Division of PropertyIn Nebraska May Be Reasonable To The Other Party

Reasonable Division of Property In Nebraska The Other Party

The court may order payment of such alimony by one party to the other and division of property as may be reasonable, having regard for the circumstances of the parties, duration of the marriage, 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 educational opportunities, and the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of such party.

Reasonable security for payment may be required by the court. A proceeding to modify or revoke an order for alimony for good cause shall be commenced by filing a complaint to modify.

Service of process and other procedure shall comply with the requirements for a dissolution action. Amounts accrued prior to the date of filing of the complaint to modify may not be modified or revoked. A decree may not be modified to award alimony if alimony was not allowed in the original decree dissolving a marriage.

A decree may not be modified to award additional alimony if the entire amount of alimony allowed in the original decree had accrued before the date of filing of the complaint to modify. Except as otherwise agreed by the parties in writing or by order of the court, alimony orders shall terminate upon the death of either party or the remarriage of the recipient.

While the criteria for reaching a reasonable division of property and a reasonable award of alimony may overlap, the two serve different purposes and are to be considered separately.

The purpose of a property division is to distribute the marital assets equitably between the parties. The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic circumstances and the other criteria enumerated in this section make it appropriate.

Annotations:

1. Award
2. Modification or revocation
3. Considerations
4. Miscellaneous

1. Award The purpose of a property division is to distribute the marital assets equitably between the parties.

Although the division of property is not subject to a precise mathematical formula, the generalrule is to award a spouse one-third to one-half of the marital estate,the polestar being fairness and reasonableness as determined by thefacts of each case. Equitable property division under this sectionis a three-step process.

The first step is to classify the parties'property as marital or nonmarital.

The second step is to valuethe marital assets and marital liabilities of the parties.

The third step is to calculate and divide the net marital estatebetween the parties in accordance with the principles containedin this section. Gibilisco v. Gibilisco, 263 Neb. 27, 637N.W.2d 898 (2002).

Equitable property division under this section is a three-stepprocess. The first step is to classify the parties' property asmarital or nonmarital. The second step is to value the maritalassets and marital liabilities of the parties.

The third step isto calculate and divide the net marital estate between the partiesin accordance with the principles contained in this section.Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598 (2000). Alimony is proper when one spouse has earning potentialfar exceeding the other, who must receive furthereducation or training to engage in gainful employment.Druba v. Druba, 238 Neb. 279, 470 N.W.2d 176 (1991).

Alimony is not to be used simply to equalize the income ofthe parties or to punish one of the parties; it may be usedto assist the other party during a reasonable time tobridge that period of unavailability for employment orduring that period to get proper training for employment.Murrell v. Murrell, 232 Neb. 247, 440 N.W.2d 237 (1989). The ultimate test in determining correctnessin the amount of alimony awarded as well as theappropriateness of the division of propertyis reasonableness as determined by the facts ofeach case.

Busekist v. Busekist, 224 Neb. 510,398 N.W.2d 722 (1987). The test for the award of alimony is one ofreasonableness as determined by the facts ofeach case. Ray v. Ray, 222 Neb. 324, 383 N.W.2d752 (1986). How property owned at marriage and acquired by gift or inheritancewill be considered in determining division of property or awardof alimony must depend upon the facts of the particular case andthe equities involved.

Lord v. Lord, 213 Neb. 557, 330 N.W.2d 492(1983). Alimony awards in gross are not excluded from the workings ofthis section. A provision in a court order which states that certainalimony payments shall be made "until the total alimony award. . .is paid in full" is not an order providing "otherwise". Kingeryv. Kingery, 211 Neb. 795, 320 N.W.2d 441 (1982).

Allowances of alimony in the amount of ten thousanddollars annually plus child support of four hundred dollars permonth, which would require approximately seventy-five percentof former husband's present net income, were beyond thereasonable reach and capacity of former husband; and consideringproperty division made by the trial court and the circumstancesof the parties, such allowances were excessive and representedan abuse of discretion. Petersen v. Petersen, 208 Neb. 1, 301N.W.2d 592 (1981).

