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chapter-42•Nebraska Revised Statutes, Chapter 42 — Households and Families
chapter-42Neb. Rev. Stat. ch. 42CodeJan 1, 1866
In law, marriage is considered a civil contract, to which the consent of the parties capable of contracting is essential.
Source: R.S.1866, c. 34, § 1, p. 254; R.S.1913, § 1540; C.S.1922, § 1489; C.S.1929, § 42-101; R.S.1943, § 42-101.
Cross References
Annotations
1. Nature of contract
2. Agreement of parties
3. Validity of marriage
4. Common-law marriage
5. Miscellaneous
1. Nature of contract
Although this section denotes marriage as a "civil contract," persons entering into matrimony establish a social status, not a contractual relation. Edmunds v. Edwards, 205 Neb. 255, 287 N.W.2d 420 (1980).
Where consent is obtained by fraud, marriage may be annulled. Zutavern v. Zutavern, 155 Neb. 395, 52 N.W.2d 254 (1952).
Marriage is a civil contract which, if procured by fraud, may be set aside. Hudson v. Hudson, 151 Neb. 210, 36 N.W.2d 851 (1949).
State is always a party. Willits v. Willits, 76 Neb. 228, 107 N.W. 379 (1906).
Consent of state is necessary. Eaton v. Eaton, 66 Neb. 676, 92 N.W. 995 (1902).
Marriage is a social status, and only in a limited sense is the relation contractual. University of Michigan v. McGuckin, 64 Neb. 300, 89 N.W. 778 (1902).
2. Agreement of parties
Consent of parties mentally competent is required. Kutch v. Kutch, 88 Neb. 114, 129 N.W. 169 (1910).
Mental weakness alone does not avoid contract. Aldrich v. Steen, 71 Neb. 33, 98 N.W. 445 (1904).
3. Validity of marriage
It is not a ground for annulment that license was wrongfully obtained where parties are competent and marriage is fully consummated. Baker v. Baker, 112 Neb. 738, 200 N.W. 1003 (1924).
Marriages valid in Indian tribe under Indian customs, are valid here. Ortley v. Ross, 78 Neb. 339, 110 N.W. 982 (1907).
Marriage is valid where minds of competent parties meet. University of Michigan v. McGuckin, 62 Neb. 489, 87 N.W. 180 (1901).
Where marriage is celebrated in good faith, it is binding though parties had agreed it should not be. Hills v. State, 61 Neb. 589, 85 N.W. 836 (1901).
4. Common-law marriage
Since 1923, common-law marriages cannot be made in this state. Collins v. Hoag & Rollins, 122 Neb. 805, 241 N.W. 766 (1932), reversing 121 Neb. 716, 238 N.W. 351 (1931).
5. Miscellaneous
Agreements to separate are against public policy. Brun v. Brun, 64 Neb. 782, 90 N.W. 860 (1902).
At the time of the marriage the male must be of the age of seventeen years or upward, and the female of the age of seventeen years or upward. No person who is afflicted with a venereal disease shall marry in this state.
Source: R.S.1866, c. 34, § 2, p. 254; R.S.1913, § 1541; C.S.1922, § 1490; Laws 1923, c. 40, § 1, p. 154; C.S.1929, § 42-102; R.S.1943, § 42-102; Laws 1963, c. 242, § 1, p. 735; Laws 1965, c. 230, § 1, p. 673; Laws 1971, LB 728, § 1; Laws 1978, LB 165, § 1.
Cross References
Annotations
Marriage of one afflicted with venereal disease is not void but voidable. Christensen v. Christensen, 144 Neb. 763, 14 N.W.2d 613 (1944).
Where party afflicted with venereal disease enters into marriage with full knowledge thereof, such party is barred from seeking annulment. Christensen v. Christensen, 144 Neb. 763, 14 N.W.2d 613 (1944).
If parties are of the age of consent, the marriage is valid, even though license was wrongfully obtained. Baker v. Baker, 112 Neb. 738, 200 N.W. 1003 (1924).
Prior to 1923, marriage was valid even if there was no license. Melcher v. Melcher, 102 Neb. 790, 169 N.W. 720 (1918).
Father of minor who brings suit to annul marriage of son under age is not liable for child support. Caulk v. Caulk, 91 Neb. 638, 136 N.W. 845 (1912).
Marriage of infant under age is voidable, but is valid until annulled by court. Willits v. Willits, 76 Neb. 228, 107 N.W. 379 (1906).
Marriages are void (1) when either party has a husband or wife living at the time of the marriage, (2) when either party, at the time of marriage, is mentally incompetent to enter into the marriage relation, and (3) when the parties are related to each other as parent and child, grandparent and grandchild, brother and sister of half as well as whole blood, first cousins when of whole blood, uncle and niece, and aunt and nephew. This subdivision extends to children and relatives born out of wedlock as well as those born in wedlock.
Source: R.S.1866, c. 34, § 3, p. 254; Laws 1911, c. 76, § 1, p. 322; Laws 1913, c. 72, § 1, p. 216; R.S.1913, § 1542; C.S.1922, § 1491; C.S.1929, § 42-103; R.S.1943, § 42-103; Laws 1963, c. 243, § 1, p. 736; Laws 1976, LB 990, § 1; Laws 1986, LB 1177, § 14; Laws 1989, LB 22, § 1.
Cross References
Annotations
1. Void marriage, party has spouse
2. Void marriage, mental illness
3. Void marriage, related parties
4. Miscellaneous
1. Void marriage, party has spouse
A marriage contract between a man and a woman, one of whom is married, is void. Boersen v. Huffman, 189 Neb. 469, 203 N.W.2d 489 (1973); Scott v. Scott, 153 Neb. 906, 46 N.W.2d 627 (1951), 23 A.L.R.2d 1431 (1951).
Marriage within six months of divorce is void, but cohabitation after impediment is removed, though removal is unknown, validates. Aldrich v. Steen, 71 Neb. 33, 98 N.W. 445 (1904); Eaton v. Eaton, 66 Neb. 676, 92 N.W. 995 (1902).
Applicant for widow's social security benefits denied entitlement where evidence revealed purported marriage to deceased consummated during interlocutory period of deceased's former divorce. McGuire v. Califano, 440 F.Supp. 1031 (D. Neb. 1977).
2. Void marriage, mental illness
In action to annul marriage, mental illness of party was not of such nature as to render marriage void. Homan v. Homan, 181 Neb. 259, 147 N.W.2d 630 (1967).
Absolute inability to contract, insanity or idiocy, but not mental weakness alone, will make marriage void. Aldrich v. Steen, 71 Neb. 33, 98 N.W. 445 (1904).
3. Void marriage, related parties
Marriage in Iowa of first cousins, residents of Nebraska, is valid here. Staley v. State, 89 Neb. 701, 131 N.W. 1028 (1911).
4. Miscellaneous
A marriage that is void is not valid for any legal purpose. State v. Johnson, 310 Neb. 527, 967 N.W.2d 242 (2021).
It is generally held that a marriage is not void unless the statutes expressly so declare and that courts should not so construe it unless the legislative intent to such effect is clear and unequivocal. State v. Johnson, 310 Neb. 527, 967 N.W.2d 242 (2021).
Marriages are void under this section only if there existed at the time of marriage such a want of understanding as to render the party incapable of assenting thereto. Edmunds v. Edwards, 205 Neb. 255, 287 N.W.2d 420 (1980).
This section declares what marriages are void. Baker v. Baker, 112 Neb. 738, 200 N.W. 1003 (1924).
Prior to the solemnization of any marriage in this state, a license for that purpose shall be obtained from a county clerk in the State of Nebraska. Applications for a marriage license made with the county court prior to January 1, 1987, shall be processed and licenses shall be issued by the county court according to the law and procedures in effect on the date each application was made. No marriage hereafter contracted shall be recognized as valid unless such license has been previously obtained and used within one year from the date of issuance and unless such marriage is solemnized by a person authorized by law to solemnize marriages. Each party shall present satisfactory documentary proof of and shall swear or affirm to the application giving: (1) Full name of each applicant and residence; and (2) the place, date, and year of birth of each.
Source: R.S.1866, c. 34, § 4, p. 254; R.S.1913, § 1543; C.S.1922, § 1492; Laws 1923, c. 40, § 2, p. 154; Laws 1925, c. 84, § 1, p. 261; C.S.1929, § 42-104; Laws 1943, c. 103, § 9, p. 348; R.S.1943, § 42-104; Laws 1971, LB 42, § 1; Laws 1971, LB 728, § 2; Laws 1975, LB 295, § 1; Laws 1986, LB 525, § 4; Laws 1988, LB 1126, § 2.
Annotations
1. Common-law marriage
2. Miscellaneous
1. Common-law marriage
By legislative enactment, common-law marriages in Nebraska are not recognized. Ropken v. Ropken, 169 Neb. 352, 99 N.W.2d 480 (1959); Scott v. Scott, 153 Neb. 906, 46 N.W.2d 627 (1951), 23 A.L.R.2d 1431 (1951).
Unless entered into prior to 1923, a common-law marriage entered into in this state is not valid. Bourelle v. Soo-Crete, Inc., 165 Neb. 731, 87 N.W.2d 371 (1958); Ragan v. Ragan, 158 Neb. 51, 62 N.W.2d 121 (1954).
Since 1923, common-law marriages in this state are prohibited. Bowman v. Bowman, 163 Neb. 336, 79 N.W.2d 554 (1956).
Common-law marriage in another state was not established. Abramson v. Abramson, 161 Neb. 782, 74 N.W.2d 919 (1956).
Common-law marriage was recognized as valid prior to act of 1923. Harrison v. Cargill Commission Co., 126 Neb. 185, 252 N.W. 899 (1934).
Amendment of 1923 whereby common-law marriages were banned was upheld as constitutional. Collins v. Hoag & Rollins, 122 Neb. 805, 241 N.W. 766 (1932), reversing 121 Neb. 716, 238 N.W. 351 (1931).
2. Miscellaneous
The plain language of this section includes only two requirements for a marriage to be valid: the issuance of a marriage license and the subsequent solemnization of the marriage by a person authorized to do so. Vlach v. Vlach, 286 Neb. 141, 835 N.W.2d 72 (2013).
The failure to obtain a license to marry voids a marriage performed without it. Randall v. Randall, 216 Neb. 541, 345 N.W.2d 319 (1984).
Where marriage ceremony is invalid, subsequent cohabitation after removal of impediment will not validate marriage. Binger v. Binger, 158 Neb. 444, 63 N.W.2d 784 (1954).
Under 1923 amendment to this section, a valid marriage can be contracted in this state only when the parties have previously obtained a license to marry, and when the marriage has been solemnized by a person authorized by law to solemnize marriages. Walden v. Walden, 122 Neb. 804, 241 N.W. 766 (1932), reversing 121 Neb. 715, 238 N.W. 356 (1931).
Provisions of this section are limited to marriages solemnized in Nebraska. Allen v. Allen, 121 Neb. 635, 237 N.W. 662 (1931).
Where parties are of the age of consent and otherwise competent, the fact that license is wrongfully obtained is no ground for annulment. Baker v. Baker, 112 Neb. 738, 200 N.W. 1003 (1924).
Prior to 1923, the fact that there was no license, or that it was wrongfully obtained, did not invalidate marriage. Melcher v. Melcher, 102 Neb. 790, 169 N.W. 720 (1918).
When either party is a minor, no license shall be granted without the written consent under oath of: (1) Either one of the parents of such minor, if the parents are living together; (2) the parent having the legal custody of such minor, if the parents are living separate and apart from each other; (3) the surviving parent, if one of the parents of such minor is deceased; or (4) the guardian, conservator, or person under whose care and government such minor may be, if both parents of such minor are deceased or if such guardian, conservator, or person has the legal and actual custody of such minor. The county clerk shall be justified in issuing the license, without further proof, upon receiving an affidavit setting forth the facts with reference to the conditions above specified and giving consent to the marriage, signed by the person authorized to give written consent under such circumstances.
Source: R.S.1866, c. 34, § 5, p. 254; R.S.1913, §§ 1543, 1544; C.S.1922, §§ 1492, 1493; Laws 1923, c. 40, § 2, p. 154; Laws 1925, c. 84, § 1, p. 261; C.S.1929, §§ 42-104, 42-105; R.S.1943, § 42-105; Laws 1945, c. 99, § 1, p. 327; Laws 1975, LB 481, § 28; Laws 1986, LB 525, § 5.
Annotations
Above section relates to the obtaining of license, and does not go to validity of marriage. Baker v. Baker, 112 Neb. 738, 200 N.W. 1003 (1924).
When an application is made for a license to the county clerk, he or she shall, upon the granting of such license, state in the license the information contained in the application as provided in section 42-104. The license shall, prior to the issuing thereof, be entered of record in the office of the county clerk in a suitable book to be provided for that purpose.
The forms for the application, license, and certificate of marriage shall be provided by the Department of Health and Human Services at actual cost as determined by the department.
