Family Law Frequently Asked Questions
What are your Consultation Fees?
This office does charge a fee for consultations for family law cases.
½ hour consult = $75.00
1 hour consult = $150.00
How much will my divorce/custody case cost?
Unfortunately domestic relations cases are expensive. No two domestic relations cases require exactly the same amount of work, so your attorney cannot tell you exactly how much your case is going to cost from beginning to end. After your attorney has had a chance to evaluate your case during an office consultation, he will set your advance fee. For any case involving children the minimum advance fee is $2,500.00, and if custody is a contested issue the advance fee may be as high as $5,000.00. The standard advance fee for a case not involving children is $1,500.00, and may be as low as $750.00 depending the exact issues involved in your case.
What is a No Fault Divorce?
Nebraska has adopted the "no-fault" divorce law, making it generally unnecessary to prove cruelty, adultery, etc., in order to obtain a divorce. As long as one spouse believes the marriage is "irretrievably broken", the Nebraska courts will grant a dissolution of marriage. Generally speaking, evidence concerning what went wrong with the marriage or who desires the marriage to end is irrelevant.
What is a Legal Separation?
A legal separation action may be filed if the parties cannot meet the Nebraska residency requirements for filing a dissolution of marriage action (divorce). In some limited circumstances, if a husband and wife are separated and require court assistance in the determination of custody, financial support and division of property and debts, a formal legal separation action may be filed. It is not necessary to file a legal separation action if you and your spouse wish to be separated and can amenably decide how to handle the issues mentioned above.
What are Residency Requirements for filing a divorce?
Prior to filing a complaint for dissolution of marriage, it is generally necessary that you or your spouse have resided in Nebraska for at least one (1) year or if your marriage occurred in Nebraska, that you have lived in Nebraska since the time of your marriage.
Does the law require that I participate in any Counseling?
The courts in Nebraska do not require the parties to engage in marital counseling prior to entering a decree of dissolution and will not order the parties to receive counseling, unless both are in agreement.
We are not trained to professionally assist you with your emotional issues, but there are many services available to assist you with your emotional issues during and/or after your divorce. We will be happy to recommend a counseling service, if you so desire. Counseling can be a great benefit for both parents and children.
What will I need to tell my attorney and what happens with the information?
It is very important that you be completely open and honest with your attorney. Without full knowledge of the facts concerning your case, your attorney cannot adequately prepare for the case. All information you give to your attorney and his staff is confidential. Nebraska law provides for attorney-client privilege. This means an attorney and/or his staff cannot be forced to testify about any confidential communications between himself or herself and the client, without the client's permission.
How do I start the divorce process?
A dissolution of marriage (or legal separation) action is commenced by filing a complaint in the district court of the county in which you reside. This complaint will contain the general facts concerning your marriage, and will contain a very general statement concerning what you will be asking the court to do, i.e. award custody of children, award child support and/or alimony, divide property and debts, etc. The person filing the complaint is called the Plaintiff, with the other spouse being called the Defendant. In general, it does not make any legal difference which party files the action. However, it will be necessary for the Plaintiff seeking a divorce to allege and ultimately testify that he or she believes the marriage to be irretrievably broken and ask the court to dissolve the marriage.
How will my spouse be notified that I am filing for divorce?
It is necessary to serve the Defendant with a copy of the Complaint and whatever other pleadings may be filed with the Complaint. Nebraska law requires that the Defendant be personally served with the Complaint and Summons, and this is completed by the local sheriff's department or a private process server. The Summons contains an answer date by which time the Defendant is to file an Answer to the Complaint. The Defendant is given thirty (30) days from the date of service to file an Answer. If nothing is filed by the date set out in the Summons, the Plaintiff may obtain a default judgment.
To avoid having to be served by a Sheriff or private process server, the Defendant may sign a Voluntary Appearance acknowledging the receipt of a copy of the Complaint and any other pleadings.
What are Ex Parte Orders?
Ex Parte Orders are orders issued by the Court without allowing notice to the other party and an opportunity for the other party to present their side of the story. They are issued for emergencies only. The parties may obtain ex parte orders at the time the Complaint is filed, however,
these orders only remain in force for ten days by statute or until a hearing is held before the court. Generally, the
temporary hearing is held within two (2) weeks after service of the Defendant. If the parties can agree on the temporary issues, there is no need for a temporary hearing or court involvement.