The award of alimony and the division of property aredetermined by the circumstances of the parties at the time ofthe dissolution of the marriage. Amen v. Amen, 207 Neb. 694,301 N.W.2d 74 (1981). Despite the language of section 42-379(3), R.R.S.1943,the provisions of section 42-365, R.R.S.1943, do not apply toawards of alimony in gross entered prior to July 6, 1972.Chamberlin v. Chamberlin, 206 Neb. 808, 295 N.W.2d 391 (1980).

The fixing of alimony or distribution of property rests in thesound discretion of the district court and in the absence of an abuseof discretion will not be disturbed on appeal.Lockwood v. Lockwood, 205 Neb. 818, 290 N.W.2d 636 (1980). On appeal, judgment modified to allow wife alimony, in additionto settlement award fixed by trial court. Brown v. Brown, 199 Neb.394, 259 N.W.2d 24 (1977).

Under this section a court may order payment of alimony by oneparty to the other having regard for the circumstances. Essex v.Essex, 195 Neb. 385, 238 N.W.2d 235 (1976). Upon the dissolution of a marriage, the court may order thepayment of such alimony by one party to the other as may be reasonableunder the circumstances of the parties. Walker v. Walker, 193 Neb.540, 227 N.W.2d 878 (1975).

A marital debt is one incurred during the marriage and before thedate of separation by either spouse or both spouses for the jointbenefit of the parties. McGuire v. McGuire, 11 Neb. App. 433,652 N.W.2d 293 (2002). In addition to the specific criteria listed in this section,a court setting alimony is to consider the income and earningcapacity of each party, as well as the general equities of eachsituation.

Grams v. Grams, 9 Neb. App. 994, 624 N.W.2d 42 (2001). Although disparity in income or potential income may partiallyjustify an award of alimony, it is error to award alimony underthis section if the sole reason for the award of alimony is adisparity in the parties' incomes or potential incomes. Kosiskev. Kosiske, 8 Neb. App. 694, 600 N.W.2d 840 (1999).

A workers' compensation award is marital property to the extentit recompenses for the couple's loss of income duringthe marriage. To the extent that it compensates an employeefor loss of premarriage or postdivorce earnings, it is thatperson's separate property. Gibson-Voss v. Voss, 4 Neb. App.236, 541 N.W.2d 74 (1995).

The purpose of alimony is to provide for the continued maintenanceor support of one party by the other when the relative economiccircumstances and the other criteria enumerated in this section make itappropriate. Kramer v. Kramer, 1 Neb. App. 641, 510 N.W.2d 351 (1993).

2. Modification or revocation A petition for the modification or termination of alimonyshall be denied if the change in financial condition is dueto fault or voluntary wastage or dissipation of one's talents andassets. Pope v. Pope, 251 Neb. 773, 559 N.W.2d 192 (1997).

A tax dependency exemption is nearly identical to anaward of child support or alimony and is thus capable ofbeing modified as an order of support.Hall v. Hall, 238 Neb. 686, 472 N.W.2d 217 (1991). An increase in income is a circumstance that may beconsidered in determining whether alimony should bemodified. Northwall v. Northwall, 238 Neb. 76, 469 N.W.2d 136 (1991).

In a proceeding to modify an alimony award, that matter is initiallyentrusted to the sound discretion of the trial judge, which matter, onappeal, will be reviewed de novo on the record and affirmed in theabsence of an abuse of the trial judge's discretion. Kelly v.Kelly, 220 Neb. 441, 370 N.W.2d 161 (1985). Alimony is not awarded as a reward to the receiving spouse or aspunishment of the spouse against whom it is charged.

It isan effort, insofar as is reasonably possible, to rectify thefrequent economic imbalance in the earning power andstandard of living of the divorced husband and wife. Itscontinuation is not dependent on the good conduct of either spouse.Else v. Else, 219 Neb. 878, 367 N.W.2d 701 (1985). Good cause means a material and substantialchange in circumstances and depends upon thecircumstances of each case. Creager v. Creager,219 Neb. 760, 366 N.W.2d 414 (1985).

