When a couple gets a divorce, the courts are charged with sorting out everything from the marriage. In a divorce case, property division is one of the most important jobs of the court, specifically Nebraska property division.
A divorcing spouse should not go to court without the guidance of a licensed attorney who works in these cases. Property division laws can be complex, may be more complicated in a particular situation than that spouse thinks and judges are more likely to find favorably for a party who is represented by legal counsel.
Property Division Divorce Laws in Nebraska
The purpose of Nebraska property division laws is to make sure that marital property is allocated to each spouse equitably. Nebraska marital property is divided under the considerations of R.R.S. Neb. §42-365 but the trial court judge receives great discretion when converting Nebraska marital property into separate Nebraska divorce property.
Nebraska is an equitable distribution state. This means that with regard to Nebraska divorce assets, anything the spouses brought into a marriage usually will not be included in Nebraska divorce assets or Nebraska divorce property.
What is considered Marital and Non-Marital Property?
- Marital property is all items acquired by each spouse during the marriage as well as separate items that were brought into the marriage and later converted into marital property.
- Non-marital property is property that each spouse had before the marriage or acquired individually without including it into the marital property. Nebraska case law contains a general rule that property owned by either spouse at the time of marriage is that spouse's separate property.
Ultimately, it will be up to the court to decide what is classified as marital or non-marital property and which property will be included in the property division.
Dividing Assets and Debt
After the court decides which property is available for distribution, the next step is property valuation. The final step is the allocation of marital property.
Under R.R.S. Neb. §42-365, the court considers a number of factors in dividing assets and debt. Some of these are:
- The marriage's length
- The parties' earning capacity
- The parties' circumstances
- The parties' contributions to the marriage
Using statutory factors, judges decide how a marriage's assets should be divided. Here is a list of the most common property items and the most common allocation scheme used.
- Cash: Divided equitably among the
- Example 1: A joint savings account has $5,000. The court would most likely award part of the money to each spouse in an equitable fashion.
- Example 2: A joint savings account has $5,000. One spouse contributed $4,000 and the other contributed $1,000. The amount may be divided 50-50 or may be more balanced if the $1,000 contributor has fewer assets than the $4,000 contributor.
- Retirement Plans: Divided based on the
duration of the marriage at the time the benefits accrued, looking at the
present value of the plan and/or survivor benefits.
- Example 1: A spouse got benefits in a retirement plan after working for 25 years and was married for 15 of those years. The ex-spouse would be entitled to a portion of the retirement plan that was acquired during the marriage.
- Example 2: A spouse has an unvested retirement plan. No division takes place until the plan is payable to the spouse who has it. It may or may not be subject to property division.
- Vehicles: Divided based on the values at
the date determined by the court. May be
sold or given to a spouse outright.
- Example 1: A spouse owns a boat. The boat may be sold with the proceeds to be given to a poorer spouse or the boat may be given to a spouse.
- Example 2: A car has a shared title. The car may be sold with the proceeds divided among the spouses or given to a poorer spouse.
- Insurance: Determined based upon each
spouse's health, availability of alternate insurance and premium payments from
- Example 1: One spouse has covered the other under employer provided health insurance. The other spouse is in poor health and could not afford alternate health care coverage. The court may order the first spouse to continue covering that spouse for a set time and/or award money to the ailing spouse to get new coverage.
- Example 2: One spouse has a life insurance policy where the ex-spouse is to get survivor benefits. The court may order this to continue if the spouse has no other insurance or award the spouse a portion of the benefits.
Settling Disputes in a Divorce Case with Property and Asset Division
If a former spouse is being uncooperative, you may return to court to seek enforcement. The trial court will then decide how to proceed. Generally, property division orders are final and can not be modified.
The trial court's determinations will not be changed by a higher court unless the division was clearly unjust.
Help From a Nebraska Property Divorce Lawyer
It can not be stressed enough that retaining a Nebraska property divorce lawyer is key to getting the fairest and most equitable result in the property division phase of a divorce. The lawyer can provide professional guidance, keep you informed of likely outcomes and help you present the best arguments and presentation to the trial judge handling the divorce.