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COMPLAINT FOR DISSOLUTION OF MARRIAGE
A divorce is filed by filing a “Complaint for Dissolution of Marriage” in the District Court of the county in which you or your spouse is 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. The Complaint sets forth: the names and addresses of the parties; the date and place of the marriage; the names, dates of birth and ages 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; 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; and statements indicating whether either party is in the military or infirm or incompetent. Most statements made in the Complaint are standard legal requirements under the applicable law setting forth what the Complaint should say. It costs $104.00 in court fees to file a Complaint for Dissolution of Marriage. A Vital Statistics Form must also be filed when the Complaint is filed.
SERVICE OF THE COMPLAINT
You or your spouse must be served with the Complaint by personal service, i.e. the sheriff coming to your place of employment or residence and providing you with copies of these papers. If you cannot be located, other methods of service may be allowed, i.e. mailing you the paperwork or publishing notice in a legal newspaper. Oftentimes, people send out a Voluntary Appearance for the spouse to sign and return to avoid the need for personal service. If you receive a voluntary appearance from your spouse’s lawyer, you should contact your lawyer before signing it and returning it to your spouse’s lawyer. I typically give my clients the option, if they are the party who initially filed the divorce, whether they would like me to send a voluntary appearance to their spouse or arrange to have the sheriff serve them. The sheriff charges money to serve these papers. This service typically costs around $25.00.
ANSWER AND COUNTER-COMPLAINT
Thirty days from the date the other spouse is served with a Complaint or thirty days from the date a Voluntary Appearance is filed with the Court, that person must file an Answer to the Complaint and if they choose, can also file a Counter-Complaint. A Counter-Complaint is necessary when the party answering the original Complaint wants to seek some relief not set forth in the original Complaint, i.e. alimony. A Counter-Complaint should also be prepared so that, if the spouse making the original filing choose to dismiss their case, the case can still proceed on the Counter-Complaint that is filed. If your spouse filed a Complaint and dismissed it and all you had filed was an Answer, you would have to file a Complaint for Dissolution of Marriage and pay a $104.00 filing fee. By filing an Answer and a Counter-Complaint, you avoid having to pay the $104.00 fee in the event your spouse chooses to dismiss his or her Complaint.
WAITING PERIOD
A divorce cannot be entered by the Court until the expiration of a sixty day waiting period. This 60 day period begins the day after the opposing spouse is served or his or her Voluntary Appearance is filed with the Court and expires 60 days later. This is the soonest 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 proceeding depends on a number of things, like on what discovery efforts need to be undertaken and what, if any, pretrial motions need to be filed. In Douglas County, Nebraska parties must also comply with the provisions of Local Rule 4-3 if children are involved. These are discussed in greater detail below. I will tell you that I have had only two cases in the 9 years I have been practicing family law prove-up on the 60th day following service.
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 line for the Court hearing these motions depends upon the schedule of the Judge that your case is assigned to. In Douglas County, Temporary hearings are held in the judge’s chambers with just the judge and the lawyers present. Your testimony is presented to the Court in these 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 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 the spouse’s deposition which is a question/answer process that occurs before a court reporter, taking other persons’ depositions, 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 that 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.
MEDIATION AND RULE 4-3
If you have minor children with your spouse, and you are seeking a divorce in Douglas County, Nebraska, the two of you will have to attend a class entitled “What about the Children?” and you will also have to try and mediate what is called a “Parenting Plan” that sets forth the custody and visitation arrangements for your children. This Parenting Plan can be done 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. Should you be 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) will assign a mediator or your attorneys can agree on someone n particular. 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 Rule 4-3. I will provide you with a packet of materials regarding Rule 4-3.
LEGAL CUSTODY OF CHILDREN
“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, i.e. school enrollment, elective surgeries, extended trips away from home, etc. 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. In practice “legal custody” is really a title more than anything because in actual day-to-day life there are few decisions in a child’s life which rise to this level.
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 really have sole physical custody. 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. I have prepared parenting plans with holiday schedules for parents of the Jewish faith, Jehovah’s Witnesses, etc., so I may have some examples of holiday schedules for you to review.
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 school year non-custodial parent during the summer months.
CUSTODY, VISITATION, ETC.