Good cause for altering alimony provisions ina divorce decree is demonstrated by a materialand substantial change of circumstances. Analimony recipient's obtaining employmentafter the date of the decree is a circumstancethat permits the situation of the parties to bereexamined.

In dissolution of marriage casesone may in good faith make an occupationalchange even though that may reduce his abilityto meet his financial obligations. Cooper v.Cooper, 219 Neb. 64, 361 N.W.2d 202 (1985). A material change in circumstances, not within the reasonablecontemplation of the parties at the time of the alimony award, andnot accomplished by the mere passage of time, may constitute goodcause to justify modification of the award. Sholl v. Sholl, 216Neb. 289, 343 N.W.2d 742 (1984).

Where parties recognize that child support payments willterminate when the children reach majority, such terminationis not such a change in circumstances as to modify an alimonyaward. Sloss v. Sloss, 212 Neb. 610, 324 N.W.2d 663 (1982). An unqualified allowance of alimony in gross made beforeJuly 6, 1972, is not subject to modification.

Watley v. Watley,208 Neb. 155, 302 N.W.2d 690 (1981); Bryant v. Bryant, 191 Neb. 539,216 N.W.2d 162 (1974); Karrer v. Karrer, 190 Neb. 610, 211 N.W.2d 116(1973). Subject to section 42-365, R.R.S.1943, Reissue 1978, andsection 42-364, R.R.S.1943, Reissue 1974, amount of support canbe modified after the decree has been entered. State v. Easley,207 Neb. 443, 299 N.W.2d 439 (1980). Based on the facts of this case, the wife is entitled toone half of the value of the property acquired during thetwenty-seven-year marriage and the decree is modifiedaccordingly.

Chrisp v. Chrisp, 207 Neb. 348, 299 N.W.2d 162 (1980). Alimony provisions may be modified, even if based uponproperty settlement agreements, unless the parties or the courtprovide otherwise in writing. Euler v. Euler, 207 Neb. 4, 295N.W.2d 397 (1980). The phrase "good cause" depends uponcircumstances of individual case, and finding of itsexistence lies largely in discretion of officer orcourt to which decision is committed. Chamberlinv. Chamberlin, 206 Neb. 808, 295 N.W.2d 391 (1980). Where the only changed circumstances are an increase inthe payor spouse's gross income and a relief from debts throughbankruptcy, the payor's petition to reduce alimony payments wasproperly denied.

Anderson v. Anderson, 206 Neb. 655, 294 N.W.2d372 (1980). Where the decree expressly precludes modification, theaward is such a definite and final adjustment of mutual rightsand obligations as to be capable of a present vesting and toconstitute an absolute judgment. Van Pelt v. Van Pelt, 206 Neb.350, 292 N.W.2d 917 (1980). Property distributions which are punitive in nature may be subjectto modification. Falcone v. Falcone, 204 Neb. 800, 285 N.W.2d 694(1979).

An alimony award may be modified if it appears the court abusedits discretion in considering the circumstances of the parties andtheir relative earning capacities. Jenks v. Jenks, 200 Neb. 298,263 N.W.2d 469 (1978). The court did not err in ordering alimony should terminate upondeath of either party or remarriage of the wife. Van Bloom v. VanBloom, 196 Neb. 792, 246 N.W.2d 588 (1976).

Orders for alimony may be modified for good cause shown butnunc pro tunc decree entered without notice is a nullity. Howardv. Howard, 196 Neb. 351, 242 N.W.2d 884 (1976). Unless amounts have accrued prior to date ofservice on a petition to modify, orders for alimonymay be modified or revoked for goodcause shown, but when alimony is not allowedin the original decree dissolving a marriage,such decree may not be modified to award alimony.

