Divorce and Legal Separation in Nebraska
Divorce and legal separation are significant decisions that many couples face when experiencing marital difficulties. In Nebraska, understanding the distinctions between these two legal processes, as well as the implications of each, is crucial for making informed decisions. This article explores the nuances of divorce and legal separation in Nebraska, outlining the procedures, benefits, and considerations involved.
Understanding Legal Separation in Nebraska
What is Legal Separation?
Legal separation is a formal process that allows a married couple to live apart while remaining legally married. According to Nebraska Revised Statute Section 42-361.01, a legal separation requires the couple to live in separate locations. Sharing the same house but using different bedrooms does not qualify as legal separation under Nebraska law.
A legal separation addresses various aspects of the marital relationship, such as the division of assets and debts, child custody, and support obligations, without dissolving the marriage.
Formal vs. Informal Separation
Informal Separation: An informal separation occurs when a couple decides to live apart without any legal proceedings. During an informal separation, the couple is still considered married, and there are no court orders defining their rights and responsibilities. This type of separation can serve as a trial period for couples considering divorce.
Formal Separation (Legal Separation): A formal separation requires filing a Complaint for Legal Separation with the court. This process initiates a legal action similar to divorce, involving service of the complaint to the other spouse, potential mediation, and court orders concerning support, custody, and property division.
Reasons for Legal Separation
Legal separation can be an alternative to divorce for various reasons, including:
Trial Basis: Couples may choose legal separation as a temporary arrangement to address issues such as substance abuse while hoping to reconcile in the future.
Religious Reasons: Some couples opt for legal separation to comply with religious beliefs that stigmatize divorce.
Health Reasons: When one spouse has health insurance through the other, legal separation allows the spouse with serious health conditions to retain coverage.
Financial Reasons: Remaining legally married can offer benefits such as tax advantages, health insurance, and inheritance rights.
Legal Separation Process
Filing a Complaint: One spouse files a Complaint for Legal Separation with the court.
Service of Complaint: The other spouse must be served with the complaint or sign a Voluntary Appearance.
Parenting Class and Mediation: If the couple has children, they must attend a co-parenting class and may be required to mediate to create a parenting plan.
Temporary Orders: The court may issue temporary orders for custody, support, and property division during the separation process.
Decree of Legal Separation: If the couple agrees, the court issues a Decree of Legal Separation outlining their rights and responsibilities.
Divorce in Nebraska
What is Divorce?
Divorce, or Dissolution of Marriage, legally terminates a marriage. In Nebraska, at least one spouse must have resided in the state for one year before filing for divorce. Unlike legal separation, divorce ends the marital relationship and all associated legal obligations.
Divorce Process
Filing a Petition: One spouse files a Petition for Dissolution of Marriage with the court.
Service of Petition: The other spouse must be served with the petition.
Parenting Class and Mediation: If the couple has children, they must attend a co-parenting class and may be required to mediate to create a parenting plan.
Temporary Orders: The court may issue temporary orders for custody, support, and property division during the divorce process.
Decree of Dissolution: After all issues are resolved, the court issues a Decree of Dissolution, officially ending the marriage.
Comparing Legal Separation and Divorce
Marital Status: Legal separation does not end the marriage; the couple remains legally married. Divorce ends the marriage.
Legal Obligations: In a legal separation, the couple retains some legal obligations to each other, such as health insurance benefits. Divorce terminates all legal obligations between the spouses.
Residency Requirements: Legal separation does not require a one-year residency in Nebraska, unlike divorce.
Benefits and Considerations
Benefits of Legal Separation
Health Insurance: A spouse with serious health conditions can retain health insurance coverage through the other spouse.
Religious Beliefs: Couples can comply with religious beliefs that oppose divorce.
Financial Benefits: Couples can benefit from tax advantages and inheritance rights while legally separated.
Considerations for Divorce
Permanent Resolution: Divorce provides a permanent resolution to the marital relationship, ending all legal obligations.
New Relationships: Divorce allows individuals to remarry, unlike legal separation.
Legal Separation Without Court Appearance
In Nebraska, if both parties agree on the terms of their legal separation, they may not need to appear in court. After 60 days from the service of the complaint, they can submit their Decree of Legal Separation and Hearing Waiver to the court. If accepted, the court can grant the legal separation without an in-person hearing.
FAQ: Divorce and Legal Separation in Nebraska
What does Pro Se mean? Pro Se means representing oneself in court without an attorney.
What is a Dissolution? A Dissolution is the term used for divorce in Nebraska statutes.
What is a Legal Separation? In Nebraska, legal separation allows a couple to live apart while remaining married. It involves court orders for property division, debt allocation, alimony, and, if applicable, child custody and support.
Can I get an annulment since my spouse and I never lived together after our marriage? No. Nebraska law only allows annulments under specific circumstances, such as prohibited marriages, impotence, bigamy, mental illness, or fraud.
What is the difference between Legal Separation and Divorce? Legal separation does not dissolve the marriage; the couple remains married. Divorce ends the marriage and all associated legal obligations. Divorce requires a one-year residency in Nebraska, while legal separation does not.
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? Under Nebraska law, children born during a marriage are presumed to be children of the marriage. Evidence is required to prove otherwise, such as court-established paternity or a signed acknowledgment by the biological father.
What if I don’t know where my spouse is? You must serve a copy of your Petition for Divorce to your spouse. If you cannot locate your spouse, you may obtain service by publication with court approval, demonstrating that you have made reasonable efforts to locate your spouse. 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.
Navigating the complexities of divorce and legal separation in Nebraska requires careful consideration and understanding of the legal processes involved. Consulting with an experienced family law attorney can help ensure that your rights and interests are protected, regardless of which path you choose. Contact Clinch Law Firm today to learn more about how we can assist you. Call (402) 908-5699 or send an email to jerry.clinchlawfirm@gmail.com to get started.