Source: R.S.1866, c. 34, § 6, p. 254; Laws 1869, § 1, p. 167; R.S.1913, § 1545; C.S.1922, § 1494; C.S.1929, § 42-106; R.S.1943, § 42-106; Laws 1971, LB 728, § 3; Laws 1986, LB 525, § 6; Laws 1989, LB 344, § 3; Laws 1996, LB 1044, § 96; Laws 2007, LB296, § 55.
Cross References
If the required proof is not given, if it shall appear that either of the parties is legally incompetent to enter into such contract or that there is any impediment in the way, or if either party is a minor and the consent mentioned in section 42-105 shall not be given, the county clerk shall refuse to grant a license.
Source: R.S.1866, c. 34, § 7, p. 255; R.S.1913, § 1546; C.S.1922, § 1495; C.S.1929, § 42-107; R.S.1943, § 42-107; Laws 1971, LB 728, § 4; Laws 1986, LB 525, § 7.
Every judge, retired judge, clerk magistrate, or retired clerk magistrate, and every preacher of the gospel authorized by the usages of the church to which he or she belongs to solemnize marriages, may perform the marriage ceremony in this state. Every such person performing the marriage ceremony shall make a return of his or her proceedings in the premises, showing the names and residences of at least two witnesses who were present at such marriage. The return shall be made to the county clerk who issued the license within fifteen days after such marriage has been performed. The county clerk shall record the return or cause it to be recorded in the same book where the marriage license is recorded.
Source: R.S.1866, c. 34, § 8, p. 255; Laws 1869, § 2, p. 168; R.S.1913, § 1547; C.S.1922, § 1496; Laws 1927, c. 77, § 1, p. 242; C.S.1929, § 42-108; R.S.1943, § 42-108; Laws 1951, c. 124, § 1, p. 542; Laws 1971, LB 42, § 2; Laws 1972, LB 1032, § 249; Laws 1973, LB 226, § 28; Laws 1981, LB 55, § 1; Laws 1986, LB 525, § 8; Laws 2006, LB 1115, § 28.
Annotations
While certain named classes of persons and officials are authorized to perform the marriage ceremony, they are not the only persons that have that authority. Collins v. Hoag & Rollins, 122 Neb. 805, 241 N.W. 766 (1932).
Performance of ceremony is not obligatory on clergyman or judges. Douglas County v. Vinsonhaler, 82 Neb. 810, 118 N.W. 1058 (1908).
In the solemnization of marriage no particular form shall be required, except that the parties shall solemnly declare in the presence of the magistrate or minister and the attending witnesses, that they take each other as husband and wife; and in any case there shall be at least two witnesses, besides the minister or magistrate present at the ceremony.
Source: R.S.1866, c. 34, § 9, p. 255; R.S.1913, § 1548; C.S.1922, § 1497; C.S.1929, § 42-109; R.S.1943, § 42-109.
Annotations
Presence of clergyman or magistrate is not indispensable. Gibson v. Gibson, 24 Neb. 394, 39 N.W. 450 (1888).
Whenever a marriage shall have been solemnized pursuant to the provisions of sections 42-101 to 42-117, the minister or magistrate who solemnized the same shall give to each of the parties, on request, a certificate under his hand, specifying the names, ages and places of residence of the parties married, the names and residences of at least two witnesses who were present at such marriage, and the time and place thereof.
Source: R.S.1866, c. 34, § 10, p. 255; R.S.1913, § 1549; C.S.1922, § 1498; C.S.1929, § 42-110; R.S.1943, § 42-110.
Repealed. Laws 1951, c. 124, § 2.
The county clerk of each county in the state shall record all such returns of such marriages in a book to be kept for that purpose within one month after receiving the returns.
Source: R.S.1866, c. 34, § 12, p. 255; R.S.1913, § 1551; C.S.1922, § 1500; C.S.1929, § 42-112; R.S.1943, § 42-112; Laws 1986, LB 525, § 9.
Cross References
If any justice, minister, or other person whose duty it is to make and transmit to the county clerk such certificate shall neglect to make and deliver the same; if the county clerk shall neglect to record such certificate; if any person shall undertake to join others in marriage, knowing that he or she is not legally authorized so to do or knowing of any legal impediment to the proposed marriage; if any person authorized to solemnize any marriage shall willfully and knowingly make a false certificate of any marriage to the county clerk; or if the county clerk shall willfully and knowingly make a false record of any certificate of marriage, he or she shall be guilty of a Class I misdemeanor.
Source: R.S.1866, c. 34, § 13, p. 255; R.S.1913, § 1552; C.S.1922, § 1501; C.S.1929, § 42-113; R.S.1943, § 42-113; Laws 1977, LB 40, § 225; Laws 1986, LB 525, § 10.
No marriage solemnized before any person professing to be a minister of the gospel, shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of jurisdiction or authority in such supposed minister; Provided, the marriage be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.
Source: R.S.1866, c. 34, § 14, p. 256; R.S.1913, § 1533; C.S.1922, § 1502; C.S.1929, § 42-114; R.S.1943, § 42-114; Laws 1972, LB 1032, § 250.
Annotations
An ordained minister was authorized to perform a valid marriage ceremony where there was no evidence casting doubt on the minister's authority to solemnize the marriage and where the purported wife believed she had been lawfully joined in marriage. State v. Johnson, 310 Neb. 527, 967 N.W.2d 242 (2021).
This section authorizes anyone to perform a valid marriage ceremony if he holds himself out to be a minister or justice of the peace, provided the marriage is consummated with a full belief on the part of either of the parties that they have been lawfully joined in marriage. Collins v. Hoag & Rollins, 122 Neb. 805, 241 N.W. 766 (1932).
If person before whom marriage solemnized had no authority to perform same but professed to have and was believed to have by both parties so married, or either of them, marriage is valid. Haggin v. Haggin, 35 Neb. 375, 53 N.W. 209 (1892).
It shall be lawful for every religious society to join together in marriage such persons as are of the society, according to the rites and customs of the society to which they belong. The clerk or keeper of the minutes, proceedings, or other book of the religious society in which such marriage shall be had, or if there be no such clerk or keeper of the minutes, then the moderator or person presiding in such society, shall make out and transmit to the county clerk of the county a certificate of the marriage, and the same shall be recorded in the same manner as is provided in sections 42-108 to 42-112.
Source: R.S.1866, c. 34, § 15, p. 256; R.S.1913, § 1554; C.S.1922, § 1503; C.S.1929, § 42-115; R.S.1943, § 42-115; Laws 1986, LB 525, § 11.
Annotations
Marriage solemnized under this section is valid. Collins v. Hoag & Rollins, 122 Neb. 805, 241 N.W. 766 (1932).
The original certificate and record of marriage made by the minister, officer, or person, as prescribed in sections 42-101 to 42-117, and the record thereof, made as prescribed, a copy of such record, duly certified by such officer, or an abstract of marriage as defined in section 71-601.01, shall be received in all courts and places as presumptive evidence of the fact of such marriage.
Source: R.S.1866, c. 34, § 16, p. 256; R.S.1913, § 1555; C.S.1922, § 1504; C.S.1929, § 42-116; R.S.1943, § 42-116; Laws 2006, LB 1115, § 29.
Annotations
Proof of marriage may be made by either party. Bailey v. State, 36 Neb. 808, 55 N.W. 241 (1893).
Proof of official character of person performing ceremony is unnecessary; marriage may be proved by eyewitness. Lord v. State, 17 Neb. 526, 23 N.W. 507 (1885).
All marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, shall be valid in all courts and places in this state.
Source: R.S.1866, c. 34, § 17, p. 257; R.S.1913, § 1556; C.S.1922, § 1505; C.S.1929, § 42-117; R.S.1943, § 42-117.
Annotations
If Texas law applied to a situation where a Nebraska marriage license was obtained but the solemnization occurred in Texas, and if Texas would recognize the marriage as valid, then Nebraska would also recognize the marriage as valid. State v. Johnson, 310 Neb. 527, 967 N.W.2d 242 (2021).
Residents of this state cannot enter into common-law marriage by temporary sojourns in another state. Binger v. Binger, 158 Neb. 444, 63 N.W.2d 784 (1954).
Where law of South Dakota was not pleaded, remarriage in South Dakota within three months after entry of divorce decree in Nebraska was invalid. Scott v. Scott, 153 Neb. 906, 46 N.W.2d 627 (1951), 23 A.L.R.2d 1431 (1951).
Marriage in Colorado was valid even though no license was obtained. Allen v. Allen, 121 Neb. 635, 237 N.W. 662 (1931).
Even though parties have left this state to evade our laws, a marriage is valid unless expressly declared void. Staley v. State, 89 Neb. 701, 131 N.W. 1028 (1911); State v. Hand, 87 Neb. 189, 126 N.W. 1002 (1910).
If marriage is valid where celebrated, it is valid in this state. Hills v. State, 61 Neb. 589, 85 N.W. 836 (1901); Bailey v. State, 36 Neb. 808, 55 N.W. 241 (1893); Gibson v. Gibson, 24 Neb. 394, 39 N.W. 450 (1888).
If a marriage is valid where it was contracted, it will be held to be valid everywhere, and if invalid by lex loci contractus, it will be invalid wherever question may arise. Nelson v. Richardson-Nelson, 30 Neb. App. 15, 964 N.W.2d 463 (2021).
In case of a marriage solemnized when either of the parties is under the age of legal consent, if they shall separate during such nonage, and not cohabit together afterwards, or in case the consent of one of the parties was obtained by force or fraud, and there shall have been no subsequently voluntary cohabitation of the parties, the marriage shall be deemed voidable.
Source: R.S.1866, c. 16, § 2, p. 128; R.S.1913, § 1557; C.S.1922, § 1506; C.S.1929, § 42-118; R.S.1943, § 42-118.
Annotations
A marriage is voidable when it has legal imperfections in its establishment which can be inquired into only during the lives of both of the parties in a proceeding by annulment to obtain a judgment of a competent court declaring its invalidity. State v. Johnson, 310 Neb. 527, 967 N.W.2d 242 (2021).
Fraud sufficient to vitiate a marriage must go to the essence of the marriage relation. Zutavern v. Zutavern, 155 Neb. 395, 52 N.W.2d 254 (1952).
Marriage may be set aside for fraud. Hudson v. Hudson, 151 Neb. 210, 36 N.W.2d 851 (1949).
In annulment suit, plaintiff must not only show consent obtained by force or fraud but must prove that there was no subsequent voluntary cohabitation of the parties. Kanaly v. Bronson, 97 Neb. 322, 149 N.W. 781 (1914).
Father of minor who brings suit to annul marriage of son under age is not liable for child support. Caulk v. Caulk, 91 Neb. 638, 136 N.W. 845 (1912).
Disparity in age of the contracting parties is not one of the statutory causes for annulment. Kutch v. Kutch, 85 Neb. 702, 124 N.W. 108 (1909).
Where marriage is annulled for nonage of male, it is proper to make order for support of wife and child. Willits v. Willits, 76 Neb. 228, 107 N.W. 379 (1906).
Repealed. Laws 2004, LB 1207, § 49.
Repealed. Laws 2004, LB 1207, § 49.
Repealed. Laws 1998, LB 1073, § 179.
Repealed. Laws 1988, LB 804, § 1.
Repealed. Laws 1983, LB 497, § 2.
Repealed. Laws 1983, LB 497, § 2.
Repealed. Laws 1971, LB 728, § 5.
Repealed. Laws 1983, LB 497, § 2.
Repealed. Laws 1983, LB 497, § 2.
Repealed. Laws 1983, LB 497, § 2.
Repealed. Laws 1983, LB 497, § 2.
The property, real and personal, which any woman in the state may own at the time of her marriage, rents, issues, profits or proceeds thereof and real, personal or mixed property which shall come to her by descent, devise or the gift of any person except her husband or which she shall acquire by purchase or otherwise shall remain her sole and separate property, notwithstanding her marriage, and shall not be subject to disposal by her husband or liable for his debts; Provided, all property of a married woman, except ninety percent of her wages, not exempt by statute from sale on execution or attachment, regardless of when or how said property has been or may hereafter be acquired, shall be liable for the payment of all debts contracted for necessaries furnished the family of said married woman after execution against the husband for such indebtedness has been returned unsatisfied for want of goods and chattels, lands and tenements whereon to levy and make the same.
Source: Laws 1871, § 1, p. 68; Laws 1875, § 1, p. 88; Laws 1887, c. 49, § 1, p. 478; R.S.1913, § 1560; C.S.1922, § 1509; C.S.1929, § 42-201; R.S.1943, § 42-201; Laws 1945, c. 100, § 1, p. 328.
Cross References
Annotations
1. Separate property of wife
2. Liability for debts of husband
3. Liability for necessaries
4. Miscellaneous
1. Separate property of wife
Property conveyed by husband to wife became her separate property and was a valid gift. Graff v. Graff, 179 Neb. 345, 138 N.W.2d 644 (1965).