Haug v. Haug, 195 Neb. 377, 238 N.W.2d 455 (1976). Because alimony may be modified only for good cause shown, apetition for modification will be denied if a change in financialcondition is due to fault or voluntary wastage or dissipation ofone's talents and assets. Lambert v. Lambert, 9 Neb. App. 661,617 N.W.2d 645 (2000). Action to modify alimony obligation must satisfy the proceduralrequirements of section 42-352. Osborn v. Osborn, 4 Neb. App.802, 550 N.W.2d 58 (1996).

3. Considerations In considering the specific criteria of this section concerningan award of alimony, a court's polestar must be fairness andreasonableness as determined by the facts of each case.Alimony should not be used to equalize the incomes of the partiesor to punish one of the parties. Alimony may be used to assistthe other party during a reasonable time to bridge that period ofunavailability for employment or during that period to getproper training for employment.

In awarding alimony, a courtshould consider, in addition to the specific criteria listed inthis section, the income and earning capacity of each party aswell as the general equities of each situation.

In enteringa decree awarding alimony, the court may take into account allof the property owned by the parties at the time of entering thedecree, whether accumulated by their joint efforts or acquiredby inheritance, and make such award as is proper under all thecircumstances disclosed by the record. Bauerle v. Bauerle, 263Neb. 881, 644 N.W.2d 128 (2002).

Serious health problems experienced by either party may supportan award of alimony which does not terminate according to thedefault provisions of this section. An alimony recipient's inabilityto work or improve his or her earning capacity is a circumstancewhich may support an award of alimony which does not terminateaccording to the default provisions of this section.

An obligorspouse's tenuous financial condition or unique economic circumstancesmay support an award of alimony which does not terminate according tothe default provisions of this section. The specific criteria inthis section, such as duration of the marriage, contributions to themarriage, and contributions to the care and education of the children,are also circumstances which may support an award of alimony whichdoes not terminate according to the default provisions of this section.

Bauerle v. Bauerle, 263 Neb. 881, 644 N.W.2d 128 (2002). The attainment by one spouse of a professional degree with aidfrom the other is one factor a district court may consider in thedivision of assets and award of alimony in a marital dissolutionproceeding. Schaefer v. Schaefer, 263 Neb. 785, 642 N.W.2d 792 (2002). The debts of the parties should be considered in makinga property division pursuant to a divorce.

While income tax liabilityincurred during the marriage should generally be treated as maritaldebt, an innocent spouse who filed separate tax returns and paidtaxes in a timely fashion should not be forced to share in thestatutory penalties for the late filings of a dilatory spouse. Carterv. Carter, 261 Neb. 881, 626 N.W.2d 576 (2001).

A party's separate property, while not subject to divisionin a property settlement, may properly be taken into accountwhen determining alimony.

Ainslie v. Ainslie, 249 Neb. 656,545 N.W.2d 90 (1996). In determining whether alimony should be awarded, the ultimatecriterion is one of reasonableness, and the trial court shouldconsider the enumerated factors in this section. Thiltgesv. Thiltges, 247 Neb. 371, 527 N.W.2d 853 (1995). When considering an award of alimony, the need for maintenance is notprecluded by a baseline of income or level of employment potential.

The ultimate test for determining correctness in the amount of alimonyis reasonableness. In awarding alimony, a court should consider theincome and earning capacity of each party as well as the generalequities of each situation.

Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d612 (1994). When determining whether to award alimony, a court should considerwhat effect, if any, the marriage had on the spouses' ability tosecure gainful employment in the future and the spouses' earningcapacity. When a spouse sacrifices employment seniority for the sake of amarriage, a court may consider that loss of seniority as favoringan award of alimony. Reichert v. Reichert, 246 Neb. 31, 516 N.W.2d600 (1994). The debts of the parties should be considered in making a propertydivision.

Property division is not subject to a rigid mathematicalformula, but, rather, turns upon the facts and circumstances of eachcase. The ultimate test for determining an appropriate division ofmarital property is one of reasonableness. In determining whetheralimony should be awarded, in what amount, and over what periodof reasonableness.

