Amy Sherman
(formerly Amy Geren), Attorney at Law - Nebraska Bar #20101
William D. Gilner, Attorney at Law - Nebraska Bar #22080
Bruce R. Friedman, Legal Assistant, Office Manager, Child and
Family Investigator & Mediator
2580 South 90th Street
Omaha, Nebraska 68124
Phone - (402) 934-9903
Fax - (402) 934-7076
Our practice specializes in family and matrimonial law including:
Welcome to Omahadivorcelaw.com. This is an online resource for information regarding divorce and family law in the state of Nebraska. The following information is provided to give you an overview of the legal process involved in getting a divorce.
FILING A COMPLAINT FOR DISSOLUTION OF MARRIAGE
A divorce starts by filing a “Complaint for Dissolution of Marriage” in the District Court of the county in which you or your spouse are residing at the time of filing. In order to file for divorce in Nebraska, you must have lived in this state for at least one year prior to the date the Complaint is filed. If you have not lived in the State for a year you can either wait to file the Complaint for Dissolution of Marriage or you can file a Complaint for Legal Separation and then once you have met the one year jurisdictional requirement you can convert the case to a Dissolution of Marriage. The Complaint sets forth:
• The names and addresses of the
parties;
• Who is representing the Plaintiff;
• The date and place of the marriage;
• The names and year of birth of any minor children
(minor children are children who have not yet reached the age of 19);
• Where the children have been residing for the past 5
years;
• When the parties separated;
• The Plaintiff’s belief as to the fitness of each parent
and whether the children’s best interests will be served by custody in the
father, mother or both parties;
• A statement that the parties’ marriage is irretrievably
broken, meaning efforts at reconciliation have been made and those efforts
failed;
• Statements indicating whether either party is in the
military or infirm or incompetent.
• Whether any restraining order or no contact order has
ever been entered regarding the parties to the case;
• If there are children whether the parents have worked
out a parenting plan yet.
The “Plaintiff” is the spouse who files the Complaint. The “Defendant” is the spouse who responds to the Complaint. Most statements made in the Complaint are standard legal requirements under the applicable law setting forth what the Complaint should say. Filing for divorce in Nebraska costs $157.00. A vital statistics form and confidential information form containing the parties’ and the children’s names, social security numbers, dates of birth and ages must also be filed when the Complaint is filed.
The Defendant, the spouse who the Complaint is filed against must be served with the Complaint by personal service. A sheriff’s process server or a constable will come to the Defendant’s place of employment or residence and providing him or her with copies of these papers. If the Defendant cannot be located, other methods are available under state law to effectuate service. However, oftentimes, people send out a document called a “Voluntary Appearance” for the Defendant spouse to sign and return to avoid the need for personal service by a process server.
If you have received a voluntary appearance from your spouse’s lawyer, you should contact a lawyer before signing it. Signing any legal document without the advice of an attorney is not wise. Service of the Complaint by the sheriff or constable typically costs around $30.00.
ANSWER AND COUNTER-COMPLAINT
Thirty days from the service of the Complaint or thirty days from the date a voluntary appearance is filed with the Court, an Answer to the Complaint must be filed with the Court. A Counter-Complaint may also be filed.
A Counter-Complaint is necessary when the party answering the original Complaint, the Defendant spouse, wants to seek some relief not set forth in the original Complaint such as alimony. A Counter-Complaint should also be prepared so if the spouse making the original filing chooses to dismiss their case, the case can still proceed on the Counter-Complaint that is filed. Failure to do so could cost you an additional filing fee of $157.00. The Plaintiff then has 30 days to file an Answer to the Counter-Complaint.
WAITING PERIOD
A divorce Decree cannot be entered by the Court until the expiration of a sixty day waiting period. This 60 day period begins the day after the Defendant is served or his or her voluntary appearance is filed with the Court and expires 60 days later. This is the earliest the Court can enter a decree dissolving your marriage. Of course, it typically takes much longer than this to get a divorce completed. The time it will take to complete your divorce depends on a number of things, including what “discovery” needs to be served and what, if any, pretrial motions need to be filed. In Nebraska parties must also comply with the Parenting Act and in Douglas County the provisions of Local Rule 4-3 if children are involved. This is discussed in greater detail below.
