Frequently asked questions
What is no-fault divorce?
No-fault divorce means that it does not matter why the relationship broke down, or who caused such a breakdown. A cheating spouse, for example, could theoretically affect child custody if it shows they are an unfit parent, but a judge will not generally be interested in the indiscretions of the parties for any other reasons. The fact that one or more of the parties want a divorce is a good enough reason.
When Can I File for Divorce?
You or your spouse must be a resident of Nebraska for at least one year before filing for divorce in the state. There are generally no restrictions on how soon after marriage you can file for divorce, but if your marriage was the result of fraud or was invalid for some other reason, you may be able to have it cancelled (annulled) rather than go through an actual divorce.
What is uncontested divorce?
An “uncontested” divorce means that both parties are able to reach an agreement as to how property, custody, and other issues will be decided. In this case, the parties just need to have their agreement expressed in writing and for the court to approve their agreement. This would avoid the need for adversarial hearings and trials, because both parties want (or at least have agreed to) the same outcome.
What is a pre-nuptial agreement?
A pre-nuptial agreement is essentially a contract entered into by two persons who expect to get married. The agreement typically lays out some type of expectation as to how their property will be treated going into the marriage and, importantly, if the marriage were to ever be dissolved through divorce.
Are Pre-nuptial Agreements Effective in Divorce?
A pre-nuptial agreement is generally a great way to reduce the uncertainty in how property is likely to be divided through divorce. There are limits on what can be agreed to in a pre-nuptial agreement, and if certain formalities are not followed a court may deem the agreement void. So, it is very important that a pre-nuptial agreement is drafted carefully, and with the assistance of an experienced legal professional. If divorce ever does come, the pre-nuputial agreement that followed proper procedure and disclosures will likely be upheld.
Are Post-nuptial Agreements Enfocrceable in Divorce?
Post-nuptial agreements are generally not enforceable in Nebraska. It is always possible to reach an agreement as to how a divorce should be settled, but this carries many more limitations than a true post-nuptial agreement.
Can I take my children out of state during divorce?
As with all legal questions, this can only be answered based on the specifics of your case. In general, however, it is not advisable to move out of state with children during a divorce. Unless there is a court order regarding parenting time and travel, it may be appropriate to go on a brief trip out of state, but putting down new roots during the divorce process is an easy way to become trapped between a rock and a hard place. Until the divorce is complete, it is generally very easy for the other party to require the kids to come back to Nebraska until the proceedings are finalized.
Can I Get A Protection/Restraining Order during divorce?
Yes. Depending on the specifics of your case, the court may or may not be willing to open a new case just for the protection/restraining order. In that case, it should be dealt with through the divorce proceedings themselves. However, different jurisdictions handle this issue in different ways, and should be evaluated on a case-by-case basis.
What is Mediation in Divorce?
Mediation is an attempt to reduce the issues that require court involvement by agreeing on issues that are less contentious. A court-certified mediator will meet with you and your spouse to determine your position on a number of issues related to child custody, such as parenting time, vacation, schooling, etc. Mediation is often a court ordered requirement that must be satisfied before the parties ask the court to resolve any of their disagreements. Mediation typically does not resolve financial issues such as the division of a pension or spousal support.
Is Mediation confidential?
Yes. Matters discussed only with the mediator remain confidential and will not be disclosed to another party without your consent. However, if you discuss matters with other persons, such as the other party, you cannot expect that the information will remain confidential.
Are mediated agreements final?
Issues resolved through mediation go through several steps of approval. First, agreement must be reached through the mediation sessions themselves. Second, a party and their attorney will have an opportunity to object to the mediated agreement, which can cause those issues to be re-mediated. Matters not objected to become part of a final mediated agreement that will most often become part of the final order of the court. Lastly, however, if parties change their mind through the litigation process, they do have the opportunity to put the court on notice that they do not intend to abide by the terms of the agreement, hopefully supported by good reasons other than a change of whim.
Can I Get the House in a Divorce?
A marital home is often one of the biggest assets to divide in a divorce proceeding. The most common outcomes include: i) the house is sold and the proceeds divided; ii) one party keeps the house and has to pay the other party a part of the equity in the house; or iii) one party keeps the house outright. The specifics of a case will help determine which of these outcomes, if any, are most appropriate in the circumstances and therefore most likely to be ordered by a judge if no agreement is reached.