How do I obtain a Domestic Abuse or Harassment Protection Order?
Separate protection order proceedings are available through the District Court if physical abuse or harassment is a factor in your case. To learn more, please go to the following link: http://www.supremecourt.ne.gov/self-help/protection.html
What is the "Parenting Act" and how does it affect my case?
To see the Nebraska Parenting Act Informational Brochure, follow the link below:
On June 3, 2010, the Nebraska Supreme Court approved the following amendments to Rule of the District Court of the 11th Judicial District.
Rule 11-4: Contested Custody Cases – Compliance with Parenting Act
- No contested case which involves custody of, or parenting time or visitation with, any minor child or children may be set for final hearing by any attorney or self-represented party unless the following documents have been filed with the Clerk of the District Court.
- Attorney Certificates of Providing Parenting Act Information signed by each attorney who has entered an appearance in the case or, for self-represented individuals, a verified and sworn statement from each parent that each has received and read the Nebraska Parenting Act Information brochure.
- A completed Financial Affidavit for Child Support signed by each party.
- Certificates of Completion of an approved Basic Level Parenting Education Course signed by each parent.
- An affidavit signed by a qualified mediator or specialized Alternative Dispute Resolution Facilitator approved by the Nebraska Office of Dispute Resolution setting forth facts to show both parties met for at least one session lasting 2 hours or more in a good faith attempt to settle the issues relating to custody parenting time, or visitation.
- Any of the foregoing requirements may be waived by the court upon a showing of good cause and compliance with applicable rules and statutes.
- All such documents shall be the same as, or substantially similar to, the forms relating to divorce and parenting found on the Nebraska Judicial Branch Web site.
- If a party fails or refuses to comply with any part of this rule, the opposing party may file a motion to compel, for sanctions, or for other relief which will be scheduled for hearing by the court.
Required Parenting Education Course
Certificate of Completion of Parenting Education Course
Both parents must attend a basic level parenting education course prior to the final hearing/trial being scheduled. You will need to provide your attorney with a copy of the certificate of completion that will be given to you by the provider of the parenting education course. Your attorney will then file a copy of the Certificate from the provider showing that you completed the Parenting Education Course with the Court.
What issues will the Court decide at a hearing on Temporary matters?
Because a final hearing cannot be held for at least sixty (60) days after service upon the Defendant, the court has authority to enter various temporary orders, which include the following:
(a) Temporary Child Custody:
Stat. §42-357(3) allows the court to issue
orders (an order rendered without giving the adverse party notice and an opportunity to present evidence and be heard) determining the temporary custody of any minor children of the marriage. It may or may not be in both your and your children's best interest to obtain an ex parte custody order. You should discuss the advantages of seeking such an order with your attorney.
(b) Temporary Child and Spousal Support: §42-357 allows the court to order either party to pay to the clerk a sum of money for the temporary support and maintenance of the other party and minor children and to enable such party to prosecute or defend the action. The court may make such order after service of process and claim for temporary allowances as made in the petition or by motion by the petitioner or by the respondent in a responsive pleading; but no such order shall be entered before three (3) days after notice of hearing has been served on the other party or notice waived.
(c) Non-Hypothecation Order: §42-357(1) allows the court to issue
parte orders restraining any person from transferring, encumbering, hypothecating, concealing, or in any way disposing of real or personal property except in the usual course of business or for the necessaries of life, and the party against whom such order is directed shall upon order of the court account for all unusual expenditures made after such order is served upon him or her.
Parte orders issued pursuant to subdivision (1) of this section shall remain in force for no more than ten (10) days or until a hearing is held thereon, whichever is earlier.
(d) Personal Restraining Order: §42-357(2) allows the court to issue
parte orders enjoining any party from molesting or disturbing the peace of the other party or any minor children affected by the action. No restraining order enjoining any party from molesting or disturbing the peace of any minor child shall issue unless, at the same time, the court determines that the party requesting such order shall have temporary custody of such minor child. In the event a restraining order enjoining any party from molesting or disturbing the peace of any minor children is issued, upon application and affidavit setting forth the reason therefore, the court shall schedule a hearing within seventy-two (72) hours to determine whether the order regarding the minor children shall remain in force.
(e) Exclusion Order: §42-357, allows a court to order either party excluded from the premises occupied by the other upon a showing that physical or emotional harm would otherwise result.
