimony.
   

• Alimony is also not about equalizing income. Nebraska courts have held that in determining alimony, a court should consider the income and earning capacity of each party and the general equities of the situation. Alimony is not a tool to equalize the parties’ income, but a disparity of income or potential income might partially justify an alimony award. Dooling v. Dooling, 303 Neb. 494, (2019). So, while income may play a role in determining alimony, the court will need to look at the circumstances of the parties and of the marriage as a whole.

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Who decides alimony?
 

• When you and your spouse can reach an agreement on alimony, the judge will review and have to approve of the agreement. When you and your spouse cannot agree on the alimony, the judge will make a determination based on the evidence adduced at trial.

 

How can I request Alimony?
 

• Alimony is typically requested during a divorce. Nebraska Revised Statute § 42-359 requires that a request for alimony must be filed along with a financial statement of the requester and to the requestor’s best knowledge, a financial statement of the other party. The financial statement filed must be under oath and must show the income from all sources, debts, living expenses, and other relevant financial information. The other part may file his/her own financial statement as desired. If you do not ask for alimony before the divorce is decreed, you will generally never be able to go back and ask for it at a later point – your right to possible alimony will have been forever waived.
   

What is included in the alimony?
 

• Nebraska Revised Statute § 42-369 says alimony may include the providing of necessary shelter, food, clothing, care, medical support, medical attention, expenses of confinement, education expenses, funeral expenses, and any other expense the court may deem reasonable and necessary. It is worth to mention that alimony does not include child support and is determined separately from child support and for separate reasons. The purpose of alimony is to support the ex-spouse. The purpose of child support is to support your child. Judges may order both alimony and child support.
   

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How is Alimony calculated?

• There is no fixed formula in calculating alimony. The Nebraska Supreme Court in Grothen v. Grothen held that that in contrast to the calculation of child support under the governing guidelines, “there is no mathematical formula by which alimony awards can be precisely determined.” 308 Neb. 28 (Neb. 2020). The principle is based on a fairness and reasonableness on a case-by-case basis. The ultimate test in determining the amount of alimony, as well as the appropriateness of the division of property, is reasonableness as determined by the facts of each case. Busekist v. Busekist, 224 Neb. 510 (1987).

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What factors are considered in determining alimony?

• Alimony is governed by Nebraska Revised Statute § 42-365, which includes the following factors that a judge should consider when determining alimony:
   

1. The circumstances of the parties

2. The duration of the marriage

3. The history of the contributions to the marriage by each party, including

   • contribution to the care and education of the children; and

   • interruption of personal career or educational opportunities.

4. 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 person
    

• Again, however, it should be noted that alimony is based on all the circumstances of the parties, and so “[t]he criteria listed in this statute are not an exhaustive list, and the income and earning capacity of each party as well as the general equities of each situation must be considered.” Zoubenko v. Zoubenko, 19 Neb. App. 582, (2012). The circumstances of the parties could mean many things depending on the person’s needs and background.
   

What is the relevant statute on alimony?
 

• Neb. Rev. Stat. § 42-359 talks about how to apply for alimony. Neb. Rev. Stat. § 42-365 talks about what should be considered in determining alimony. Neb. Rev. Stat. § 42-369 talks about how alimony will be processed.
   

How long do I keep getting alimony?
 

• The length of alimony payments will vary along with amount of alimony awarded, based on similar factors. For extremely long marriages, payments could go on for many years, while shorter marriages typically justify shorter lengths of alimony. Again, however, all the circumstances must be taken into account, and this is not determined solely on the length of the marriage. The divorce decree, and a temporary order if any, will state the length and amount of alimony.

 

My spouse cheated on me, can I get more alimony?
 

• Nebraska is a no-fault divorce state. Generally speaking, courts do not use alimony to punish one spouse during the divorce process. Unless some unique circumstances justify it, courts are generally not interested in who was at fault for the marriage breaking down.
   

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How do I receive the payment?
 

• All temporary and permanent alimony payment must be made on the first day of each month. Payments are made to the clerk of the district court unless an order directing the payment goes to the recipient directly. Payments through the court help provide indisputable accounting of the payments so that it is clear if a party is living up to their obligations.
   

Can husbands get alimony, or only wives?
 

• Alimony does not discriminate based on gender. In other words, gender is not a factor considered in determining who should get alimony. Both genders can receive alimony based on the same statutory factors.
   

What can I do with the alimony?
 

• There is generally no requirement that a person receiving alimony use that money toward any particular purpose. There is generally no accounting that needs to be made of how the funds were used, so the receiving party is free to treat those funds as any other income and dispose of it as they wish.
   

How can alimony be changed or modified?
 

• If alimony is not requested before the time a divorce is finalized, the right to potentially receive alimony is forever waived, except in very narrow circumstances which are an exception to this rule. However, it is possible that an existing order for alimony can be changed or modified after that ruling has been issued, if a change in the circumstances for alimony have changed in sufficiently serious ways. A Nebraska court ruled that “[w]e have also said that while good cause is demonstrated by a material change in circumstances, any changes in circumstances which were within the contemplation of the parties at the time of the decree, or that were accomplished by the mere passage of time, do not justify a change or modification of an alimony order. Metcalf v. Metcalf , 278 Neb. 258(2009). Therefore, any changes in circumstances arguably need to be unanticipated in order to justify re-litigating the issue of alimony. Developments that were inevitable should have been taken into account when alimony was determined the first time, and generally cannot be the basis for re-opening the issue of alimony.
   

• Sometimes, prenuptial agreement may also have an impact on alimony. If there is a prenuptial agreement and you are requesting alimony, it is recommended that you consult with a lawyer.
   

Disclaimer: the information above is for education and marketing purposes only. In no way it is intended to provide legal advice or create a client-attorney relationship. Should you have a question regarding the content or your situation, please contact a lawyer.

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