Legislation providing separate property rights of married woman had bearing on amendment of Homestead Act. Edgerton v. Hamilton County, 150 Neb. 821, 36 N.W.2d 258 (1949).
Where the contract of a married woman does not expressly bind her separate estate for payment of a debt, the question of her intention must be determined as a fact from all evidence and surrounding circumstances. Federal Land Bank of Omaha v. Plumer, 139 Neb. 301, 297 N.W. 541 (1941).
A valid provision in a contract, whereby a married woman expressly and unequivocally binds her separate estate, is conclusive proof of such intention, and cannot be contradicted by parol evidence. Fidelity & Deposit Co. v. Lapidus, 136 Neb. 473, 286 N.W. 386 (1939).
Statutes have removed common-law disability of married woman to contract only in cases where contract has reference to her separate property, trade or business, or was made on the faith or credit thereof, and with intent on her part thereby to bind her separate property. John Fletcher College v. Estate of Pailing, 121 Neb. 847, 238 N.W. 750 (1931).
Estate of husband in deceased wife's property is subject to her debts. Miller v. Hanna, 89 Neb. 224, 131 N.W. 226 (1911).
Mortgage on separate estate without consideration, to secure debt of husband or third person, is void. Conkling v. Levie, 66 Neb. 132, 94 N.W. 987 (1902).
A wife may own personal property the same as married man, and joint possession of both raises no presumption that husband is owner. Booknau v. Clark, 58 Neb. 610, 79 N.W. 159 (1899); Oberfelder v. Kavanaugh, 29 Neb. 427, 45 N.W. 471 (1890).
Wife has absolute control over property owned by her at time of marriage. Broadwater v. Jacoby, 19 Neb. 77, 26 N.W. 629 (1886).
It is no defense that husband alone received consideration for mortgage. Wilson v. Neu, 1 Neb. Unof. 42, 95 N.W. 502 (1901).
Property coming to the wife by gift from the husband is excepted from the wife's separate estate. United States v. Sode, 93 F.Supp. 398 (D. Neb. 1950).
2. Liability for debts of husband
Separate estate of wife is not liable for husband's debts, though in husband's possession and assessed in his name. Taggart v. Fowler, 25 Neb. 152, 40 N.W. 954 (1888).
Property purchased with own savings is not subject to husband's debts. Callahan v. Powers, 24 Neb. 731, 40 N.W. 292 (1888).
Property of wife is not subject to sale for ordinary debts of husband. Leighton v. Stuart, 19 Neb. 546, 26 N.W. 198 (1886).
3. Liability for necessaries
The term family herein includes a husband residing in same household with other members and medical services for him are necessaries for which wife may be liable. Nichol v. Clema, 188 Neb. 74, 195 N.W.2d 233 (1972).
Husband is not bound without his assent to a contract made by his wife relating to a subject other than necessaries of life. Lincoln v. Knudsen, 163 Neb. 390, 79 N.W.2d 716 (1956).
Statute makes property of married woman liable for debts for necessaries but no personal liability is imposed on her where she has no separate estate. Dreamer v. Oberlander, 122 Neb. 335, 240 N.W. 435 (1932).
Property acquired by wife after divorce is not liable for debt contracted by husband for family necessaries prior to divorce. Deitz Lumber Co. v. Anderson, 116 Neb. 205, 216 N.W. 667 (1927).
Property of married woman is not liable for payment of debts contracted for family necessaries until after execution issued against husband for same has been returned unsatisfied. Scott v. House, 93 Neb. 325, 140 N.W. 631 (1913).
Necessaries includes medical expenses of husband. Leake v. Lucas, 65 Neb. 359, 91 N.W. 374 (1902); on rehearing, 65 Neb. 365, 93 N.W. 1019 (1902).
Statute of limitations does not start to run until return of execution against husband is unsatisfied. Noreen v. Hansen, 64 Neb. 858, 90 N.W. 937 (1902).
In action against wife on note given for necessaries, petition must allege execution against husband returned unsatisfied. Fulton v. Ryan, 60 Neb. 9, 82 N.W. 105 (1900).
Wife is surety for necessaries of life, but is not bound until execution is returned unsatisfied. Small v. Sandall, 48 Neb. 318, 67 N.W. 156 (1896); George v. Edney, 36 Neb. 604, 54 N.W. 986 (1893).
Exempt property is not liable for debts for necessaries. Schaller v. Kurtz, 25 Neb. 655, 41 N.W. 642 (1889).
4. Miscellaneous
This section does not limit the county court's jurisdiction to determine the custody of a minor child whose custody is subject to a preexisting district court order where the county court's jurisdiction is invoked by the county attorney acting to protect the child pursuant to section 43-205. Schleuter v. McCuiston, 203 Neb. 101, 277 N.W.2d 667 (1979).
Husband remains primarily liable for expenses of last illness and burial of wife. In re Estate of White, 150 Neb. 167, 33 N.W.2d 470 (1948).
Where wife is joint tenant of property, she may exercise her rights with respect to consenting or objecting to proposed special assessments independent of her husband. Bonner v. City of Imperial, 149 Neb. 721, 32 N.W.2d 267 (1948).
A married woman cannot sue husband for personal injuries or recover against husband's employer for husband's negligence for which husband is liable to employer. Emerson v. Western Seed & Irrigation Co., 116 Neb. 180, 216 N.W. 297 (1927).
Presence of wife raises no presumption that tort committed by husband was committed as her agent, even though with reference to separate estate. Carnahan v. Cummings, 105 Neb. 337, 180 N.W. 558 (1920).
Contract between husband and wife that she receive compensation for services outside of domestic duties, is valid and enforceable as against him or his estate. In re Estate of Cormick, 100 Neb. 669, 160 N.W. 989 (1916).
Equitable rule sustaining gifts by solvent husband or wife is still in force. First Nat. Bank of Wahoo v. Havlik, 51 Neb. 668, 71 N.W. 291 (1897); Studebaker Bros. Mfg. Co. v. Welch, 51 Neb. 228, 70 N.W. 920 (1897); Dayton Spice-Mills Co. v. Sloan, 49 Neb. 622, 68 N.W. 1040 (1896).
Wife may become creditor of husband. Lipscomb v. Lyon, 19 Neb. 511, 27 N.W. 731 (1886).
Common-law rights of husband and wife exist except as modified by statute. Aultman, Taylor & Co. v. Obermeyer, 6 Neb. 260 (1877).
A married woman of age at time of registration of land under Torrens Act who was served with process is bound by the decree. Jones v. York County, 26 F.2d 623 (8th Cir. 1928).
A married woman may bargain, sell, and convey her real and personal property. Such a woman may enter into any contract in the same manner, to the same extent, and with like effect as a married man. The obligations of her contracts shall be the same as a married man.
Source: Laws 1871, § 2, p. 68; R.S.1913, § 1561; C.S.1922, § 1510; C.S.1929, § 42-202; R.S.1943, § 42-202; Laws 1957, c. 172, § 1, p. 594.
Annotations
1. Power over separate property
2. Liability as surety
3. Contracts prior to 1957 amendment
4. Mortgages
5. Conveyances
6. Pleading coverture prior to 1957 amendment
7. Mechanic's lien
8. Miscellaneous
1. Power over separate property
Rights of wife with respect to property held in joint tenancy are not different from those of her husband. Bonner v. City of Imperial, 149 Neb. 721, 32 N.W.2d 267 (1948).
Legislature has placed a married man and woman on a parity with reference to real and personal property. Focht v. Wakefield, 145 Neb. 568, 17 N.W.2d 627 (1945).
Husband cannot sell wife's property, but she may sell it to same extent as married man. Marsh v. Marsh, 92 Neb. 189, 137 N.W. 1122 (1912).
A married woman has same power over separate property as husband has over his. Kloke v. Martin, 55 Neb. 554, 76 N.W. 168 (1898); Melick v. Varney, 41 Neb. 105, 59 N.W. 521 (1894); Farwell v. Cramer, 38 Neb. 61, 56 N.W. 716 (1893).
2. Liability as surety
When a bank has given extension of time upon indebtedness of husband and wife by taking a new note therefor, such extension is sufficient consideration to support wife's contract to bind separate estate. Harbine Bank of Fairbury v. McCune, 131 Neb. 419, 268 N.W. 358 (1936).
Under former law, note by married woman as husband's surety, was binding on her only on showing her intention to bind separate estate. First Nat. Bank of Alexandria, S.D. v. Ernst, 117 Neb. 34, 219 N.W. 798 (1928).
Under former law, wife had power to contract with reference to separate estate only, and it was not presumed that she intended to charge same. Northwall & Co. v. Osgood, 80 Neb. 764, 115 N.W. 308 (1908); Farmers' Bank v. Boyd, 67 Neb. 497, 93 N.W. 676 (1903); Citizens State Bank of Wood River v. Smout, 62 Neb. 223, 86 N.W. 1068 (1901); Westervelt v. Baker, 56 Neb. 63, 76 N.W. 440 (1898); State Nat. Bank v. Smith, 55 Neb. 54, 75 N.W. 51 (1898); First Nat. Bank of Sutton v. Grosshans, 54 Neb. 773, 75 N.W. 51 (1898); Stenger Benevolent Assn. v. Stenger, 54 Neb. 427, 74 N.W. 846 (1898); Grand Island Banking Co. v. Wright, 53 Neb. 574, 74 N.W. 82 (1898).
Separate estate of wife was bound by guaranty on note regardless of disposition of proceeds. Kitchen v. Chapin, 64 Neb. 144, 89 N.W. 632 (1902).
Under former law, wife might be surety, if she intended to bind her separate estate. McKell v. Merchants' Nat. Bank, 62 Neb. 608, 87 N.W. 317 (1901); First Nat. Bank of Chicago v. Stoll, 57 Neb. 758, 78 N.W. 254 (1899).
Wife may be surety on husband's note. Spatz v. Martin, 46 Neb. 917, 65 N.W. 1063 (1896).
Evidence was sufficient to show joint note charged separate estate. Bowen v. Foss, 28 Neb. 373, 44 N.W. 450 (1889).
Under former law, wife was not liable as surety unless she intended to bind separate estate. The State Savings Bank of St. Joseph, Mo. v. Scott, 10 Neb. 83, 4 N.W. 314 (1880).
Creation of debt is prima facie evidence of intent to charge separate estate. Webb v. Hoselton, 4 Neb. 308 (1876).
3. Contracts prior to 1957 amendment
Where the contract of a married woman does not expressly bind her separate estate for payment of a debt, the question of her intention must be determined as a fact from all evidence and surrounding circumstances. Federal Land Bank of Omaha v. Plumer, 139 Neb. 301, 297 N.W. 541 (1941).
A married woman may enter into a business partnership with another as part of her own trade or business, and when she does, she becomes bound as partner and is liable for partnership debts whether contracted by herself or another member of the firm. Plattsmouth State Bank v. John Bauer & Co., 133 Neb. 35, 274 N.W. 204 (1937).
General money judgment on contract executed by married woman during coverture, binding separate estate, is enforceable only against property or proceeds she possessed at time of making of contract. Giltner State Bank v. Talich, 115 Neb. 236, 212 N.W. 536 (1927).
A married woman may contract to pay tuition essential to an educational course for herself in osteopathy, though she has no separate estate. Still College v. Morris, 93 Neb. 328, 140 N.W. 272 (1913).
Contract binding separate estate includes only property then owned, unless otherwise specified. Marsh v. Marsh, 92 Neb. 189, 137 N.W. 1122 (1912).
The contract of a married woman can only be enforced against the separate estate which she possessed at the date of the contract. Parratt v. Hartsuff, 75 Neb. 706, 106 N.W. 966 (1906); McKell v. Merchants' Nat. Bank, 62 Neb. 608, 87 N.W. 317 (1901); Kocher v. Cornell, 59 Neb. 315, 80 N.W. 911 (1899).
A married woman may contract to same extent as formerly in equity. Kocher v. Cornell, 59 Neb. 315, 80 N.W. 911 (1899).
In an action against a married woman on a note executed by her as surety, coverture is a complete defense unless it is shown that she intended to bind separate estate. Smith v. Bond, 56 Neb. 529, 76 N.W. 1062 (1898); Kershaw v. Barrett, 3 Neb. Unof. 36, 90 N.W. 764 (1902).
Married woman has power to contract with reference to separate estate only. Grand Island Banking Co. v. Wright, 53 Neb. 574, 74 N.W. 82 (1898).
A married woman is not liable as maker of note unless she intended to bind separate estate. Barnum v. Young, 10 Neb. 309, 4 N.W. 1054 (1880).
A married woman may contract with husband and sue him on contract. May v. May, 9 Neb. 16, 2 N.W. 221 (1879).
4. Mortgages
A married woman may mortgage her separate estate to indemnify the sureties upon an official bond of her husband. Bode v. Jussen, 93 Neb. 482, 140 N.W. 768 (1913).