PRE-TRIAL MOTIONS
In many divorce cases, it is necessary to file a Motion for Temporary Orders. This Motion asks the Court to enter certain orders that will remain in place until the final trial or settlement of the case. Examples of some of the things that are typically addressed in temporary orders are: custody and visitation, possession or use of the home, payment of child support and/or alimony, continuation of health insurance benefits, who will pay what joint debts, who will have use of certain joint assets, i.e. automobiles, boats, etc.; and restraining orders preventing either party from selling, borrowing against, or otherwise disposing of joint assets. It typically takes about 2 to 3 weeks to get a Motion for Temporary Orders heard once it is on file. The time it will take for the Court to hear a motion for temporary orders depends upon the schedule of the Judge that your case is assigned to. Temporary hearings in Douglas County are held in the Judge’s chambers with just the Judge and the lawyers present. Your testimony is presented to the Court in this hearing by a written affidavit that you will sign prior to the hearing.
DISCOVERY
The discovery process allows both parties and their attorneys to find out the following:
• what assets and debts exist, • whether there is any separate property that should not be considered as part of the marital estate, • where the best interests of the children lies with respect to custody and visitation, • what each party is earning and what deductions they may have from their wages, • what each party has earned over the term of the marriage if alimony is at issue, • and other information necessary to go to trial or settle the case.
There are many methods used in discovery. These methods may include:
• sending written questions called “Interrogatories”;
• sending requests that the other party produce certain documents,
• taking a deposition which is a question/answer process that occurs before a court reporter,
• sending subpoenas requesting that a bank, medical care provider, daycare provider, counselor, employer or other person produce certain records.
All methods of discovery result in you incurring attorney fees. Some methods of discovery result in additional costs being incurred, i.e. a deposition requires the services of a court reporter who will charge for his or her time.
Many lawyers tend to use form or standard discovery for every case. In my effort to make your case more affordable, I do not do this. You and I will meet and discuss all of these types of issues and decide what information, if any, we really need from your spouse or some other party. Obviously, most people who are married have a good idea what they own together and what debts they have, or perhaps what their spouse earns a year. I try to limit discovery to those matters that we really need information on in your particular case. Of course, many times I receive a lengthy set of form interrogatories from the opposing attorney. When I do, I will forward them to you to respond to and we are required to answer fully and completely even though it seems like a waste of time.
If you have minor children with your spouse, and you are seeking a divorce in Nebraska the two of you will have to attend a parenting education class. In Douglas County the class is entitled “What about the Children?” You will also have to try and mediate what is called a “Parenting Plan” that sets forth custody and visitation arrangements for your children. This Parenting Plan can be completed a number of ways. A formal mediation with a mediator is not necessary if the lawyers working on your case, with your assistance, can come up with a draft of a parenting plan that you both agree on. If you and your spouse are unable to agree on a parenting plan with your lawyers’ assistance, you and your spouse would have to see a mediator and attempt a formal mediation. The Conciliation Court (the entity that administers Rule 4-3 in Douglas County, Nebraska cases) will assign a mediator. You will pay the mediator an hourly fee to be split by the parties. Sliding scale fees are available for those who are indigent. If mediation fails, you can then proceed to certify your case for trial and go to trial on the issues that would normally be contained in a parenting plan, i.e. custody and visitation. Your case cannot be set for trial until you have complied with the Parenting Act and Rule 4-3.
It is important for you and your spouse to try and sit down and make these decisions together. It will save you legal fees and will result in you both ending up with an arrangement that you created together rather than something a judge created for you. You know your children better than any lawyer or judge. You don’t you want someone to make these important decisions for you. I know it is difficult to work these things out you’re your soon to be former spouse. I can assure you, as a divorced parent myself and a lawyer, I would never go to trial in a custody case if there was any possible way to avoid it. Of course, sometimes there is no way to avoid a custody trial. I have tried a number of custody cases and will always try to give you a clear idea of what we need to present to the Court as evidence and what our chances of success are. Of course, there are no guarantees when it comes to going to trial.