Such an order may only be obtained under motion and notice to the other party, and hearing. Any restraining order issued excluding either party from the premises occupied by the other shall specifically set forth the location of the premises and shall be served upon the adverse party by the sheriff in the manner prescribed for serving a summons, and a return thereof shall be filed in District Court. Remember, until such an order is issued by the Court, neither party has the right to exclude the other from jointly owned real property unless such property is the subject of a protection order or there is a no contact order in a criminal matter.
How do the Courts decide who should have Custody of the children?
In determining which of the parents the children shall live with, the Court considers the best interests of the children. The following factors may be considered (among many, many other factors):
(a) The relationship of the children to each parent prior to the commencement of the action or any subsequent hearing;
(b) The desires and wishes of the children of an age of comprehension regardless of their chronological age, when such desires and wishes are based on sound reasoning;
(c) The general health, welfare, and social behavior of the children.
The court does not give preference to either parent based on the gender of the parent, and no presumption exists that one parent is more fit to have custody than the other. In limited instances, the Court may place custody with both parents on a joint-custody basis, but only when both parents agree to such an arrangement. In a joint-custody arrangement, the parents shall have equal rights to make decisions in the best interests of the children in their custody.
A court will also consider: who has been the child's primary caretaker; which parent has the support of family and friends in caring for the child(ren); the work schedules of the parties and its affect on care and supervision; drug and alcohol use/abuse; mental and/or physical health; extramarital affairs; exposure of children to paramours; abusive behavior directed at, or in front of, the minor children; criminal history; employment and home stability; children's behavior and grades in school; and, parties who involve the minor child in the divorce, use the children to communicate with the other party and talk negatively about the other party in front of the children.
If I am not granted custody of my child(ren) what Visitation can I expect?
The Court will generally grant the non-custodial parent reasonable visitation, which frequently includes every other weekend (if in the same general geographic area), alternating holidays and some extended period in the summer. You should discuss any concerns about visitation with the attorney.
How do local Courts define "Reasonable Visitation."
Reasonable visitation rights of the non-custodial parent shall include, but not be limited to the following:
A. WEEKEND VISITATION: Weekend visitation shall be every other weekend from Friday to Sunday starting on the first Friday following the date of the entry of the decree.
B. HOLIDAY VISITATION: In even numbered years (years ending in 0,2,4,6 or 8), the non-custodial parent shall have the child(ren) on the following holidays that are number with an even number. In odd numbered years (years ending in 1,3,5,7 and 9) the non-custodial parent shall have the child(ren) on the following holidays that are number with an odd number:
1. EASTER: This holiday shall be from the day school is dismissed for Easter vacation to the day before school resumes after that holiday.
2. THANKSGIVING: This holiday shall be from the day school is dismissed for Thanksgiving to the day before school resumes after this holiday.
3. CHRISTMAS: This holiday shall be from the day school is dismissed before Christmas to December 26th of each year.
4. NEW YEAR: This holiday shall be from December 26th of each year to the day before school resumes after New Year.
C. SUMMER VISITATION: The non-custodial parent shall have summer visitation of six (6) weeks of continuous summer visitation the dates of which are to be selected in writing with a certified mailing delivered to the custodial parent on or before May 1st of each calendar year.
During this period of summer visitation, the custodial parent shall have weekend visitation as set forth in paragraph A above.
D. MOTHER'S DAY and FATHER'S DAY: The child(ren) shall spend Mother's Day with their mother and Father's Day with their father.
E. TELEPHONE VISITATION: The non-custodial parent may telephone each child for a period not to exceed fifteen (15) minutes per child between 7:00 p.m. and 8:00 p.m. on Wednesdays, and at such times as the parties
may agree to in writing, and the custodial parent shall no participate in or interfere with such calls.
F. WRITTEN CORRESPONDENCE: The non-custodial parent shall have the right of unlimited written correspondence with the child(ren), and the custodial parent shall not censor or interfere with such correspondence.
G. GENERAL PROVISIONS:
1. TIME: All weekend and holiday visitation shall begin and end at 6:00 p.m. on the day this order states as the start or end of a visitation period, as the case may be. Summer visitation and visitation on Mother's day and Father's Day shall start at 9:00 a.m and end at 6:00 p.m.