Contemporaneous loan to husband is consideration. Holmes v. Hull, 50 Neb. 656, 70 N.W. 241 (1897); Watts v. Gantt, 42 Neb. 869, 61 N.W. 104 (1894); Briggs v. First Nat. Bank of Beatrice, 41 Neb. 17, 59 N.W. 351 (1894); Smith v. Spaulding, 40 Neb. 339, 58 N.W. 952 (1894).
A married woman may mortgage separate estate to secure husband's debt. Nelson v. Bevins, 19 Neb. 715, 28 N.W. 331 (1886); Stevenson v. Craig, 12 Neb. 464, 12 N.W. 1 (1882).
Mortgage to secure money, embezzled by husband to prevent his punishment, was not executed under duress. Mundy v. Whittemore, 15 Neb. 647, 19 N.W. 694 (1884).
Under former law, a consideration must exist for mortgage by married woman of her separate estate to secure husband's debt. Kansas Mfg. Co. v. Gandy, 11 Neb. 448, 9 N.W. 569 (1881).
Under former law, where there was no proof of intention to bind separate estate, deficiency judgment on foreclosure should be refused. Morris v. Linton, 4 Neb. Unof. 550, 95 N.W. 11 (1903); Farmers Bank v. Normand, 3 Neb. Unof. 643, 92 N.W. 723 (1902).
5. Conveyances
Husband may convey directly to wife. Currier v. Teske, 84 Neb. 60, 120 N.W. 1015 (1909); Lavigne v. Tobin, 52 Neb. 686, 72 N.W. 1040 (1897); Furrow v. Athey, 21 Neb. 671, 33 N.W. 208 (1887).
A conveyance by a married woman of her separate property, not her homestead, is valid between the parties, although not acknowledged. Linton v. Cooper, 53 Neb. 400, 73 N.W. 731 (1898).
Contract between husband and wife is valid if it is made voluntarily upon consideration. Greene v. Greene, 42 Neb. 634, 60 N.W. 937 (1894).
A married woman may give power of attorney to husband, authorizing him to convey her separate estate. Benschoter v. Atkins, 25 Neb. 645, 41 N.W. 639 (1889); Benschoter v. Lalk, 24 Neb. 251, 38 N.W. 746 (1888).
A married woman is liable on covenants of warranty in deed conveying her separate estate, though husband joins. Real v. Hollister, 17 Neb. 661, 24 N.W. 333 (1885).
Deed unacknowledged is void. Roode v. State, 5 Neb. 174 (1876).
6. Pleading coverture prior to 1957 amendment
Plea of coverture must negative conditions under which party might contract. First Nat. Bank of Chicago v. Stoll, 57 Neb. 758, 78 N.W. 254 (1899).
Answer must allege that contract did not concern her separate estate. Gillespie v. Smith, 20 Neb. 455, 30 N.W. 526 (1886).
7. Mechanic's lien
Under former law, where contract was made with husband and not ratified by wife, mechanic's lien on separate estate of wife was invalid. Rust-Owen Lumber Co. v. Holt, 60 Neb. 80, 82 N.W. 112 (1900).
There can be a valid mechanic's lien for improvements on separate estate. Howell v. Hathaway, 28 Neb. 807, 44 N.W. 1136 (1890).
8. Miscellaneous
Wife may make independent contract for services of attorney in divorce suit, but husband is only liable upon court approval of application for allowance of fees. Auld v. Auld, 122 Neb. 576, 240 N.W. 756 (1932).
Legislation was designed to remove disabilities from married woman, so as to place both sexes in equal position before the law. Emerson v. Western Seed & Irrigation Co., 116 Neb. 180, 216 N.W. 297 (1927).
This section has no reference to the right of a married woman to testify. Greene v. Greene, 42 Neb. 634, 60 N.W. 937 (1894).
Under former law, whether contract was made in reference to separate estate was for jury. Godfrey v. Megahan, 38 Neb. 748, 57 N.W. 284 (1894).
Deed by married woman of sixteen is binding. Ward v. Laverty, 19 Neb. 429, 27 N.W. 393 (1886).
Property coming to the wife by gift from the husband is excepted from the wife's separate estate. United States v. Sode, 93 F.Supp. 398 (D. Neb. 1950).
Any married woman may carry on trade or business, and perform any labor or services on her sole and separate account; and the earnings of any married woman, from her trade, business, labor or services, shall be her sole and separate property, and may be used and invested by her in her own name.
Source: Laws 1871, § 4, p. 68; R.S.1913, § 1562; C.S.1922, § 1511; C.S.1929, § 42-203; R.S.1943, § 42-203.
Annotations
1. Earnings of wife
2. Carrying on business
3. Miscellaneous
1. Earnings of wife
A married woman may recover for loss of earning capacity. Montgomery v. Miller, 83 Neb. 625, 120 N.W. 197 (1909).
A married woman may recover for loss of future earnings from labor through permanent injury, though not engaged in business now. Bliss v. Beck, 80 Neb. 290, 114 N.W. 162 (1907).
Earnings as seamstress do not belong to husband. Riley v. Lidtke, 49 Neb. 139, 68 N.W. 356 (1896).
The married woman's act does not deprive the husband of his right of action for loss of services of the wife. Omaha & R. V. Ry. v. Chollette, 41 Neb. 578, 59 N.W. 921 (1894).
2. Carrying on business
Under former act, married woman was only partially emancipated from common-law disability to contract. Marmet v. Marmet, 160 Neb. 366, 70 N.W.2d 301 (1955).
A married woman may enter into a business partnership with another as part of her own trade or business, and when she does she becomes bound as partner and is liable for partnership debts whether contracted by herself or another member of the firm. Plattsmouth State Bank v. John Bauer & Co., 133 Neb. 35, 274 N.W. 204 (1937).
The word business is applicable to any particular employment, occupation, or profession, followed as a means of livelihood. Mergenthaler Linotype Co. v. McNamee, 125 Neb. 71, 249 N.W. 92 (1933).
Common-law disability of married woman to make contracts has been removed only in cases where the contract has reference to her separate property, trade or business, or was made with intent to bind her separate estate. Farm Mortgage & Loan Co. v. Beale, 113 Neb. 293, 202 N.W. 877 (1925).
Husband may act as agent in managing business. Harris v. Weir-Shugart Co., 51 Neb. 483, 70 N.W. 1118 (1897).
A married woman may carry on business and contract in own name. Shortel v. Young, 23 Neb. 408, 36 N.W. 572 (1888).
3. Miscellaneous
Wife was not bound by husband's covenant not to acquire competitive business. Adams v. Adams, 156 Neb. 778, 58 N.W.2d 172 (1953).
Where the contract of a married woman does not expressly bind her separate estate for payment of a debt, the question of her intention must be determined as a fact from all evidence and surrounding circumstances. Federal Land Bank of Omaha v. Plumer, 139 Neb. 301, 297 N.W. 541 (1941).
Collective bargaining agreement between railroad and union that married women should not be employed does not violate this section, and is not against public policy. Brisbin v. E. L. Oliver Lodge No. 335, 134 Neb. 517, 279 N.W. 277 (1938).
Statute limiting right of married woman to contract, has no application to note executed in and governed by laws of another state. Farmers State Bank of Hayfield, Minn. v. Butler, 101 Neb. 635, 164 N.W. 562 (1917).
A married woman is eligible to hold office of county treasurer. State ex rel. Jordan v. Quible, 86 Neb. 417, 125 N.W. 619 (1910).
Any woman who shall have been married out of this state shall, if her husband afterwards becomes a resident of this state, enjoy all the rights as to property which she may have acquired by the laws of any other state, territory or country, or which she may have acquired by virtue of any marriage contract or settlement made out of this state.
Source: Laws 1871, § 5, p. 68; R.S.1913, § 1563; C.S.1922, § 1512; C.S.1929, § 42-204; R.S.1943, § 42-204.
Nothing contained in sections 42-201 to 42-205 shall invalidate any marriage settlement or contract.
Source: Laws 1871, § 6, p. 68; R.S.1913, § 1564; C.S.1922, § 1513; C.S.1929, § 42-205; R.S.1943, § 42-205.
The property of the husband shall not be liable for any debts contracted by the wife before marriage.
Source: Laws 1877, § 1, p. 33; R.S.1913, § 1565; C.S.1922, § 1514; C.S.1929, § 42-206; R.S.1943, § 42-206.
Annotations
Husband, separated from wife and paying temporary alimony, is not liable for necessaries furnished wife. Wise Memorial Hospital Assn. v. Peyton, 99 Neb. 48, 154 N.W. 838 (1915).
A married woman shall not be bound by any covenant in a joint deed of herself and husband.
Source: R.S.1866, c. 43, § 53, p. 291; R.S.1913, § 1566; C.S.1922, § 1515; C.S.1929, § 42-207; R.S.1943, § 42-207.
Annotations
Wife joining with husband in conveyance of his property, in order to release her interest in same, is not liable in damages for breach of covenants of warranty. Pauley v. Knouse, 109 Neb. 716, 192 N.W. 195 (1923).
Wife is not liable on covenants in mortgage which she signed to release dower rights. Pochin v. Conley, 74 Neb. 429, 104 N.W. 878 (1905).
Wife is liable on covenant of warranty on conveyance of separate estate, though husband joins. Real v. Hollister, 17 Neb. 661, 24 N.W. 333 (1885).
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
Repealed. Laws 1972, LB 820, § 35.
A divorce from the bonds of matrimony obtained in another jurisdiction shall be of no force or effect in this state, if both parties to the marriage were domiciled in this state at the time the proceeding for the divorce was commenced except as provided in section 30-2353.
Source: Laws 1949, c. 124, § 1, p. 331; Laws 1975, LB 481, § 29.
Annotations
Dominican Republic divorce decree involving Nebraska domiciliaries held of no effect and not entitled to comity. Weber v. Weber, 200 Neb. 659, 265 N.W.2d 436 (1978).
This section does not contravene full faith and credit clause of federal Constitution. Zenker v. Zenker, 161 Neb. 200, 72 N.W.2d 809 (1955).
Divorce obtained in foreign state is of no force and effect in this state if both parties were domiciled in this state at the time the proceeding was commenced. Yost v. Yost, 161 Neb. 164, 72 N.W.2d 689 (1955).
Proof that a person obtaining a divorce from the bonds of matrimony in another jurisdiction was (1) domiciled in this state within twelve months prior to the commencement of the proceeding therefor, and resumed residence in this state within eighteen months after the date of his departure therefrom, or (2) at all times after his departure from this state, and until his return maintained a place of residence within this state, shall be prima facie evidence that the person was domiciled in this state when the divorce proceeding was commenced.
Source: Laws 1949, c. 124, § 2, p. 331.
Annotations
Rule as to prima facie evidence applied to Florida decree. Yost v. Yost, 161 Neb. 164, 72 N.W.2d 689 (1955).
Sections 42-341 to 42-344 shall be so interpreted and construed as to effectuate their general purpose to make uniform the law of those states which enact them.
Source: Laws 1949, c. 124, § 3, p. 331.
Sections 42-341 to 42-344 may be cited as the Uniform Divorce Recognition Act.
Source: Laws 1949, c. 124, § 4, p. 332.
When any district court in this state shall have entered of record a decree of divorce prior to August 27, 1951, it shall be conclusively presumed that the decree, and all instruments and proceedings in connection therewith, are valid in all respects, notwithstanding some defect or defects as may appear on the face of the record or the absence of any record of such court, unless an action is brought within two years from August 27, 1951, attacking the validity thereof.
Source: Laws 1951, c. 122, § 1, p. 536.
When any district court in this state has entered a decree of divorce after August 27, 1951, and when any county court in this state has entered a decree of divorce on or after October 1, 1997, it shall be conclusively presumed that the decree, and all instruments and proceedings in connection therewith are valid in all respects, notwithstanding some defect or defects as may appear on the face of the record or the absence of any record of such court, unless an action is brought within two years from the entry of such decree of divorce attacking the validity thereof.
Source: Laws 1951, c. 122, § 2, p. 536; Laws 1996, LB 1296, § 9.
For purposes of sections 42-347 to 42-381, unless the context otherwise requires:
(1) Authorized attorney means an attorney (a) employed by the county subject to the approval of the county board, (b) employed by the Department of Health and Human Services, or (c) appointed by the court, who is authorized to investigate and prosecute child and spousal support cases. An authorized attorney shall represent the state as provided in section 43-512.03;
(2) Custody includes both legal custody and physical custody;
(3) Dissolution of marriage means the termination of a marriage by decree of a court of competent jurisdiction upon a finding that the marriage is irretrievably broken. The term dissolution of marriage shall be considered synonymous with divorce, and whenever the term divorce appears in the statutes it means dissolution of marriage pursuant to sections 42-347 to 42-381;
(4) Joint legal custody has the same meaning as in section 43-2922;
(5) Joint physical custody has the same meaning as in section 43-2922;
(6) Legal custody has the same meaning as in section 43-2922;
(7) Legal separation means a decree of a court of competent jurisdiction providing that two persons who have been legally married shall thereafter live separate and apart and providing for any necessary adjustment of property, support, and custody rights between the parties but not dissolving the marriage;
(8) Physical custody has the same meaning as in section 43-2922;
(9) Spousal support, when used in the context of income withholding or any provisions of law which might lead to income withholding, means alimony or maintenance support for a spouse or former spouse when ordered as a part of an order, decree, or judgment which provides for child support and the child and spouse or former spouse are living in the same household;
(10) State Disbursement Unit has the same meaning as in section 43-3341;
(11) Support order has the same meaning as in section 43-1717; and
(12) Title IV-D Division has the same meaning as in section 43-3341.