“Legal Custody” means who will make the major life decisions for a minor child. It was typical that the parent who had physical custody of the child was also awarded legal custody. That has changed somewhat and the courts are more and more inclined to award parents “joint legal custody” of the children. This means that you and your spouse must decide these major life issues together. Examples of these types of decisions would be school enrollment, elective surgeries, extended trips away from home, and immunizations. A court will not award joint legal custody to parents if, it appears to the judge, that the two of you will never be able to work together to reach these decisions, primarily because that judge is worried that you will be back in his courtroom every time you can’t make a decision. You and your spouse can agree to joint legal custody and put this in a parenting plan that you both sign. If you agree on this issue, the judge will typically approve your agreement.
PHYSICAL CUSTODY OF CHILDREN
“Physical custody” means where the child will primarily live. If one parent has sole physical custody the other parent has “visitation”, which we now tend to refer to as “parenting time.” “Standard” parenting time in a sole physical custody situation is typically one evening a week and every other weekend. A sole physical custodian is also sometimes called the “primary possessory parent.” If you and your spouse agree to some other split of time for the children, then you may have a “joint physical custody” arrangement. It is hard to say what the Nebraska courts determine to be joint physical custody, but a good rule of thumb would be that a 40-60% or 50-50% split of time (or anything between the two) is probably a joint physical custody arrangement. If your child is with you more than 60% of the time you are probably a sole custodial parent. If your child is with you less than 40% of the time you most likely are the non-custodial parent with parenting time.
HOLIDAY VISITATION AND VACATION TIME
Every parenting plan should set forth a list of holidays that you and your spouse are going to share time with the children during. There are “standard” lists that people have developed with the most used list coming from a Supreme Court of Nebraska case entitled Wilson v. Wilson. However, you and your spouse can create any list of holidays you choose to include. Obviously, if you are of a particular religion or ethnicity, you may have holidays to divide that would not be listed in these standard holiday schedules.
Each parent should have some block of time each year to use to take a vacation with the child or children. This is typically provided for in a parenting plan. Some parents agree to switch custody and visitation schedules during the summer months, particularly if they live far apart from one another. This allows the children to have basically one home they come and go from during the school year and then spend more time with the non-custodial parent during the summer months.
Generally speaking, a non-custodial parent pays child support to a custodial parent. I am speaking here of “physical custody” not “legal custody”. Legal custody has nothing to do with the calculation or payment of child support. There are many rules or practices related to the calculating of support that you might not find in this information but have developed in the case law of Nebraska. It is important to get an attorney’s advice when trying to calculate child support. You may be entitled to deductions or a deviation to the guidelines that would normally apply.
If you have joint physical custody, an additional worksheet needs to be completed to calculate support. Even if you and your spouse are going to have the children equal amounts of time one of you may still owe support to the other. This depends on the difference in your incomes.
Daycare is not included in child support. Each party is to contribute to the payment of daycare in certain percentages which are calculated by comparing your own net monthly income to the joint net monthly income.
The custodial parent is responsible to pay all costs, other than daycare, incurred to care for the child or children such as housing, utilities, food, and clothes. If you are paying child support and are a non-custodial parent, you should not give your spouse additional monies for these things—that is what your child support is for. A non-custodial parent paying support really has no right to dictate how his or her support payments are spent. If you give your spouse additional monies above and beyond your child support payment, these monies will not be credited towards your child support obligation unless they are paid through the Nebraska State Child Support Payment Center. That being said, you and your spouse may agree to divide certain extra expenses such as dance lessons, baseball fees, uniform costs, and other extracurricular expenses. An agreement to do that should be contained in your parenting plan or your divorce decree. If your child support is determined pursuant to a joint physical custody calculation then the parents will split certain other expenses that are particular to the children—clothing, uniforms, school lunches and other items which are for the child directly.
You do not legally owe any support until an Order is entered by the Court stating specifically what you are to pay each month. If you separate from your spouse and he or she has physical custody of the children, it is important to remember that any monies you provide to him or her should be kept track of carefully. Even though you are not legally obligated to support your spouse and the children during this period, a court may make this up through some other method. It improves your position with the Court if you can show that you have been making some support payments before the temporary order was entered.. Just be sure to make those payments in a way that you can memorialize and keep track of how much you pay.
If you will be making child support payments those payments will likely be taken out of your paycheck automatically. If you are receiving support payments, you will be getting those typically from the Nebraska Child Support Payment Center. You can arrange to have those payments automatically deposited into your bank account.