Regarding property division, when the marriageis of long duration and the parties are parents of all the children,the "one-third to one-half" rule is of particular significance. Prestonv. Preston, 241 Neb. 181, 486 N.W.2d 902 (1992). In determining whether alimony should be awarded, inwhat amount, and over what period of time, the ultimatecriterion is one of reasonableness.

Stuczynski v. Stuczynski, 238 Neb. 368, 471 N.W.2d 122(1991). The division of property and the awarding ofalimony in dissolution cases are mattersinitially entrusted to the discretion of thetrial judge. On appeal, such matters will bereviewed de novo on the record and affirmed inthe absence of an abuse of discretion.The earning capacity of a spouse operating abusiness is an element to be considered indetermining alimony. Ritz v. Ritz, 229 Neb.859, 429 N.W.2d 707 (1988).

A division of property is not subject to a precisemathematical formula. Rather, an appropriate divisionof marital property must turn on reasonableness and thecircumstances of each particular case in the light of thefactors set forth in this section. Keim v. Keim, 228 Neb.684, 424 N.W.2d 112 (1988);

Sullivan v. Sullivan, 223 Neb. 273,388 N.W.2d 516 (1986). A division of property and the awarding of alimony arenot subject to a precise mathematical formula. Rather,an appropriate division of marital property and amountof alimony must turn on reasonableness and thecircumstances of each particular case in the light of thefactors set forth in this section. Kimbrough v. Kimbrough,228 Neb. 358, 422 N.W.2d 556 (1988).

The ultimate test for the division of propertyas well as an award of alimony is reasonablenessas determined by the facts of each case. Mariclev. Maricle, 221 Neb. 552, 378 N.W.2d 855 (1985). The division of property in a dissolution caseis based on equitable principles, and its purposeis to divide the marital assets equitably.

Black v.Black, 221 Neb. 533, 378 N.W.2d 849 (1985). The actual earning capacity or ability of aspouse to engage in gainful employment isfrequently more important than the profitabilityof a spouse's business in resolving questions ofalimony. Gleason v. Gleason, 218 Neb. 629, 357N.W.2d 465 (1984). The ultimate criterion in determining alimony is one ofreasonableness. Pittman v. Pittman, 216 Neb. 746, 345 N.W.2d332 (1984); Baird v. Baird, 196 Neb. 124, 241 N.W.2d 543 (1976);

Mathias v. Mathias, 194 Neb. 598, 234 N.W.2d 212 (1975);Magruder v. Magruder, 190 Neb. 573, 209 N.W.2d 585 (1973). After looking at the overall circumstances of the parties,the court should attempt, if possible, to provide for the awardof alimony for such period of time and under such conditionsas would minimize any substantial and unnecessary disruptionin the lives of the parties occasioned by reason of the dissolutionof the marriage. Pyke v. Pyke, 212 Neb. 114, 321 N.W.2d 906 (1982).

In determining what amount of alimony is paid overwhat period of time, the ultimate criterion is reasonableness,and the Supreme Court is not inclined to disturb the trial court'saward unless it is patently unfair on the record.

Johnson v.Johnson, 209 Neb. 317, 307 N.W.2d 783 (1981). There is no mathematical formula by which awards ofalimony or division of property in an action for dissolution ofmarriage can be precisely determined. They are to be determinedby the facts of each case and the court will consider allpertinent facts in reaching an award that is just and equitable.Cole v. Cole, 208 Neb. 562, 304 N.W.2d 398 (1981).

In making an award of alimony and a division of property thecourt should not consider the issue of whether the unilateral acts ofone party to the marriage led to its irretrievable breakdown.Campbell v. Campbell, 202 Neb. 575, 276 N.W.2d 220 (1979). In determining an award of alimony, the trial court must considerthe circumstances of the parties, the duration of the marriage,and the ability of the supported party to engage in gainful employment.Gregg v. Gregg, 193 Neb. 811, 229 N.W.2d 546 (1975);

Yelkin v. Yelkin,193 Neb. 789, 229 N.W.2d 59 (1975). Among matters to be considered in making allowance of alimonyare the circumstances of the parties, the duration of the marriage,the contributions to the marriage by each party, and the abilityof the supported party to engage in gainful employment. Tuttlev. Tuttle, 193 Neb. 397, 227 N.W.2d 27 (1975).