Source: Laws 1972, LB 820, § 1; Laws 1985, Second Spec. Sess., LB 7, § 8; Laws 1987, LB 573, § 1; Laws 1989, LB 401, § 2; Laws 1994, LB 1224, § 42; Laws 1996, LB 1044, § 98; Laws 1997, LB 229, § 7; Laws 1997, LB 307, § 15; Laws 2000, LB 972, § 7; Laws 2007, LB554, § 28.
Annotations
Subdivision (3) of this section, which provides that to dissolve a marriage, a court need only find it is irretrievably broken, does not violate the procedural due process provisions of the U.S. and Nebraska Constitutions. Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020).
That the parties must be married in order for the court to legally separate them is implicit in subsection (3) of this section. Bogardi v. Bogardi, 249 Neb. 154, 542 N.W.2d 417 (1996).
Child support orders entered under sections 42-347 to 42-379 must give effect to child support orders entered under section 43-512.04. Robbins v. Robbins, 219 Neb. 151, 361 N.W.2d 519 (1985).
The Nebraska divorce laws are not unconstitutional under the due process or equal protection clauses of the United States and Nebraska Constitutions. Roberts v. Roberts, 200 Neb. 256, 263 N.W.2d 449 (1978).
An unqualified allowance of alimony in gross before July 6, 1972, is not subject to modification. Kasper v. Kasper, 195 Neb. 754, 240 N.W.2d 591 (1976).
Divorce action pending on appeal is tried de novo on the record in the Supreme Court and decided under terms of the newly effective no fault marriage dissolution act. Hassler v. Hassler, 190 Neb. 86, 206 N.W.2d 40 (1973).
Where district court labeled award "spousal support," and parties had no children, it in fact awarded alimony. Mastrocesare v. Mastrocesare, 2 Neb. App. 231, 507 N.W.2d 683 (1993).
All proceedings under sections 42-347 to 42-381 shall be brought in the district court of the county in which one of the parties resides. Proceedings may be transferred to a separate juvenile court or county court sitting as a juvenile court which has acquired jurisdiction pursuant to section 43-2,113. Certified copies of orders filed with the clerk of the court pursuant to such section shall be treated in the same manner as similar orders issued by the court.
Source: Laws 1972, LB 820, § 2; Laws 1985, Second Spec. Sess., LB 7, § 9; Laws 1996, LB 1296, § 10; Laws 1997, LB 229, § 8.
Annotations
If one of the parties to a dissolution action has had a Nebraska domicile for the duration prescribed by section 42-349, a party may commence a dissolution action under this section in the county where one of the parties lives and is not required to commence the action in the domiciliary county of either party to the dissolution action. Huffman v. Huffman, 232 Neb. 742, 441 N.W.2d 899 (1989).
A district court cannot acquire jurisdiction over dissolution of marriage proceedings unless one of the parties is a resident of the county in which the court is located at the time the original petition is filed. Small v. Small, 229 Neb. 344, 427 N.W.2d 42 (1988).
No action for dissolution of marriage may be brought unless at least one of the parties has had actual residence in this state with a bona fide intention of making this state his or her permanent home for at least one year prior to the filing of the complaint, or unless the marriage was solemnized in this state and either party has resided in this state from the time of marriage to filing the complaint. Persons serving in the armed forces of the United States who have been continuously stationed at any military base or installation in this state for one year or, if the marriage was solemnized in this state, have resided in this state from the time of marriage to the filing of the complaint shall for the purposes of sections 42-347 to 42-381 be deemed residents of this state.
Source: Laws 1972, LB 820, § 3; Laws 1997, LB 229, § 9; Laws 2004, LB 1207, § 18.
Annotations
1. Residence
2. Miscellaneous
1. Residence
The inference that residency in Nebraska has been with the intent to make it one's permanent home is negated where he or she is a nonimmigrant alien residing in Nebraska on a visitor's visa. Rozsnyai v. Svacek, 272 Neb. 567, 723 N.W.2d 329 (2006).
One who proves he or she met the durational residency requirement shall be permitted the inference that such residency was with the intention to make Nebraska a permanent home, absent a showing that the residency was a sham and not bona fide. Rector v. Rector, 224 Neb. 800, 401 N.W.2d 167 (1987).
Domicile is obtained only through a person's physical presence, accompanied by the present intention to remain indefinitely at a location or site, or by the present intention to make a location or site the person's permanent or fixed home. The absence of either presence or intention thwarts the establishment of domicile. Lasu v. Lasu, 28 Neb. App. 478, 944 N.W.2d 773 (2020).
In order to effect a change of domicile, there must not only be a change of residence, but an intention to permanently abandon the former home. The mere residing at a different place, although evidence of a change, is, however long continued, per se insufficient. A brief move to another location to see if living with one's spouse will succeed may not indicate present intent to change one's domicile. Lasu v. Lasu, 28 Neb. App. 478, 944 N.W.2d 773 (2020).
Once established, domicile continues until a new domicile is perfected. Lasu v. Lasu, 28 Neb. App. 478, 944 N.W.2d 773 (2020).
The language of this section requiring an "actual residence in this state" means that one party is required to have a bona fide domicile in Nebraska for 1 year before commencement of a dissolution action. Lasu v. Lasu, 28 Neb. App. 478, 944 N.W.2d 773 (2020).
A plaintiff satisfied Nebraska's residency requirement to obtain a divorce where he alleged in the complaint that he had lived in Nebraska for more than 1 year with the intent of making this state a permanent home. Metzler v. Metzler, 25 Neb. App. 757, 913 N.W.2d 733 (2018).
The language of this section requiring an "actual residence in this state" means that one party is required to have a bona fide domicile in Nebraska for 1 year before commencement of a dissolution action. Metzler v. Metzler, 25 Neb. App. 757, 913 N.W.2d 733 (2018).
In order to maintain an action for divorce in Nebraska, one of the parties must have had actual residence in this state with a bona fide intention of making this state his or her permanent home for at least 1 year prior to the filing of the complaint. Catlett v. Catlett, 23 Neb. App. 136, 869 N.W.2d 368 (2015).
The requirement that one party have "actual residence in this state" means that one party must have a "bona fide domicile" in the state for 1 year before the commencement of a dissolution action. Catlett v. Catlett, 23 Neb. App. 136, 869 N.W.2d 368 (2015).
2. Miscellaneous
This section is not unconstitutional. Ashley v. Ashley, 191 Neb. 824, 217 N.W.2d 926 (1974).
Repealed. Laws 2007, LB 554, § 49.
If a complaint for legal separation is filed before residence requirements for dissolution of marriage have been complied with, either party, upon complying with such requirements, may amend his or her pleadings to request a dissolution of marriage, and notice of such amendment shall be given in the same manner as for an original action under sections 42-347 to 42-381.
Source: Laws 1972, LB 820, § 4; Laws 1997, LB 229, § 10; Laws 2004, LB 1207, § 19.
Annotations
After residency requirement has been satisfied, dissolution of marriage may be requested by amendment. Ashley v. Ashley, 191 Neb. 824, 217 N.W.2d 926 (1974).
(1) In proceedings under sections 42-347 to 42-381, the court shall have jurisdiction to inquire into such matters, make such investigations, and render such judgments and make such orders, both temporary and final, as are appropriate concerning the status of the marriage, the custody and support of minor children, the support of either party, the settlement of the property rights of the parties, and the award of costs and attorney's fees. The court shall determine jurisdiction for child custody proceedings under the Uniform Child Custody Jurisdiction and Enforcement Act.
(2) When final orders relating to proceedings governed by sections 42-347 to 42-381 are on appeal and such appeal is pending, the court that issued such orders shall retain jurisdiction to provide for such orders regarding support, custody, parenting time, visitation, or other access, orders shown to be necessary to allow the use of property or to prevent the irreparable harm to or loss of property during the pendency of such appeal, or other appropriate orders in aid of the appeal process. Such orders shall not be construed to prejudice any party on appeal.
Source: Laws 1972, LB 820, § 5; Laws 1984, LB 276, § 1; Laws 1991, LB 732, § 100; Laws 1992, LB 360, § 10; Laws 1996, LB 1296, § 11; Laws 1997, LB 229, § 11; Laws 2002, LB 876, § 73; Laws 2003, LB 148, § 42; Laws 2007, LB554, § 29.
Cross References
Annotations
1. Jurisdiction of court
2. Investigations
3. Custody of children
4. Attorneys' fees
5. Miscellaneous
1. Jurisdiction of court
The court had continuing jurisdiction to provide for orders regarding parenting time or other access where, following the filing of a notice of appeal, the court held further hearings but did not make new determinations about the identical issues being appealed; rather, the court entered a purge order setting forth terms to be complied with in order to gain release from jail. Yori v. Helms, 307 Neb. 375, 949 N.W.2d 325 (2020).
Pursuant to subsection (2) of this section, a trial court may retain jurisdiction to provide for an order concerning custody and parenting time even while an appeal is pending; however, a court does not retain authority to hear and determine anew the very issues then pending on appeal and to enter permanent orders addressing these issues during the appeal process. Becher v. Becher, 302 Neb. 720, 925 N.W.2d 67 (2019).
The trial court was not divested of jurisdiction to enter an order modifying child custody where orders that were pending on appeal did not address custody. Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016).
An order helping a party pay for his or her attorney's work on appeal is an order in aid of the appeal process under subsection (2) of this section. Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016).
The word “support” in subsection (2) of this section includes spousal support, i.e., alimony. Spady v. Spady, 284 Neb. 885, 824 N.W.2d 366 (2012).
Pursuant to subsection (1) of this section, jurisdiction over a child custody proceeding is governed exclusively by the Uniform Child Custody Jurisdiction and Enforcement Act. Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1 (2008).
Full and complete general jurisdiction over the entire marital relationship and all related matters, including child custody and support, is vested in the district court in which a petition for dissolution of a marriage is properly filed. Knerr v. Swigerd, 243 Neb. 591, 500 N.W.2d 839 (1993); Nemec v. Nemec, 219 Neb. 891, 367 N.W.2d 705 (1985); Robbins v. Robbins, 219 Neb. 151, 361 N.W.2d 519 (1985).
Full and complete general jurisdiction over child custody and support is vested in the district court in which a petition for dissolution of a marriage is properly filed. Smith v. Smith, 242 Neb. 812, 497 N.W.2d 44 (1993).
The district court in which a divorce is granted maintains continuing jurisdiction over the marital relationship and all related matters, including child custody and support, unless and until the case is transferred to another court. State ex rel. Storz v. Storz, 235 Neb. 368, 455 N.W.2d 182 (1990).
Where minor children are affected by a divorce proceeding, the district court has complete jurisdiction over the custody, support, and welfare of those children. Farmer v. Farmer, 200 Neb. 308, 263 N.W.2d 664 (1978).
A district court had subject matter jurisdiction to adjudicate a husband's divorce because his complaint for dissolution of marriage fell within the court's jurisdiction, even though there were no marital assets in Nebraska. Metzler v. Metzler, 25 Neb. App. 757, 913 N.W.2d 733 (2018).
Generally, once an appeal has been perfected, the trial court no longer has jurisdiction, although the district court retains jurisdiction under subsection (2) of this section for certain matters. Furstenfeld v. Pepin, 23 Neb. App. 673, 875 N.W.2d 468 (2016).
Subsection (2) of this section does not grant authority to hear and determine anew the very issues then pending on appeal and to enter permanent orders addressing these issues during the appeal process. Furstenfeld v. Pepin, 23 Neb. App. 673, 875 N.W.2d 468 (2016).
Satisfaction of the residency requirement in section 42-349 is required to confer subject matter jurisdiction on a district court hearing a dissolution proceeding. Catlett v. Catlett, 23 Neb. App. 136, 869 N.W.2d 368 (2015).
This section does not allow a district court to retain jurisdiction to permanently modify a decree concerning an issue which is pending appeal from a previous order concerning the same issue. Bayliss v. Bayliss, 8 Neb. App. 269, 592 N.W.2d 165 (1999).
Generally, once an appeal has been perfected, the trial court has no jurisdiction to determine any issues regarding the subject matter of the litigation. However, if a supersedeas bond has not been filed, the court retains jurisdiction to enforce the terms of the judgment. Kricsfeld v. Kricsfeld, 8 Neb. App. 1, 588 N.W.2d 210 (1999).
