Nebraska Separation Laws: An Intro
Understanding Nebraska separation laws is crucial for any couple contemplating the end of their marriage. Separation does not mean a legal divorce. Instead, it is a period that some couples use to determine if living apart may help resolve their marital problems. The legal separation process in Nebraska has many of the same requirements and related issues as divorce. Petitioners are required to fulfill residency requirements and file the correct paperwork with the district court of the county where at least one spouse resides . A judge decides if the separation is granted, and whether to incorporate custody, support and property settlement terms into the decree. Legal separation can offer couples a positive means of coming to terms with the reasons their marriage is no longer functional. In many cases, couples utilize a legal separation and proceed to reconciliation or divorce shortly thereafter. In other situations, these couples find a sense of peace with the outcome of the process, and feel comfortable in remaining separated.
Nebraska Separation Versus Divorce
Legal separation and divorce may seem like two sides of the same coin, but there are critical differences that can impact how you approach your marital issues from both a practical and legal standpoint. When evaluating whether a legal separation is right for you — or if divorce might be a better alternative — consider the following key points:
When it comes down to it, a legal separation allows you and your spouse to figure out whether you can resolve your marital problems and reenter the marital fold. If you believe that this might be possible, a legal separation could be the way to go.
How to Get a Legal Separation
Separation, sometimes called Supervised Separation, is a way to formalize your marriage if you do not want a divorce. In a separation, both parties would plan to be apart while still being married. The parties may live apart, but they are still considered legally married. Some of the same issues as divorce are addressed in separation, such as alimony, custody, support, and property division.
The first step is to hire an experienced lawyer to represent your interests. Nebraska does not require a court order for parties to live apart. A Separation Agreement is your legal agreement with your spouse as to how your affairs will be handled while you are living apart. The Separation Agreement can cover the following:
Once the majority of the issues have been addressed, the Separation Agreement will be signed by both parties. The current Custody Order will need to address the residential placement and parenting schedule for child(ren) of the marriage.
If you and your spouse have resolved alimony, parenting time and health care coverage for the children, you can prepare a Decree of Separation. A Decree of Separation will be almost identical to Decree of Dissolution of Marriage. The Decree needs to be signed by you, your spouse and your lawyers. While the Separation Agreement has the same binding power as a legal contract, the Decree of Separation is a Court order. Therefore, in the case of another party not honoring the terms of the agreement, a contempt action can be filed with the Court.
However, the most important thing about separation is that the parties need to agree on the major issues. If there is any animosity, a legal separation could be the precursor to a divorce. The courts will not accept a Separation Agreement that has not been agreed to by the parties.
The Use of Legal Agreements in a Separation
Agreements are an integral component of any separation. During the process, either as part of the divorce or for those couples who do not wish to get a formal divorce, the parties need to reach legal agreements regarding their future roles and responsibilities. A summary of the types of separation agreements that may be made follows:
Financial Agreements – These agreements can be premised on a legal separation, a divorce filing or dissolution petition, or based on an amicable agreement between the spouses without either party filing for divorce. They can outline how the spouse will share their debts and how they will divide their assets. The separation agreement could provide for the division of property in various forms, which may include: Child Support – Child support agreements are common components of separations. A court may order child support, but even if the parents have not filed for divorce, they may both agree to pay child support for one another’s children. Because Nebraska uses a child support guidelines sheet, courts will most likely abide by the recommendations as defined therein. There will also be provisions for the visitation rights of each party after the separation agreement is executed.
Custody – Parents will have to make provisions for child custody and where the child will live. There are two types of custody: (1) legal custody and (2) physical custody. Legal custody involves the right of the custodial parent to make decisions for the child, while physical custody refers to where the child will reside.
Tax Benefits – It is possible that if one spouse earns significantly more than the other, that real property and assets be left in the name of the low-earning spouse to benefit from the tax deductions accruing from ownership.
Separation and Money
While separation may not require judicial intervention in the same way that a divorce does, the financial considerations involved are very much the same. A Divorce Judge will divide your assets and debts in an equitable way upon the entry of a Divorce Decree. However, if the parties have physically separated without entering into a Separation Agreement, you are still strongly advised to seek legal assistance to achieve your financial goals, because it is very likely that one party to the separation will be the moving party in the divorce and will then ask the Divorce Court to treat the assets and debts as needing an equitable division in light of the earning potential and economic circumstances of the parties to the divorce. The judge should then look back on the separation in similar terms as those applied to the divorce. As a result, it is important to track any income and expenses, and to analyze what your living expenses will be while living separately.