Amount of alimony allowed, considered under rules of this sectionand circumstances in case, and approved. Casselman v. Casselman,191 Neb. 138, 214 N.W.2d 278 (1974). Division of property and award of alimony in a divorce actionare to be determined by all pertinent facts in each case.

Blivenv. Bliven, 190 Neb. 492, 209 N.W.2d 168 (1973). Having regard for circumstances in each case, court may orderpayment of such alimony by one party to the other as may be reasonable.Albrecht v. Albrecht, 190 Neb. 392, 208 N.W.2d 669 (1973); Corn v. Corn,190 Neb. 383, 208 N.W.2d 678 (1973). An anomaly or substantial fluctuation in the income of one partyshould be considered in determining whether alimony should be awardedand in what amount and also in the calculation of child support.

It was not error for a trial court to credit a party with the fullamount of assets liquidated during the pendency of the divorce, torefuse to consider as debt the unproven balances of certain creditcards, or to opine that certain obligations and awards were in thenature of support and maintenance and therefore nondischargeable inbankruptcy, even though that is a matter properly left to thebankruptcy court.

Halouska v. Halouska, 7 Neb. App. 730,585 N.W.2d 490 (1998). The fact that property is inherited and therefore excluded fromdivision does not prevent the income it generates from beingconsidered when determining alimony. Ainslie v. Ainslie, 4 Neb.App. 70, 538 N.W.2d 175 (1995).

4. Miscellaneous The ultimate test for determining the appropriateness of adivision of property is reasonableness as determined by the factsof each case. Carter v. Carter, 261 Neb. 881, 626 N.W.2d 576 (2001). This section's language with regard to service of process was notrepealed by implication as a result of an amendment to section 25-217,which states that an action is commenced on the date the petition isfiled with the court.

Only those amounts which have not accrued priorto the date of service of process are subject to modification. A decreeunder which all rights and obligations have accrued is not subject tomodification in any respect. Hamilton v. Hamilton, 242 Neb. 687,496 N.W.2d 507 (1993). To be properly within the purview of this sectionas property divisible and distributable in adissolution proceeding, goodwill must be a businessasset with value independent of the presence or reputation of a particularindividual; an asset which may be sold, transferred, conveyed, orpledged.

Taylor v. Taylor, 222 Neb. 721, 386 N.W.2d 851 (1986). Material change in circumstances in reference to modification ofchild support is analogous to modification of alimony for good cause.Morisch v. Morisch, 218 Neb. 412, 355 N.W.2d 784 (1984). This section gives guidance to the trial court as to how the propertyof the parties is to be divided and whether alimony is to beawarded. Ruhnke v. Ruhnke, 218 Neb. 355, 355 N.W.2d 339 (1984). Section 42-365, R.R.S.1943, Reissue 1978, is limited in its applicationto those situations in which, except for section 42-372, R.R.S.1943,Reissue 1978, the court could not otherwise modify or vacate thedecree. Howard v. Howard, 207 Neb. 468, 299 N.W.2d 442 (1980).

A decree that provides that alimony is not terminable, as permittedby this section, creates an unqualified allowance of alimony ingross which is a definite and final adjustment of rights and obligationsbetween the parties capable of present vesting and constitutingan absolute judgment. Torrey v. Torrey, 206 Neb. 485, 293 N.W.2d402 (1980).

It was reasonable for the trial court to exclude from the maritalproperty subject to division, property held jointly by the husbandand his sister for which there was no evidence of any contributionby the husband and property held jointly by the husband and theparties' son when the evidence showed that the property was placedin joint ownership in order to provide for son's education and futureneeds. Witcig v. Witcig, 206 Neb. 307, 292 N.W.2d 788 (1980).