2. Investigations
In a divorce case, ex parte investigative reports are not evidence, and cannot be the basis for any adjudication. Jorgensen v. Jorgensen, 194 Neb. 271, 231 N.W.2d 360 (1975).
Error, if any, in such use as was made of the testimony of an independent investigator and her report which was submitted to the court and filed but not received in evidence, was harmless since the award of custody was amply supported by the record. Kockrow v. Kockrow, 191 Neb. 657, 217 N.W.2d 89 (1974).
Investigation was authorized and petitioner had opportunity to explore and introduce evidence with reference to the report, and even if it was in part inadmissible it is presumed the court did not base its decision thereon. Christensen v. Christensen, 191 Neb. 355, 215 N.W.2d 111 (1974).
3. Custody of children
The best interests and welfare of children is paramount in custody cases and the court may place the children in its custody if continuance thereof so requires. Broadstone v. Broadstone, 190 Neb. 299, 207 N.W.2d 682 (1973).
Under the divorce law it was held that when the court had placed custody of the children in the court, with possession and care in a parent, it could summarily modify the possession of the parent or parents in the best interests of the children. Benson v. Benson, 190 Neb. 87, 206 N.W.2d 51 (1973).
4. Attorneys' fees
A court has no authority under this section to fix the amount of attorney fees which the parties are to pay their respective attorneys. Griffin v. Vandersnick, 210 Neb. 590, 316 N.W.2d 299 (1982).
Adultery of party will not as a matter of law prevent an award of attorney's fees nor affect the payment of costs. Lockard v. Lockard, 193 Neb. 400, 227 N.W.2d 581 (1975).
5. Miscellaneous
A district court has no authority to include a child who is more than 19 years of age in its child support calculations. Henderson v. Henderson, 264 Neb. 916, 653 N.W.2d 226 (2002).
This section does not authorize a district court to modify, sua sponte, a final order from which no appeal has been taken. Martin v. Martin, 261 Neb. 125, 621 N.W.2d 511 (2001).
Under certain circumstances, an order that a part of child support payments be held in escrow while an appeal to the Supreme Court is pending is an abuse of discretion. Phelps v. Phelps, 239 Neb. 618, 477 N.W.2d 552 (1991).
A decree in a divorce case, insofar as minor children are concerned, is never final in the sense that it cannot be changed. Bartlett v. Bartlett, 193 Neb. 76, 225 N.W.2d 413 (1975).
The word "support" in this section is not limited to child support and, in fact, applies to spousal support. Furstenfeld v. Pepin, 23 Neb. App. 673, 875 N.W.2d 468 (2016).
A proceeding under sections 42-347 to 42-381 shall be commenced by filing a complaint in the district court. The proceeding may be heard by the county court or the district court as provided in section 25-2740. Summons shall be served upon the other party to the marriage by personal service or in the manner provided in section 25-517.02.
Source: Laws 1972, LB 820, § 6; Laws 1983, LB 447, § 46; Laws 1984, LB 845, § 25; Laws 1996, LB 1296, § 12; Laws 1997, LB 229, § 12; Laws 2004, LB 1207, § 20.
Annotations
A district court had jurisdiction to dissolve a parties' marriage where the plaintiff satisfied procedural due process by complying with the process service requirements for dissolution proceedings under this section and also satisfied Nebraska residency requirements. Metzler v. Metzler, 25 Neb. App. 757, 913 N.W.2d 733 (2018).
Action to modify alimony obligation must satisfy the requirements of this section. Osborn v. Osborn, 4 Neb. App. 802, 550 N.W.2d 58 (1996).
The pleadings required by sections 42-347 to 42-381 shall be governed by the rules of pleading in civil actions promulgated under section 25-801.01. The complaint shall include the following:
(1) The name and address of the plaintiff and his or her attorney, except that a plaintiff who is living in an undisclosed location because of safety concerns is only required to disclose the county and state of his or her residence and, in such case, shall provide an alternative address for the mailing of notice;
(2) The name and address, if known, of the defendant;
(3) The date and place of marriage;
(4) The name and year of birth of each child whose custody or welfare may be affected by the proceedings and whether (a) a parenting plan as provided in the Parenting Act has been developed and (b) child custody, parenting time, visitation, or other access or child support is a contested issue;
(5) If the plaintiff is a party to any other pending action for divorce, separation, or dissolution of marriage, a statement as to where such action is pending;
(6) Reference to any existing restraining orders, protection orders, or criminal no-contact orders regarding any party to the proceedings;
(7) A statement of the relief sought by the plaintiff, including adjustment of custody, property, and support rights; and
(8) An allegation that the marriage is irretrievably broken if the complaint is for dissolution of marriage or an allegation that the two persons who have been legally married shall thereafter live separate and apart if the complaint is for a legal separation.
Source: Laws 1972, LB 820, § 7; Laws 1997, LB 229, § 13; Laws 2004, LB 1207, § 21; Laws 2007, LB221, § 1; Laws 2007, LB554, § 30; Laws 2008, LB1014, § 29; Laws 2012, LB899, § 1.
Cross References
Annotations
The mere pendency of another action does not necessarily ipso facto require that a demurrer be sustained and the second action dismissed. Miller v. Miller, 213 Neb. 219, 328 N.W.2d 210 (1982).
Where a petition for dissolution of marriage was filed in the maiden name of a woman who had never adopted the surname of her husband and the parties were otherwise entitled to a decree of dissolution it was error for the trial court to refuse to enter the decree in the maiden name of the wife. Simmons v. O'Brien, 201 Neb. 778, 272 N.W.2d 273 (1978).
Because the husband's complaint contained each of the allegations required by this section, he stated a claim upon which the district court could grant relief, and the court erred in granting the wife's motion to dismiss for failure to state a claim. Metzler v. Metzler, 25 Neb. App. 757, 913 N.W.2d 733 (2018).
Repealed. Laws 2004, LB 1207, § 49.
No marriage shall be dissolved or legal separation decreed unless the defendant has been properly served with process or entered an appearance in the case.
Source: Laws 1972, LB 820, § 9; Laws 1983, LB 447, § 48; Laws 2004, LB 1207, § 22.
Hearings shall be held in open court upon the oral testimony of witnesses or upon the depositions of such witnesses taken as in other actions. The court may in its discretion close the hearing and may restrict the availability of the evidence or bill of exceptions.
Source: Laws 1972, LB 820, § 10.
Annotations
Notice and hearing required to modify custody of child except where court retained custody in original order. Brandl v. Brandl, 197 Neb. 778, 251 N.W.2d 155 (1977).
This section does not prohibit a trial court from allowing one of the parties, who is imprisoned and not permitted to personally attend, to appear by telephone during a final hearing held in open court upon the oral testimony of witnesses. Conn v. Conn, 13 Neb. App. 472, 695 N.W.2d 674 (2005).
In matters pertaining to dissolution, such as custody, hearings shall be held in open court upon the oral testimony of witnesses or upon the depositions of such witnesses taken as in other actions. Where a modification of custody is concerned, a judicial determination of the best interests of the children must be based on evidence preserved in the record. Burns v. Burns, 2 Neb. App. 795, 514 N.W.2d 848 (1994).
The court may order either party to pay to the clerk of the district court or to the State Disbursement Unit, as provided in section 42-369, a sum of money for the temporary support and maintenance of the other party and minor children if any are affected by the action 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 is made in the complaint or by motion by the plaintiff or by the defendant in a responsive pleading; but no such order shall be entered before three days after notice of hearing has been served on the other party or notice waived. During the pendency of any proceeding under sections 42-347 to 42-381 after the complaint is filed, upon application of either party and if the accompanying affidavit of the party or his or her agent shows to the court that the party is entitled thereto, the court may issue ex parte orders (1) 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, (2) enjoining any party from molesting or disturbing the peace of the other party or any minor children affected by the action, and (3) determining the temporary custody of any minor children of the marriage, except that 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. Ex parte orders issued pursuant to subdivisions (1) and (3) of this section shall remain in force for no more than ten days or until a hearing is held thereon, whichever is earlier. After motion, notice to the party, and hearing, the court may order either party excluded from the premises occupied by the other upon a showing that physical or emotional harm would otherwise result. 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 the court. Any person who knowingly violates such an order after service shall be guilty of a Class II misdemeanor. 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 out the reason therefor, the court shall schedule a hearing within seventy-two hours to determine whether the order regarding the minor children shall remain in force. Section 25-1064 shall not apply to the issuance of ex parte orders pursuant to this section. Any judge of the county court or district court may grant a temporary ex parte order in accordance with this section.
Source: Laws 1972, LB 820, § 11; Laws 1974, LB 1015, § 2; Laws 1983, LB 371, § 1; Laws 1984, LB 276, § 2; Laws 1986, LB 516, § 14; Laws 1988, LB 1030, § 42; Laws 1989, LB 330, § 3; Laws 1996, LB 1296, § 13; Laws 1997, LB 229, § 14; Laws 2000, LB 972, § 8; Laws 2004, LB 1207, § 23; Laws 2008, LB1014, § 30.
Cross References
Annotations
Where husband used moneys out of a joint account after being served with a restraining order, but was not ordered by the court to account for these expenditures which did not appear unusual, his failure to account for his expenditures did not entitle the wife to a return of the money. Blaser v. Blaser, 225 Neb. 104, 402 N.W.2d 875 (1987).
Section 42-1004(1)(d) is more specific than this section on the issue of modification or elimination of temporary spousal support. Edwards v. Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008).
An accounting is not the sole remedy available for a violation of a hypothecation order entered pursuant to this section. Jessen v. Jessen, 5 Neb. App. 914, 567 N.W.2d 612 (1997).
(1) The court may appoint an attorney to protect the interests of any minor children of the parties. Such attorney shall be empowered to make independent investigations and to cause witnesses to appear and testify on matters pertinent to the welfare of the children. The court shall by order fix the fee, including disbursements, for such attorney, which amount shall be taxed as costs and paid by the parties as ordered. If the court finds that the party responsible is indigent, the court may order the county to pay the costs.
(2) Following entry of any decree, the court having jurisdiction over the minor children of the parties may at any time appoint an attorney, as friend of the court, to initiate contempt proceedings for failure of any party to comply with an order of the court directing such party to pay temporary or permanent child support. The county attorney or authorized attorney may be appointed by the court for the purposes provided in this section, in which case the county attorney or authorized attorney shall represent the state.
(3) The clerk of each district court shall maintain records of support orders. The Title IV-D Division of the Department of Health and Human Services shall maintain support order payment records pursuant to section 43-3342.01 and the clerk of each district court shall maintain records of payments received pursuant to sections 42-369 and 43-3342.01. For support orders in all cases issued before September 6, 1991, and for support orders issued or modified on or after September 6, 1991, in cases in which no party has applied for services under Title IV-D of the federal Social Security Act, as amended, each month the Title IV-D Division shall certify all cases in which the support order payment is delinquent in an amount equal to the support due and payable for a one-month period of time. The Title IV-D Division shall provide the case information in electronic format, and upon request in print format, to the judge presiding over domestic relations cases and to the county attorney or authorized attorney. A rebuttable presumption of contempt shall be established if a prima facie showing is made that the court-ordered child or spousal support is delinquent. In cases in which one of the parties receives services under Title IV-D of the federal Social Security Act, as amended, the Title IV-D Division shall certify all such delinquent support order payments to the county attorney or the authorized attorney.
In each case certified, if income withholding has not been implemented it shall be implemented pursuant to the Income Withholding for Child Support Act. If income withholding is not feasible and no other action is pending for the collection of support payments, the court shall appoint an attorney to commence contempt of court proceedings. If the county attorney or authorized attorney consents, he or she may be appointed for such purpose. The contempt proceeding shall be instituted within ten days following appointment, and the case shall be diligently prosecuted to completion. The court shall by order fix the fee, including disbursements, for such attorney, which amount shall be taxed as costs and paid by the parties as ordered. Any fees allowed for the services of any county attorney or authorized attorney shall be paid to the Department of Health and Human Services when there is an assignment of support to the department pursuant to section 43-512.07 or when an application for child support services is on file with a county attorney or authorized attorney. If the court finds the party responsible is indigent, the court may order the county to pay the costs.
(4) If, at the hearing, the person owing child or spousal support is called for examination as an adverse party and such person refuses to answer upon the ground that his or her testimony may be incriminating, the court may, upon the motion of the county attorney or authorized attorney, require the person to answer and produce the evidence. In such a case the evidence produced shall not be admissible in any criminal case against such person nor shall any evidence obtained because of the knowledge gained by such evidence be so admissible.
(5) The court may order access to all revenue information maintained by the Department of Revenue or other agencies concerning the income of persons liable or who pursuant to this section and sections 42-358.08 and 42-821 may be found liable to pay child or spousal support payments.
(6) Any person aggrieved by a determination of the court may appeal such decision to the Court of Appeals.