How is Property Divided during divorce?
Nebraska statutes lay out a number of factors that should be considered in dividing property through divorce. In summary, however, the court essentially decides what is fair under the circumstances. This can be a difficult question to answer, or to know how the court is likely to rule, which is part of the reason that property division in divorce can be very contentious. Previous decisions by Nebraska judges can provide some guidance as to how a court is likely to view a particular set of circumstances, and an experienced lawyer can provide guidance on what outcomes may be likely in your case.
What about the retirement in a divorce?
Retirement is another one of the largest assets that are likely to be divided in divorce. Retirement accounts can also be one of the most complex assets to divide, because they are not acquired all at once, are subject to market performance, and involve a number of other variables that can complicate valuation and division. Whether a retirement account is divided in a divorce will depend on the specifics of any given case, but it absolutely is an asset that is eligible to be divided if the circumstances justify.
Can I Get Spousal Support (Alimony)?
Spousal support, also called alimony, is another determination that is based on statutory factors that can be oversimplified to: what is fair under the circumstances? An experienced attorney can help you understand what to expect, but it is important to note that if spousal support is not awarded at the time of a divorce, there are very few cases in which it can be later awarded.
Can I get Visitation with my child?
A parent has a fundamental, constitutional right to a relationship with their children. A court does have the power to override that parental right if there is good reason to believe that visitation would jeopardize the safety or well-being of the child. Even if those concerns are not present, the frequency, timing, and conditions upon which visitation occur can be crucial details that significantly shape the parent-child relationship. If you do not believe you are receiving adequate visitation with your child, you should contact an experienced family law attorney to help fight to increase those rights.
Can I Get Child Custody?
A parent has a fundamental, constitutional right to a relationship with their children. A court does have the power to override that parental right if there is good reason to believe that custody would jeopardize the safety or well-being of the child. The court will consider the best interests of the child in deciding who the better decision-maker(s) and care-taker(s) would be in the child’s life. This is often one of the major battles fought through family law courts, and the assistance of a competent family law lawyer can help you navigate the process and increase your chances of securing a favorable outcome.
Can I get Child Support?
Child support may be available to parents who have at least partial custody of their child. The level of child support appropriate in any given case is determined by a number of factors including income of both parents, the number of children, and how much time the child(ren) spend with each parent. There are a number of tools available to parents who are owed child support to help them keep track of payments, and enforce the other parent’s obligation if they are not paying the amount they are obligated to pay. The State of Nebraska may even intervene to help enforce child support obligations if public benefits are involved in the family. To determine if you are entitled to child support, consult with a family law attorney who should be able to give you at least an estimate of what a court would likely order to be paid.
Can I change/restore my name during divorce?
Outside of divorce, a name change is usually an entirely separate proceeding with its own filings and hearings. However, divorce is one of the only times when you can include a change of name as part of the larger court proceedings. As long as you follow the rules and procedures of the court, you must simply ask for a restoration of your maiden name to be included in the final divorce decree.
What Grandparents Rights in Divorce?
Grandparents typically have no right to participate directly in a divorce. While grandparents can be a great source of support, evidence, and testimony, it takes a separate action to be brough which could allow the grandparents themselves to become an interested party in the children of the marriage. A pending or final dissolution of marriage is the condition which allows grandparents to bring their own suit to court.
What is Legal Separation?
Legal separation is a precursor to divorce. The result of a legal separation is not a dissolution of the marriage, but if the parties later pursue divorce, the separation can be converted into a full divorce. Importantly, legal separation is a formal legal process which requires court involvement, and is not the same things as the parties simply separating on their own, such as one spouse moving out.
What is Annulment?
Annulment is essentially a cancellation of a marriage, rather than a dissolution. The key difference is that under an annulment, the marriage was never really valid to begin with, and the court is asked to recognize that fact. In divorce, the marriage was valid and the court is asked to unwind that union. There are very specific and limited grounds upon which annulment can be granted, the most common being force or fraud. If you believe that grounds exist for annulment, it may be to your advantage to explore that option rather than going straight to divorce.