Another important financial consideration during a Nebraska separation is spousal support or alimony. Under Nebraska law, a husband or wife may be obligated to provide one-time or periodic payments for the support of the other spouse upon a divorce or legal separation. However , alimony is discretionary upon the court and may not be ordered at all. Circumstances where a judge will be more likely to award spousal support include cases involving long-term marriages, very high financial obligations and relative minimal income, couples with large ages differences (i.e. a husband in his 20’s married a woman in her 50’s), and when one spouse stayed at home to care for the marital home and children during the marriage.
Finally, the parties’ property should be accounted for when living separately. Nebraska courts will consider increases and decreases of property value to determine vision of property. Nebraska does not have community property, so each spouse is responsible for his or her own property. These concerns become heightened because a separation is usually a time of emotional distress. If either spouse irresponsibly frivolously spends money earned during the separation, the court could penalize or deny that spouse’s share in the marital estate. On the other hand, a spouse should also keep in mind that new debt assumed by their spouse is just that – newly acquired debt that is the sole responsibility of the spouse who incurred it. Controversies involving the financial aspects of separation are highly technical and best decided by a lawyer experienced in such matters.
The Children (and Custody)
Divorce and Separation Law: Issues for You and Your Kids
On the heels of outlining some of the problems that occur in a Nebraska legal separation, I thought it important to now look at the issues with your children and how a legal separation impacts children and custody issues.
Whether you are divorced or legally separated, the issues of children will be an important consideration. Nebraska courts determine legal custody at the time legal separation proceedings start. Custody can only be modified on the basis of a substantial and continuing change of circumstances. Child custody arrangements may be decided by mutual consent. It is important to remember that, in all child custody matters, the court considers solely the best interests of the child.
Pursuant to Nebraska statutes the following factors may be considered when determining if a requested modification of parenting time is in the best interest of the child: A divorce causes many changes that often place a strain on the children. However, with two parents working together for the good of the children, it is possible to arrive at new workable arrangements for all involved.
Turning a Separation Into a Divorce
Converting Separation to Divorce in Nebraska
Just as a divorce can be converted to a legal separation, the reverse is also true. If a person has been living separately from their spouse but is not yet ready to divorce, they can initiate their legal separation and then convert that to a divorce at a later date.
Divorce and legal separation are almost identical in all respects except for a few critical areas. When a couple is granted a divorce, the terms of their divorce decree are final and binding once the decree has been signed by the court. The parties then must wait at least six months before filing for a modification of the decree. In a legal separation, however, those terms are only temporary—and can be changed at any time if both parties agree. When a divorce is finalized, all marital property is divided and may not be touched unless an agreement is made and the decree is altered. Again, the terms of a separation can be altered at any time by both parties.
While the actual process of converting a legal separation to a divorce is relatively quick, there are some important steps involved. For starters, a new court filing is required to initiate the process. A copy of the current legal separation must be attached to the new filing so that the court has copies of all relevant information when the time comes to review the request.
After the court has received the petition for divorce, the person who initiated the action will be sent a court date. On this date, a decree of divorce will be signed to end the legal separation. Since a legal separation cannot be undone, the divorce decree will include all provisions and directions for establishing a divorce. For example, shared custody with the children, division of property, child support, alimony, permanent guardianship of children, or the switch from one to the other.
When the divorce decree is signed, then the legal separation is considered finalized. In many circumstances, the couple can end their separation without lengthy proceedings through the court, acting as an ordinary divorce. There are no real court proceedings or hearings involved, and the process is finalized immediately.
Who Needs to Convert a Legal Separation to a Divorce?
It may not always be necessary to convert a legal separation to a divorce. This can happen when there are disputes between the spouses regarding the separation terms or when legal separation is a way to postpone the inevitable. For some families, a conversion is the best choice. Others can work things out without going through all the time, expense, and heartache of a legal divorce.
Legal Guidance and Representation
Seeking legal advice and professional representation while dealing with separation can be beneficial in many ways. Firstly, a family lawyer that regularly represents clients in Nebraska courts will have a good understanding of the separation requirements for this state and be able to assist you with meeting them. A lawyer, during your initial consultation, will collect a lot of information from you and begin to learn about you and your situation. An experienced family lawyer in Nebraska can accurately predict how a judge may view a case and, therefore, offer specific advice. In big-picture terms , having a lawyer on your side may help you avoid making mistakes while dealing with familial issues.
When choosing a lawyer it is important to make sure that he or she has experience in dealing with separations in Nebraska specifically. Your separation may involve a lot more than just going through the paperwork. It may be more beneficial to hire a lawyer that primarily practices family law, in order to get the best representation possible. You will probably have an initial consultation with a lawyer. This meeting is usually free of charge and can provide you with information about what to expect, as well as allow you to get to know the lawyer a little better.