Source: Laws 1972, LB 820, § 12; Laws 1974, LB 961, § 1; Laws 1975, LB 212, § 1; Laws 1976, LB 926, § 1; Laws 1978, LB 960, § 1; Laws 1985, Second Spec. Sess., LB 7, § 10; Laws 1991, LB 457, § 1; Laws 1991, LB 732, § 101; Laws 1992, LB 1184, § 11; Laws 1994, LB 1224, § 43; Laws 1996, LB 1044, § 99; Laws 1996, LB 1155, § 7; Laws 1997, LB 307, § 16; Laws 2000, LB 972, § 9; Laws 2002, LB 1062, § 2; Laws 2005, LB 396, § 1; Laws 2007, LB296, § 56.
Cross References
Annotations
1. Appointment of guardian ad litem
2. Evidence admissible
3. Miscellaneous
1. Appointment of guardian ad litem
This section authorizes a court to appoint an attorney or guardian ad litem to protect the interests of minor children and allows the attorney or guardian ad litem to recover his or her fees. Mitchell v. French, 267 Neb. 656, 676 N.W.2d 361 (2004).
An attorney appointed under this section is an advocate for the minor child and is not a guardian ad litem. An attorney appointed under this section shall act as attorney for the minor child, but shall not testify in the proceedings. From June 1, 1998, forward, when appointing a guardian ad litem or an attorney to represent the interests of the minor pursuant to this section in forums other than the juvenile court, the appointing court, in the order making the appointment, shall specify whether the person appointed is to act as a guardian ad litem or as an attorney pursuant to this section. One person may not serve in both capacities. Betz v. Betz, 254 Neb. 341, 575 N.W.2d 406 (1998).
Under subsection (1) of this section, the appointment of a guardian ad litem in a marital dissolution proceeding is a matter within the sound discretion of the trial court. Ritter v. Ritter, 234 Neb. 203, 450 N.W.2d 204 (1990).
Appointment of a guardian ad litem is a discretionary matter. Generally, adequate representation by counsel for the respective parties, independent investigative power of the court, and continuing jurisdiction over minors protect the children's interests adequately. Chalupa v. Chalupa, 220 Neb. 704, 371 N.W.2d 706 (1985).
The court has authority to appoint a guardian ad litem to protect the interest of a minor child. Nye v. Nye, 213 Neb. 364, 329 N.W.2d 346 (1983).
When there is adequate representation of both parties to the dissolution, the trial court has made an independent investigation of the children's situation, and the court has continuing jurisdiction over the children, it is not error for the court to deny a request to appoint a guardian ad litem for the children. Deacon v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (1980).
When it appears that minor children in a divorce action may have interests, independent of the parents, in the outcome of the litigation, the district court should ordinarily appoint counsel to represent them. Ford v. Ford, 191 Neb. 548, 216 N.W.2d 176 (1974).
District court may appoint attorney for minor children and limits on its discretion to do so must evolve case by case. Pieck v. Pieck, 190 Neb. 419, 209 N.W.2d 191 (1973).
2. Evidence admissible
Issues of visitation and previous failure to enforce a child support order are not relevant to proceedings under section 42-358, R.R.S.1943, or section 42-364.01, R.R.S.1943. Eliker v. Eliker, 206 Neb. 764, 295 N.W.2d 268 (1980).
In a divorce case, ex parte investigative reports are not evidence, and cannot be the basis for any adjudication. Jorgensen v. Jorgensen, 194 Neb. 271, 231 N.W.2d 360 (1975).
3. Miscellaneous
Subsection (1) of this section permits the district court to order the county to pay attorney fees and expenses only when a responsible party is indigent. White v. White, 296 Neb. 772, 896 N.W.2d 600 (2017).
When an indigence hearing takes place after the appointment of a guardian ad litem and the ordering of fees, a trial court's determination of indigence should depend upon a party's finances at the time of the indigence hearing. White v. White, 293 Neb. 439, 884 N.W.2d 1 (2016).
This section allows for payment of guardian ad litem fees by a county only if a court finds that the party responsible is indigent. Mitchell v. French, 267 Neb. 656, 676 N.W.2d 361 (2004).
This section is applicable to cases that begin as paternity actions in which the only controverted issues are custody and child support. Mitchell v. French, 267 Neb. 656, 676 N.W.2d 361 (2004).
A finding of indigency is a matter within the initial discretion of the trial court, and such a finding will not be set aside on appeal in the absence of an abuse of discretion by the trial court. Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004).
Under subsection (1) of this section, a person is indigent if he or she is unable to pay the guardian ad litem or attorney fees without prejudicing, in a meaningful way, his or her financial ability to provide the necessities of life, such as food, clothing, shelter, medical care, et cetera, for himself or herself or his or her legal dependents. Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004).
A proceeding brought under this section is civil in nature. Eliker v. Eliker, 206 Neb. 764, 295 N.W.2d 268 (1980).
Counsel, appointed for children, participated in trial and appeal, and his fee was taxed to appellant as costs. Hermance v. Hermance, 194 Neb. 720, 235 N.W.2d 231 (1975).
Because subsection (1) of this section designates guardian ad litem fees as "costs," they must be determined by the time of the entry of a final, appealable order. McCaul v. McCaul, 17 Neb. App. 801, 771 N.W.2d 222 (2009).
Under subsection (3) of this section, the clerk of the district court must certify that the court-ordered child support is delinquent in an amount equal to the support due and owing payable for a 1-month period of time and report this amount to the county attorney or authorized attorney. McKibbin v. State, 5 Neb. App. 570, 560 N.W.2d 507 (1997).
The language of subsection (1) of this section requires that the fees and disbursements of an attorney appointed pursuant to subsection (1) "shall" be taxed as costs and paid by the parties as ordered. The county "may" be ordered to pay the amount so taxed as costs, but only upon a finding that the party responsible is indigent. Brackhan v. Brackhan, 3 Neb. App. 143, 524 N.W.2d 74 (1994).
Records of delinquencies in support order payments shall be kept by the Title IV-D Division of the Department of Health and Human Services or by the clerks of the district courts pursuant to their responsibilities under law.
Source: Laws 1975, LB 212, § 3; Laws 2000, LB 972, § 10; Laws 2007, LB296, § 57.
(1) All delinquent child support payments, spousal support payments, and medical support payments shall draw interest at the rate specified in section 45-103 in effect on the date of the most recent order or decree. Such interest shall be computed as simple interest.
(2) All child support payments, spousal support payments, and medical support payments shall become delinquent the day after they are due and owing, except that no obligor whose support payments are automatically withheld from his or her paycheck shall be regarded or reported as being delinquent or in arrears if (a) any delinquency or arrearage is solely caused by a disparity between the schedule of the obligor's regular pay dates and the scheduled date the support payment is due, (b) the total amount of support payments to be withheld from the paychecks of the obligor and the amount ordered by the support order are the same on an annual basis, and (c) the automatic deductions for support payments are continuous and occurring. Interest shall not accrue until thirty days after such payments are delinquent.
(3) The court shall order the determination of the amount of interest due, and such interest shall be payable in the same manner as the support payments upon which the interest accrues subject to subsection (2) of this section or unless it is waived by agreement of the parties. The Title IV-D Division of the Department of Health and Human Services shall compute interest and identify delinquencies pursuant to this section on the payments received by the State Disbursement Unit pursuant to section 42-369. The Title IV-D Division shall provide the case information in electronic format, and upon request in print format, to the judge presiding over domestic relations cases and to the county attorney or authorized attorney.
(4) Support order payments shall be credited in the following manner:
(a) First, to the payments due for the current month in the following order: Child support payments, then spousal support payments, and lastly medical support payments;
(b) Second, toward any payment arrearage owing, in the following order: Child support payment arrearage, then spousal support payment arrearage, and lastly medical support payment arrearage; and
(c) Third, toward the interest on any payment arrearage, in the following order: Child support payment arrearage interest, then spousal support payment arrearage interest, and lastly medical support payment arrearage interest.
(5) Interest which may have accrued prior to September 6, 1991, shall not be affected or altered by changes to this section which take effect on such date. All delinquent support order payments and all decrees entered prior to such date shall draw interest at the effective rate as prescribed by this section commencing as of such date.
Source: Laws 1975, LB 212, § 4; Laws 1981, LB 167, § 31; Laws 1983, LB 371, § 2; Laws 1984, LB 845, § 26; Laws 1985, Second Spec. Sess., LB 7, § 11; Laws 1987, LB 569, § 1; Laws 1991, LB 457, § 2; Laws 1997, LB 18, § 1; Laws 2000, LB 972, § 11; Laws 2005, LB 396, § 2; Laws 2007, LB296, § 58; Laws 2009, LB288, § 4.
Annotations
The district court erred, as a matter of law, in failing to account for the effective date of the amended statute as triggering a change in the applicable interest rate. Prior to September 6, 1991, interest on delinquent child support payments accrues at a rate determined by section 45-104.01, and as of September 6, 1991, interest on delinquent child support payments accrues at a rate determined by section 45-103. Welch v. Welch, 246 Neb. 435, 519 N.W.2d 262 (1994).
The district court did not have discretion to reduce the amount of accrued interest on a father's child support arrearage. Ybarra v. Ybarra, 28 Neb. App. 216, 943 N.W.2d 447 (2020).
Any person found guilty of contempt of court for failure to pay permanent child support payments and imprisoned therefor shall be committed to a court-supervised work release program. Ninety percent of earnings realized from such program shall be applied to payment of delinquencies in support payments minus appropriate deductions for the cost of work release.
Source: Laws 1975, LB 212, § 5.
Remarriage of the person entitled to collect under a permanent child support decree shall not work to cut off delinquent payments due under such decree.
Source: Laws 1975, LB 212, § 6.
After a hearing on the issue, the court may order immediate implementation of income withholding pursuant to the Income Withholding for Child Support Act or require the posting of a bond at the time that a temporary or permanent child support or spousal support decree is issued to insure performance of the decree.
Source: Laws 1975, LB 212, § 7; Laws 1985, Second Spec. Sess., LB 7, § 12.
Cross References
A lien upon the property of one who is delinquent in permanent child or spousal support payments may be instituted and enforced according to the terms of section 42-371.
Source: Laws 1975, LB 212, § 8; Laws 1985, Second Spec. Sess., LB 7, § 13.
Any clerk of the district court who fails to perform his or her duties under sections 42-358 to 42-358.07 or the Income Withholding for Child Support Act shall be removed from office after conviction for such offense.
Source: Laws 1975, LB 212, § 9; Laws 1985, Second Spec. Sess., LB 7, § 14.
Cross References
Notwithstanding any other provision of law regarding the confidentiality of records and when not prohibited by the federal Privacy Act of 1974, Public Law 93-579, as amended, each department and agency of state, county, and city government and each employer or other payor as defined in section 43-1709 shall, upon request, furnish to any court-appointed individuals, the county attorney, any authorized attorney, or the Department of Health and Human Services an absent parent's address, social security number, amount of income, health insurance information, and employer's name and address for the exclusive purpose of establishing and collecting child or spousal support. Information so obtained shall be used for no other purpose. This section may be enforced by filing a court action.
Source: Laws 1976, LB 926, § 2; Laws 1985, Second Spec. Sess., LB 7, § 15; Laws 1994, LB 1224, § 44; Laws 1996, LB 1044, § 100; Laws 1996, LB 1296, § 14; Laws 1997, LB 229, § 15; Laws 1997, LB 307, § 17.
Repealed. Laws 1983, LB 417, § 2.
Applications for spousal support or alimony shall be accompanied by a statement of the applicant's financial condition and, to the best of his or her knowledge, a statement of the other party's financial condition. Such other party may file his or her statement, if he or she so desires, and shall do so if ordered by the court. Statements shall be under oath and shall show income from salary or other sources, assets, debts and payments thereon, living expenses, and other relevant information. Required forms for financial statements may be furnished by the court.
Source: Laws 1972, LB 820, § 13; Laws 2007, LB554, § 31; Laws 2008, LB1014, § 31.
Annotations
The filing of a financial statement as required under this section is waived if the parties proceed without objection to hearing and trial without such filing. Danielson v. Danielson, 204 Neb. 776, 285 N.W.2d 494 (1979).
No decree shall be entered under sections 42-347 to 42-381 unless the court finds that every reasonable effort to effect reconciliation has been made. Proceedings filed pursuant to sections 42-347 to 42-381 shall be subject to transfer to a conciliation court pursuant to section 42-822 or 42-823, in counties where such a court has been established. In counties having no conciliation court, the court hearing proceedings under sections 42-347 to 42-381 may refer the parties to qualified marriage counselors or family service agencies, or other persons or agencies determined by the court to be qualified to provide conciliation services, if the court finds that there appears to be some reasonable possibility of a reconciliation being effected. In no case shall the court order marriage counseling upon the request of only one of the parties to the dissolution or his or her attorney. If both parties agree to attend counseling but do not agree on an assignment of the costs of such counseling, the court, after receiving an application for such costs and upon a showing that the parties cannot agree on an assignment of such costs, shall assign such costs in a temporary or permanent order.