Child support generally ends when the child turns 19 years of age unless the parties agree to support the child past that age. Child support can be modified at any time if there is a change in a party’s income, a change in where the child is primarily living or some other material change in circumstance. If there is more than a 10% variance in the amount of support owed or due then you have met the “material change of circumstances” standard and can file an Application to Modify the support payments.
Child support cannot be discharged in bankruptcy and past due balances accrue interest. Rightfully so the State of Nebraska has taken a hard stance for those who fail to pay child support. If you should become delinquent in your child support payments the following can happen:
• You can be held in contempt of court for not paying child support, which may or may not include time in jail. • Any professional license you might have can be taken away by the state. • Your driver’s license can be taken away. • A state or federal tax refund you might otherwise receive can be applied to your child support arrearage rather than being paid to you.
If your spouse is not paying his/her child support, this does not allow you to refuse him or her parenting time.
Whether you or your spouse is entitled to alimony, also known as spousal support, depends on a number of different factors. With respect to alimony, Courts generally reserve an award of alimony to a spouse who has been married 5 years or more, but there is no hard and fast rule. The Court also considers the following factors:
• whether the couple
has children;
• whether one spouse stayed home to care for
the children, thereby resulting in his or her own career and income earning
potential being put on hold;
• whether a spouse left a job to relocate with
you thereby interrupting his or her career or education;
• the amount of education and/or training each
party has;
• the job market and whether a spouse who has
been out of the job market can easily return to a profession or career;
• a spouse’s effort to further the other
spouse’s career, assist with his or her business, volunteer his or her services
in ways that improved the other spouse’s standing and recognition in the
community.
If no alimony is awarded in the original divorce decree alimony can never be sought at any time in the future. If alimony is awarded it can be modified at any time for good cause shown.
Your lawyer may be able to find cases somewhat similar to yours that have been appealed to try and “guesstimate” what you may receive or pay in alimony based upon your specific circumstances. Otherwise, they are simply relying upon their past cases and their experience with the particular judge assigned to your case in making a guess as to what you may pay or receive in alimony.
PROPERTY SETTLEMENT AGREEMENTS/PARENTING PLANS
Oftentimes, in fact most of the time, the parties to a divorce work out the terms of their divorce themselves with the assistance of counsel and at times a mediator. This is the best situation for all involved. Reaching an agreement allows you and your spouse to make decisions about your future rather than putting those decisions in the hands of a stranger—the judge assigned to your case. The process of working out a property settlement is like any other negotiation. We often don’t put our best offer out on the table right away. There is some haggling and maneuvering that typically occurs. Ultimately, they say the sign of a good settlement is one that no one is totally happy with. If you and your spouse both walk away a little unhappy you probably got the case resolved much the same way a judge would have decided it but you also saved a substantial amount in attorney fees and bad feelings. A trial is oftentimes very unpleasant and nerve-racking. Also, with a settlement, you and your spouse can decide who will get what assets and what debts. If you go to trial a judge makes those decisions for you.
If you agree on a settlement and sign off on a document entitled Property Settlement and Proposed Decree then your case still must go before the Judge on what is called a prove-up. At least one spouse must take the stand and give some basic testimony related to the marriage, the efforts to reconcile, and the fairness of the agreement so the Judge can make the finding that the agreement is fair and equitable and that the Parenting Plan is in the children’s best interests. A prove-up takes about 15 minutes. At the conclusion of a prove up if the Court determines that the agreement is fair he or she will sign the Decree at that time.
Your Decree can be appealed by either party for 30 days past the date it is signed. Once those thirty days run the Decree is final and cannot be appealed. If your spouse is on your health insurance plan through your place of employment, the health insurance carrier must continue to carry him or her for the same price—just as if they were still your spouse—for 6 months after the date the Decree is filed with the Court. He or she will then be offered COBRA benefits by the carrier at an increased premium that he or she will have to pay for. You cannot remarry anyone, anywhere in the world, for a period of 6 months after the date your divorce decree is filed.
MAIDEN NAME
The Wife in a divorce action can ask that her maiden name be restored to her in the Decree dissolving the marriage. The placement of this provision in the Decree is the only thing that needs to occur to effect the name change. However, you will need to obtain a certified copy of your Decree to get your name changed on your social security card and on your bank accounts.
