Divorce and Legal Separation Questions

Divorce and Legal Separation Questions

Common FAQ on Divorce and Legal Separation Questions provided by Legal Aid of Nebraska.


What does Pro Se mean?

Pro Se means that you are representing yourself.

What’s a Dissolution?

A Dissolution is the term used by the Nebraska Statutes for a divorce.

What’s a Legal Separation?

In Nebraska you can get divorced if you have lived in Nebraska for one-year. If you have been in Nebraska for less than a year, there is another alternative. You can file for a legal separation.

In a legal separation case a Court can:

* Divide up property between the parties;

* Divide up debt between the parties; and

* Award alimony.

In a case involving children who have lived in Nebraska for 6 months, a Court also can:

* Decide the issues of custody and visitation; and

* Award child support.

The complaints for legal separation and divorce are a little different. Instead of alleging that there is no way you can save your marriage, you allege that you and your spouse live apart. Also, the caption in your complaint will read “Complaint for Legal Separation” instead of Complaint for Divorce.” A sample is attached.

A legal separation is like a divorce. But you remain married with a legal separation.

You can change your complaint for legal separation to a divorce complaint if:

* You have lived in Nebraska for one year before the legal separation is final.

 

o However, you may have to pay a filing fee when you change the complaint.

Once the court enters an order of legal separation, you cannot amend the complaint to ask for a divorce. Instead, you have to file a new complaint asking for a divorce.

You cannot marry someone else after you get an order of separation. You need a divorce to get re-married.

Even though a court can consider issues of custody and child support in a case for legal separation, special time rules apply.

Many of the documents you need for a divorce can be used for a separation. You can continue using this interview as if you are completing divorce proceedings. Just make sure that every reference to “divorce” is changed to “legal separation” before you file anything.

Neb.Rev.Stat. §42-347

Neb.Rev.Stat. §42-350

Neb.Rev.Stat. §42-351

Neb.Rev.Stat. §42-353

Can I get an annulment since my spouse and I never lived together after our marriage?

No. Under Nebraska law, any one of the following five reasons will allow you to get an annulment: 1) the marriage between the parties is prohibited by law (for there to be a valid marriage, both parties must be at least 17 years of age and free from venereal disease); 2) either party is impotent at the time of the marriage; 3) either party had a spouse living at the time of the marriage, 4) either party was mentally ill or was mentally retarded at the time of the marriage; or 5) force or fraud.

The fact that you and your spouse never lived together and/or consumated your marriage does not give you a reason to ask for an annulment.

What’s the difference between Legal Separation and Divorce?

There are two differences between a Legal Separation and a Divorce. Nebraska law requires that at least one party to a divorce has lived in this state for one year immediately prior to the filing of a Petition for Divorce. There is no such requirement for a Legal Separation.

A Legal Separation decides custody, support, property/debt division, etc. just like a Divorce, but the parties still remain married to each other.

My spouse and I have been separated for a long time and I have had children during this time that are not my spouse’s. Is this a problem?

No, not necessarily. Under Nebraska law, any child born while his or her mother is married is presumed to be a child of the marriage. To prove otherwise, there must be some sort of evidence that the husband is not the father. For example, if identity of the father (paternity) has been established by the Court or the real father has signed a document stating he is the father, this would be enough to show that the husband is not the father of the children. If the husband or wife states that the child is not the husband’s, this is not enough proof for the Court.

If there is no evidence that the child is not the husband’s, the Court must find that the husband is the father and the Court will order the husband to pay child support.

What if I don’t know where my spouse is?

The law requires that you must serve a copy of your Petition for Divorce upon your spouse. Service (notice that the divorce was filed) is generally obtained by having the sheriff give a copy of the petition to the other party either at home or at work.

Nebraska law provides that service may be obtained by “publication” with approval from the Court. This means that there will be a notice in your local newspaper that you have filed for divorce. Before the Court will let you publish your notice, you must have made a good effort to locate your spouse. You will have to complete an affidavit (a statement given under oath) describing the efforts you have made to locate an address where your spouse can be served. Unless you have tried all reasonable means to locate your spouse, the Court will not allow you to publish the notice.