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 a lawyer or a judge. Don’t you want to make these important decisions? I know it is difficult because I have been through it myself. I can assure you, as a divorced parent 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 guaranteed outcomes when you go to trial.
CHILD SUPPORT
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. In these materials, you will find a copy of the Nebraska Child Support Guidelines, the table to calculate support, and the tables which state how much support is owed based upon these calculations. 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 not listed in this information or to 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 variance 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, i.e. housing, utilities, food, clothes, etc. 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.
You don’t 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 even before the temporary order was entered. Just be sure to keep track of how much.
If you will be receiving support payments, you will be getting those typically from the Nebraska Child Support Payment Center. If you receive any support payments from your spouse directly, you may be asked to sign a notarized receipt stating that you have received the support.
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 change in circumstance. Generally speaking, a new calculation should be drafted and if there is more than a 10% variance in the amount of support owed or due then you have met the “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. You can be held in contempt of court for not paying child support. Any professional license you might have can be taken away by the state if you don’t pay child support. Your driver’s license can be taken away if you don’t pay child support. You can be thrown in jail if you fail to pay child support. 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 visitation. Visitation and support are not interchangeable: i.e. non-paying parents still get to see their kids.
Child support does not count as income on your tax return if you are receiving it. If you are paying child support you are not entitled to deduct those payments from your income on your tax return.
ALIMONY/SPOUSAL SUPPORT
Whether you or your spouse is entitled to alimony, also known as spousal support, depends on a number of different factors and in a close case, no lawyer can guarantee the outcome. If a lawyer promises you or guarantees you any results in your case you should probably find a different lawyer. It is my job to tell you the good news and the bad. I would only be doing you a disservice if I failed to inform you of all the possible outcomes. 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 you have children, whether your 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 your spouse left a job to relocate with you thereby interrupting his or her career or education, the amount of education and/or training your spouse has, the job market and whether he or she can easily return to a profession or career, your spouse’s effort to further your career, assist with your business, volunteer his or her services in ways that improved your standing and recognition in the community, etc. 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.
Alimony can be deducted from income for purpose of calculating your income tax if you are the paying spouse. Alimony is income to a party receiving it and must be claimed as income on his or her tax return. Remember, the payment of alimony increases your deductions. The receipt of alimony increases your tax liability.
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 for a person. 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, the fairness of the agreement, etc. 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 if the Court determines that the agreement is fair the Judge 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. At the time of drafting this summary, most insurers were required to offer COBRA benefits to a divorced spouse for a period of 36 months.
You cannot remarry anyone, anywhere in the world, for a period of 6 months after the date your divorce decree is filed.
MAIDEN NAME
You or your spouse can ask that your/her maiden name be restored to you/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. As husband, you cannot force your wife to give up your name.
ENFORCEMENT
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 what is called 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, i.e. 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.
LEGAL SEPARATION
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 ex did, the judge will make things OK. Well, it doesn't work that way. Why not?
Many judges who routinely hear divorce cases become jaded and callous, adopting the attitude that if two grown people cannot resolve their differences without resorting to the courts, then they deserve whatever result the system decides to impose.
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 apply direct pressure to the lawyers and litigants to work it out among themselves. Sometimes a judge politely asks the parties involved to work it out themselves. It is not uncommon, though, for divorce judges to lecture, belittle, shame, threaten, and punish litigants in an effort to get them to work it out or to get one party to give in to the other. Some judges are purposely irrational, unpredictable, inconsistent, rude, or insensitive, perhaps in the hope that the parties will be sufficiently cowed to agree on a resolution rather than taking the risk of letting the judge decide for them.
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. The judge may have gone through a messy divorce herself, and you may remind her of her ex-husband. The judge could have a very negative reaction to you for some reason, and you may never know why. Although judges are supposed to be trained to put aside personal prejudices and biases, is this really possible? 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, someone about whom you know very little and over whom you can exert only as much influence as your lawyer can muster.
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.
This information is provided to you as a fairly simply overview of common issues and concerns. There are other things that can come up in divorce proceedings 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. I hope the information provided is helpful to you and helps you understand the process that we will be going through.
I have lots of clients come to me 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 mine. I am guessing that they do not have the type of specific knowledge about your case that I have learned during our attorney/client relationship. Without a complete understanding of your case a person cannot give you accurate advice.
I look forward to assisting you in getting through this difficult time.
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