2. SCHOOL'S COMMENCEMENT AND END: School shall be deemed to start and end on the day the school attended by the child(ren) starts and ends, but if child(ren) do not attend school, the start and end of the public grade school in the community where the child(ren) live(s) shall control.
3. TRANSPORTATION: Parties who live in different communities shall meet at a public place halfway between their respective communities to exchange the child(ren) at the start and end of all visitations. Parties who live in the same community shall have the non-custodial parent pick up the child(ren) at the start of visitation, and the custodial parent shall pick up the minor child(ren) at the end of visitation. Driving may be done by any responsible adult who is related to the parties by blood or marriage.
4. MODIFICATION: The parties may modify this visitation schedule by mutual agreement in writing as they desire.
Oral agreements frequently result in misunderstanding, and are to be avoided.
5. IN THE EVENT OF CONFLICT, HOLIDAY VISITATION SUPERCEDES WEEKEND VISITATION.
6. In the event a child is invited or desires to participate in any activity which may interfere with a visit, the custodial parent will not encourage, permit, or consent thereto without prior approval of the non-custodial parent.
7. A custodial parent who is NOT cohabiting with an unrelated person of the opposite sex may refuse overnight visitation if the non-custodial parent IS cohabiting with an unrelated person of the opposite sex.
How will the Court calculate Child Support? How much will I pay/receive?
The Nebraska Supreme Court has adopted Child Support Guidelines which are to be followed in calculating the amount of child support. Generally, the income of both the mother and father is inserted into a formula, together with the number of children, and the mathematical calculations are made. You may visit the following links to estimate monthly child support payments. (Child Support worksheet http://www.supremecourt.ne.gov/forms/worksheet1.pdf; Child support tables
Will I have to pay Alimony or Spousal Support?
The Court may order payment of alimony/spousal support by one party to the other, taking into consideration the circumstances of the parties, the length of the marriage (usually must be a minimum of 5 years), a history of the contributions to the marriage by each party, including contributions to the care and education of the children, and interruption of personal careers or education opportunities, and the ability of the supported person to engage in gainful employment without interfering with the interest of any minor children.
How will the Court divide Property and Debts?
All assets and debts acquired during the course of the marriage are to be fairly divided. If the parties are in agreement with regard to these divisions, the Court will not generally inquire into the fairness of the division, however, in the event that the parties are unable to agree on the division, the Court will generally attempt to give each party an equal share of property and likewise, split the debts in an equitable fashion. Nebraska case law has held that a 50/50 split, up to a 66/34 split, can be fair and equitable.
Can my spouse claim any interest in property I received as a gift or inheritance, or property I had before the marriage?
The answer is "maybe." If you have received a gift or inheritance during the marriage, you may be able to exclude it from the marital estate. This means that your ex-spouse may not be entitled to any portion of the gifted or inherited property. This applies with premarital property as well. Schedule a consultation to determine what your rights are under Nebraska law.
How soon can I get a divorce?
Nebraska law requires a sixty (60) day waiting period from the time of filing the Complaint and service upon the Defendant before the final hearing, but the actual lapse of time may vary. This depends upon the complexity of the case, whether there are contested issues, and the status of the court docket. During the waiting period, attempts may be made to negotiate a settlement agreement between the parties to decide issues of child custody, child support, visitation, alimony, property division, debt allocation, responsibility for health insurance and expenses relating to minor children, day care expenses, attorney fees, and the allocation of income tax exemptions.
If the parties reach an agreement and a Settlement Agreement is signed and filed, then the final hearing conducted by the Court is simple and short. However, if the parties are unable to reach an agreement, a contested final hearing/trial is scheduled/held.
** One may not schedule a contested final hearing where custody or visitation is at issue until the following requirements have been completed: 1) Each parent has completed the Parenting Education Course; and, 2) Each parent has participated in at least two hours of mediation. (See Rule 11-4 and Parenting Act Information regarding
Parenting Education Course and
Mediation topics above)
At trial, both parties present evidence concerning the issues in the case and the District Judge makes the final decision on the contested issues. Once the Court enters a Decree of Dissolution, it is not final for a period of thirty (30) days from the date it is filed, and the parties are considered legally married during this time. You must wait six (6) months from the filing date of the Decree to remarry. Additionally, a spouse may be required by the Court to maintain existing health-related insurance for the other spouse during the six (6) months immediately following the entry of the Decree.