Some examples of reasonable efforts are: contacting friends or family members to see if they can assist you in locating your spouse; internet searches; a letter sent to spouse’s last known address that is returned as undeliverable.

You should also know that if you get service by publication, the Court cannot enter any orders dealing with money issues (i.e. child support, alimony, debt division). If you are able to locate your spouse at some point in the future, you can go back to Court so that the judge can decide these issues.

My spouse and I have divided all of our property and debt. Why do we have to include that in the divorce papers?

Every petition for divorce should contain some statement asking the Court to approve of the property and debt division. Many times, parties have been separated for a long period of time and things have already been split between them. In that case the Court simply wants to approve of the division. As a practical matter, the Court is not going to worry about the distribution you and your spouse have agreed to unless one of you objects or the Judge believes the distribution is not fair.

You should be aware, however, that certain debts may be your responsibility regardless of how you decide to divide them. For example, car loans and home mortgages that were obtained by both of the parties will likely continue to be the responsibility of both parties. Lenders are not eager to remove a party’s name from a note, since they have the right to seek repayment from either or both of the parties who signed the loan document.

If the Court orders your spouse to pay a debt and he or she does not, the creditor can require you to pay. If you do pay, all you can do is ask the Court find your former spouse in contempt for not paying the debt and try to collect the money you paid on the debt from your spouse

Again, if you obtain service on your spouse by publication, the Court cannot make any orders regarding property and debt division. Those issues can be addressed if you are able to locate your spouse at a later time.

Shouldn’t I be able to get alimony? What about spousal support?

Spousal support and “alimony” are the same thing

Whether someone can get spousal support depends on a number of things including:

* How long you were married;

* The contributions each of you has made to the marriage;

* Whether one of you gave up working to raise your children;

* One party’s education, ability to get a good job, health, and income as compared to the other spouse;

* One person’s need for alimony and the other person’s ability to pay alimony; and

* Whether one of you is in a much better financial situation compared to the other spouse.

There are so many factors to consider in a decision about alimony that there is no basic standard for when alimony will be awarded by a court.

But a way to think about it is whether one spouse will be significantly economically disadvantaged as the result of a divorce. In that situation, alimony would be used to provide a certain level of support while the disadvantaged spouse gets on his or her economic feet.

There are a number of important things to remember about spousal support. Here are a few:

* It is a complicated issue.

* Generally it is a temporary bridge paid for a specified period of time. It is not intended to be a lifetime supplement to a person’s income.

* An award of spousal support could affect a person’s eligibility for public benefits, including Medicaid.

* If you get re-married, spousal support ends.

* To order spousal support, a court will need specific proof about differences in the parties’ ability to earn money, and why those differences exist.

* A court cannot order your spouse to pay alimony unless your spouse has been personally “served” with notice of the divorce or has “voluntarily appeared” before the court.

* If you do not ask for alimony at the time of the divorce, you give up the possibility of ever getting alimony.

Resources: Divorce in Nebraska, Dunne & Koenig, pp. 138-144 (Addicus Books, 2d Ed. 2013); Neb.Rev. Stat.§42-365.

How long does all this take?

Under Nebraska law, the soonest a person can get a divorce is 60 days after papers are filed in Court. Realistically, the time is closer to 90-120 days.

If you are having the sheriff serve your spouse with the Petition for Divorce, the sheriff has 20 days from the date the summons is issued to get service. Once your spouse receives the Petition, he or she has 30 days in which to file an Answer. Nebraska law requires that a total of 60 days must pass after the date of service before a party can go in front of the Judge for a final hearing.

If you and your spouse are on good terms and he or she is willing to sign a Voluntary Appearance (a paper stating that he or she has received a copy of the Petition and does not wish to be served by the sheriff), you could cut out the 20 days the sheriff has to serve the Petition.

The Decree of Divorce will become final for purposes of appeal 30 days after it is signed. For purposes of continued health insurance and remarriage, the Decree is not final for six months. This means you cannot remarry anywhere in the world for six months after the Judge signs the Decree.