If you or your ex-spouse fails to abide by the terms of the Decree you are in violation of a valid Court order and can be held in contempt of Court. This is usually done by one party filing a Motion and Order to Show Cause against the other. The party who has failed to comply with the Decree must appear in Court and tell the Court why he or she has not complied. The Court will then decide if the party is in contempt and will Order something to ensure that the party complies, i.e. a fine, jail time, wage withholding, a transfer of property by court order, etc. Oftentimes attorney fees can be recovered if you have to file multiple show causes to get your ex-spouse to comply with the terms of the Decree.
ANNULMENT
A legal (versus religious or church) annulment is available in only very limited circumstances where there is some reason to declare the marriage void. These reasons may include if your spouse was mentally ill and lacked the competency to enter into the contract of marriage, was under age, was married, was impotent and you did not know, or used fraud or force to compel you to enter into the marriage.
A legal separation is much like a divorce with respect to the process that people go through. You do not; however, need to live in the State of Nebraska for more than a year prior to filing a legal separation. For this reason, if people do not yet meet the residency requirement they often file a legal separation and then convert the separation into a divorce when the residency requirement is met. A legal separation does not result in you being divorced. It provides some certainty as to the financial status quo, what will occur with the children, support, etc. until you and your spouse can decide whether reconciliation is possible.
MENTALLY ILL SPOUSE
You may be bound to support your spouse even though your case is not one where alimony or spousal support would typically be awarded if your spouse suffers from a mental illness. Your spouse may also need the Court to appoint him or her a guardian or attorney if he or she is mentally ill when going through a divorce. If you suspect your spouse is mentally ill or if you are diagnosed with a mental illness you should let your lawyer know this immediately.
EXPECTATIONS REGARDING THE LEGAL SYSTEM
Many people naively believe that, if they can just
get the judge to listen to what their soon to be former spouse did, the judge
will make things okay. Unfortunately it doesn't work that way. Because
there are two sides to every story, judges often find it impossible to figure
out who is right or who is telling the truth in the short time they have to
deliberate.
Often, a judge will strongly encourage the lawyers
and litigants to work it out among themselves. It is said that most cases settle
on the “courthouse stairs”. The problem with settling your case so late in
the process is that you have paid an attorney to represent you clear through the
case and prepare for the trial. You save a lot of money if you can work
out a resolution to your case early on in the process.
People going through divorce often see their own position as the "right" one and cannot believe a judge won't see it the same way. But a trial is not about the truth; it is the telling of a story. What the judge hears will depend on how good a storyteller your lawyer is and how convincing you and your witnesses are. If you are stiff and wooden or overly emotional and hysterical, the judge may not believe you or may sympathize with your spouse. You must realize that whenever you turn a decision over to a judge, as opposed to reaching agreement with your spouse, you are both handing over control to someone else.I may try to put certain things into evidence before the judge that are excluded for technical reasons. For example, things other people have told you may be excluded because they are hearsay. Some things may be ruled inadmissible because the judge finds them to be irrelevant. And certain people may not be willing to get up on the witness stand and testify against your spouse under oath because they are afraid of repercussions. What actually comes out at a trial may not bear any resemblance to the way things really are.
All of these things factor into the Court’s decision in your case. It is important that you consider this when going through your divorce and trying to resolve the issues associated with the dissolution of your marriage.
SUMMARY
This information is provided to you as a fairly simply overview of common issues and concerns. There are many other things that can come up in divorce proceeding that you may not have read about in this summary. Every case is different to some extent. It is important that you not rely on this information to handle a difficult legal situation yourself. We hope the information provided is helpful to you and helps you understand the process that you may be going through.
We have lots of clients come to us during their divorce case and tell me that a friend who is lawyer told them that the case shouldn’t last this long, or that they should have won a particular motion that was filed, etc. It is important that you don’t substitute their judgment and advice for ours. We are guessing that they do not have the type of specific knowledge about your case that we have learned during our attorney/client relationship. Without a complete understanding of your case a person cannot give you accurate advice. We encourage you to speak with us if you would like a second opinion in your case. Just like with important medical issues you should seek a second opinion if you have important decisions to make related to legal issues. Further, you should feel confident in the counsel that you select to represent you. You will not hurt our feelings or upset us if you wish to get another opinion about your case.
We look forward to assisting you in getting through this difficult time.
Amy, Will and Bruce