Remarriage of a party will not terminate alimony payments ifthere is a written agreement between the parties or a court's decreewhich provides a specific amount of alimony to be paid for a specifictime with termination only on the occurrence of the specific eventset out in the agreement or decree and otherwise not subject tomodification or revision. Watters v. Foreman, 204 Neb. 670, 284N.W.2d 850 (1979).

Under the no fault divorce statute neither the granting, denial,or reduction of alimony nor the division of property are to be consideredas punitive. Ragains v. Ragains, 204 Neb. 50, 281 N.W.2d 516 (1979). The criteria to be used in determining the amount to be awardedin a property settlement is what appears to be fair and equitablebetween the parties under the circumstances present in the case.

Steele v. Steele, 201 Neb. 549, 270 N.W.2d 903 (1978). A married person's interest in the marital status is not a propertyright, the state has plenary powers with regard to it, and Nebraskadivorce laws are not unconstitutional. Buchholz v. Buchholz, 197Neb. 180, 248 N.W.2d 21 (1976). Rule for allowance of alimony and division of property under1974 statute quoted and prior decision distinguished. Browers v.Browers, 195 Neb. 743, 240 N.W.2d 585 (1976). Reasonable security for payment of alimony may be required butsuch remedy should be invoked in the original decree only undercompelling circumstances.

Wheeler v. Wheeler, 193 Neb. 615, 228N.W.2d 594 (1975). The Supreme Court is not necessarily bound by decision underthe former law in determining alimony under the no fault divorcelaw. Barnes v. Barnes, 192 Neb. 295, 220 N.W.2d 22 (1974). Under the no fault divorce statute, the father and mother ofminor children have an equal and joint right to their custody andcontrol, and while the father has the primary responsibility tosupport his children, the court has the responsibility of adjustingthe equities between the parties.

Kockrow v. Kockrow, 191 Neb.657, 217 N.W.2d 89 (1974). A forced sale of all the parties' property was held unreasonablewhere the trial court made no findings to explain its order forcingthe sale rather than distributing the property in kind. Kellner v.Kellner, 8 Neb. App. 316, 593 N.W.2d 1 (1999). Installments of alimony become vested as they accrue, and courtsare generally without authority to retroactively cancel or reducesuch amounts. Mathis v. Mathis, 4 Neb. App. 307, 542 N.W.2d 711 (1996).

Nebraska Division of property Stature 42-365

Division of property; criteria; modification;revocation; termination.

The court may order payment of such alimony by one party to the other and division of property as may be reasonable, having regard for the circumstances of the parties, duration of the marriage, 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 educational opportunities, and the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of such party.

Reasonable security for payment may be required by the court. A proceeding to modify or revoke an order for alimony for good cause shall be commenced by filing a complaint to modify.

Service of process and other procedure shall comply with the requirements for a dissolution action. Amounts accrued prior to the date of filing of the complaint to modify may not be modified or revoked. A decree may not be modified to award alimony if alimony was not allowed in the original decree dissolving a marriage.

A decree may not be modified to award additional alimony if the entire amount of alimony allowed in the original decree had accrued before the date of filing of the complaint to modify.

Except as otherwise agreed by the parties in writing or by order of the court, alimony orders shall terminate upon the death of either party or the remarriage of the recipient. While the criteria for reaching a reasonable division of property and a reasonable award of alimony may overlap, the two serve different purposes and are to be considered separately. The purpose of a property division is to distribute the marital assets equitably between the parties.

The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic circumstances and the other criteria enumerated in this section make it appropriate.

Annotations:

1. Award
2. Modification or revocation
3. Considerations
4. Miscellaneous

1. Award The purpose of a property division is to distribute the marital assets equitably between the parties.

Although the division of property is not subject to a precise mathematical formula, the generalrule is to award a spouse one-third to one-half of the marital estate,the polestar being fairness and reasonableness as determined by thefacts of each case.

Equitable property division under this sectionis a three-step process. The firs