Source: Laws 1972, LB 820, § 14; Laws 1984, LB 845, § 27; Laws 1997, LB 229, § 16.
Annotations
It is only when there exists a reasonable possibility of reconciliation that the statutes require efforts be made to effect it. Condreay v. Condreay, 190 Neb. 513, 209 N.W.2d 357 (1973).
(1) If both of the parties state under oath or affirmation that the marriage is irretrievably broken, or one of the parties so states and the other does not deny it, the court, after hearing, shall make a finding whether the marriage is irretrievably broken.
(2) If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the complaint and the prospect of reconciliation, and shall make a finding whether the marriage is irretrievably broken.
(3) Sixty days or more after perfection of service of process, the court may enter a decree of dissolution without a hearing if:
(a) Both parties waive the requirement of the hearing and the court has sufficient basis to make a finding that it has subject matter jurisdiction over the dissolution action and personal jurisdiction over both parties; and
(b) Both parties have certified in writing that the marriage is irretrievably broken, both parties have certified that they have made every reasonable effort to effect reconciliation, all documents required by the court and by statute have been filed, and the parties have entered into a written agreement, signed by both parties under oath, resolving all issues presented by the pleadings in their dissolution action.
Source: Laws 1972, LB 820, § 15; Laws 2004, LB 1207, § 24; Laws 2011, LB669, § 25.
Annotations
It was not an abuse of discretion for the trial court to deny a motion to vacate its order finding the marriage irretrievably broken where the parties had reached a settlement agreement, but one party refused to sign the agreement until she was able to take possession of certain property. Kibler v. Kibler, 287 Neb. 1027, 845 N.W.2d 585 (2014).
Pursuant to subsection (1) of this section, dissolutions of marriage require that a hearing be conducted in open court and that oral testimony of witnesses or depositions of witnesses be received into evidence; relying upon pleadings alone is insufficient. Brunges v. Brunges, 255 Neb. 837, 587 N.W.2d 554 (1998).
A court must be presented with some form of evidence, be it oral testimony or depositions, in order to make a meaningful finding whether a marriage is irretrievably broken. Wilson v. Wilson, 238 Neb. 219, 469 N.W.2d 750 (1991).
In a case where the evidence was undisputed that the parties had not lived together for a long period of time, the trial court was correct in finding that the parties' marriage was irretrievably broken. Witcig v. Witcig, 206 Neb. 307, 292 N.W.2d 788 (1980).
The finding that marriage was irretrievably broken based upon criminal history of defendant and plaintiff's categorical refusal to effect reconciliation was not unreasonable. Condreay v. Condreay, 190 Neb. 513, 209 N.W.2d 357 (1973).
In a legal separation proceeding:
(1) If both of the parties state under oath or affirmation that they shall thereafter live separate and apart, or one of the parties so states and the other does not deny it, the court, after hearing, shall make a finding whether the legal separation should be granted and if so may enter a decree of legal separation;
(2) If one of the parties has denied under oath or affirmation that they will thereafter live separate and apart, the court shall, after hearing, consider all relevant factors, including the circumstances that gave rise to the filing of the complaint and the prospect of reconciliation, and shall make a finding whether the legal separation should be granted and if so may enter a decree of legal separation; or
(3) Sixty days or more after perfection of service of process, the court may enter a decree of legal separation without a hearing if:
(a) Both parties waive the requirement of the hearing and the court has sufficient basis to make a finding that it has subject matter jurisdiction over the legal separation proceeding and personal jurisdiction over both parties; and
(b) Both parties have certified in writing that they shall thereafter live separate and apart, both parties have certified that they have made every reasonable effort to effect reconciliation, all documents required by the court and by statute have been filed, and the parties have entered into a written agreement, signed by both parties under oath, resolving all issues presented by the pleadings in their legal separation proceeding.
Source: Laws 2012, LB899, § 2.
Annotations
The written certification described in this section is not a jurisdictional requirement that, if not met, would prevent a court from having subject matter jurisdiction over separation proceedings held without an evidentiary hearing. Benda v. Sole, 319 Neb. 745, 25 N.W.3d 68 (2025).
When the pleadings or evidence in any action pursuant to sections 42-347 to 42-381 indicate that either spouse is mentally ill, a guardian ad litem or an attorney, or both, shall be appointed to represent the interests of such spouse. Such guardian's fee or attorney's fee, or both, shall be taxed as costs when allowed by the court and shall be paid by the county if the parties are unable to do so. When a marriage is dissolved and the evidence indicates that either spouse is mentally ill, the court may, at the time of dissolving the marriage or at any time thereafter, make such order for the support and maintenance of such mentally ill person as it may deem necessary and proper, having due regard to the property and income of the parties, and the court may require the party ordered to provide support and maintenance to file a bond or otherwise give security for such support. Such an order for support may be entered upon the application of the guardian or guardian ad litem or of any person, county, municipality, or institution charged with the support of such mentally ill person. The order for support may, if necessary, be revised from time to time on like application.
Source: Laws 1972, LB 820, § 16; Laws 1997, LB 229, § 17; Laws 1999, LB 24, § 1.
Annotations
The trial court did not abuse its discretion in awarding continuing monthly spousal support in favor of the wife until either party died or the wife remarried or was no longer mentally ill, even though the spousal-support obligation might place the husband at or near his net income level; the wife was in an even more difficult financial position given that she had no ability to work. Onstot v. Onstot, 298 Neb. 897, 906 N.W.2d 300 (2018).
A former wife was not entitled to have her marriage dissolution decree vacated for the trial court's failure to appoint a guardian ad litem for her, as a mentally ill party, where the wife was represented by counsel throughout the dissolution proceedings, the wife did not appeal from decree, the wife did not allege that she could not communicate effectively with her counsel, and the record did not show that her interests were adversely affected by the fact that the guardian ad litem was not appointed. Hartman v. Hartman, 265 Neb. 515, 657 N.W.2d 646 (2003).
Statute contemplates that the guardian ad litem or one charged with support of a mentally ill spouse apply for a support order. Reasonableness is the test governing awards of support and maintenance. Awards are reviewed de novo in Supreme Court and affirmed absent an abuse of discretion. Payments continue until spouse recovers or remarries. Black v. Black, 223 Neb. 203, 388 N.W.2d 815 (1986).
Where the evidence does not clearly and affirmatively establish that a spouse is suffering from a mental illness or that such mental illness affects the spouse's ability to work, it is not an abuse of discretion to deny support and maintenance for a mentally ill spouse. Ginn v. Ginn, 17 Neb. App. 451, 764 N.W.2d 889 (2009).
Although support and maintenance to a mentally ill spouse in some respects parallels alimony, the two are not the same in all respects. The condition which triggers the support and maintenance to be paid under this section is the mental illness; thus, the payment of such support and maintenance should continue so long as, and only so long as, the mental illness continues or the mentally ill individual acquires another spouse. Kearney v. Kearney, 11 Neb. App. 88, 644 N.W.2d 171 (2002).
Reasonableness is the ultimate criterion to be applied in testing whether support and maintenance is to be awarded to a mentally ill spouse under the provisions of this section and, if so, the amount and duration thereof. The support and maintenance to be awarded under this section is a matter initially entrusted to the discretion of the trial judge, which award, on appeal, is reviewed de novo on the record and affirmed in the absence of an abuse of that discretion. Kearney v. Kearney, 11 Neb. App. 88, 644 N.W.2d 171 (2002).
This section empowers the court to order the payment of such support and maintenance to a mentally ill spouse as it may deem necessary and proper, giving due consideration to the property and income of the parties. Kearney v. Kearney, 11 Neb. App. 88, 644 N.W.2d 171 (2002).
No suit for divorce shall be heard or tried until sixty days after perfection of service of process, at which time the suit may be heard or tried and a decree may be entered.
Source: Laws 1972, LB 820, § 17; Laws 1974, LB 1015, § 3; Laws 1989, LB 23, § 1.
Annotations
The waiting period for obtaining a divorce is a jurisdictional requirement. A divorce decree entered after expiration of the 60-day waiting period but based upon evidence adduced at a hearing held prior to expiration of the waiting period is null and void. Wymore v. Wymore, 239 Neb. 940, 479 N.W.2d 778 (1992).
If no attempt is made to have an appellate court review the decree within six months after it is entered, the decree becomes final. As such, it is res judicata as to the rights of the parties. Neither what the parties thought the judge meant nor what the judge thought he or she meant, after time for appeal has passed, is of any relevance. What the decree, as it became final, means as a matter of law as determined from the four corners of the decree is what is relevant. Neujahr v. Neujahr, 223 Neb. 722, 393 N.W.2d 47 (1986).
(1)(a) In an action under Chapter 42 involving child support, child custody, parenting time, visitation, or other access, the parties and their counsel, if represented, shall develop a parenting plan as provided in the Parenting Act. If the parties and counsel do not develop a parenting plan, the complaint shall so indicate as provided in section 42-353 and the case shall be referred to mediation or specialized alternative dispute resolution as provided in the Parenting Act. For good cause shown and (i) when both parents agree and such parental agreement is bona fide and not asserted to avoid the purposes of the Parenting Act, or (ii) when mediation or specialized alternative dispute resolution is not possible without undue delay or hardship to either parent, the mediation or specialized alternative dispute resolution requirement may be waived by the court. In such a case where waiver of the mediation or specialized alternative dispute resolution is sought, the court shall hold an evidentiary hearing and the burden of proof for the party or parties seeking waiver is by clear and convincing evidence.
(b) The decree in an action involving the custody of a minor child shall include the determination of legal custody and physical custody based upon the best interests of the child, as defined in the Parenting Act, and child support. Such determinations shall be made by incorporation into the decree of (i) a parenting plan developed by the parties, if approved by the court, or (ii) a parenting plan developed by the court based upon evidence produced after a hearing in open court if no parenting plan is developed by the parties or the plan developed by the parties is not approved by the court. The decree shall conform to the Parenting Act.
(c) The social security number of each parent and the minor child shall be furnished to the clerk of the district court but shall not be disclosed or considered a public record.
(2) In determining legal custody or physical custody, the court shall not give preference to either parent based on the sex or disability of the parent and, except as provided in section 43-2933, no presumption shall exist that either parent is more fit or suitable than the other. Custody shall be determined on the basis of the best interests of the child, as defined in the Parenting Act. Unless parental rights are terminated, both parents shall continue to have the rights stated in section 42-381.
(3) Custody of a minor child may be placed with both parents on a joint legal custody or joint physical custody basis, or both, (a) when both parents agree to such an arrangement in the parenting plan and the court determines that such an arrangement is in the best interests of the child or (b) if the court specifically finds, after a hearing in open court, that joint physical custody or joint legal custody, or both, is in the best interests of the minor child regardless of any parental agreement or consent.
(4) In determining the amount of child support to be paid by a parent, the court shall consider the earning capacity of each parent and the guidelines provided by the Supreme Court pursuant to section 42-364.16 for the establishment of child support obligations. Upon application, hearing, and presentation of evidence of an abusive disregard of the use of child support money or cash medical support paid by one party to the other, the court may require the party receiving such payment to file a verified report with the court, as often as the court requires, stating the manner in which child support money or cash medical support is used. Child support money or cash medical support paid to the party having physical custody of the minor child shall be the property of such party except as provided in section 43-512.07. The clerk of the district court shall maintain a record of all decrees and orders in which the payment of child support, cash medical support, or spousal support has been ordered, whether ordered by a district court, county court, separate juvenile court, or county court sitting as a juvenile court. Orders for child support or cash medical support in cases in which a party has applied for services under Title IV-D of the federal Social Security Act, as amended, shall be reviewed as provided in sections 43-512.12 to 43-512.18.
(5) Whenever termination of parental rights is placed in issue the court shall transfer jurisdiction to a juvenile court established pursuant to the Nebraska Juvenile Code unless a showing is made that the county court or district court is a more appropriate forum. In making such determination, the court may consider such factors as cost to the parties, undue delay, congestion of trial dockets, and relative resources available for investigative and supervisory assistance. A determination that the county court or district court is a more appropriate forum shall not be a final order for the purpose of enabling an appeal. If no such transfer is made, the court shall conduct the termination of parental rights proceeding as provided in the Nebraska Juvenile Code.
(6) Modification proceedings relating to support, custody, parenting time, visitation, other access, or removal of children from the jurisdiction of the court shall be commenced by filing a complaint to modify. Modification of a parenting plan is governed by the Parenting Act. Proceedings to modify a parenting plan shall be commenced by filing a complaint to modify. Such actions shall be referred to mediation or specialized alternative dispute resolution as provided in the Parenting Act. For good cause shown and (a) when both parents agree and such parental agreement is bona fide and not asserted to avoid the purposes of the Parenting Act, or (b) when mediation or specialized alternative dispute resolution is not possible without undue delay or hardship to either parent, the mediation or specialized alternative dispute resolution requirement may be waived by the court. In such a case where waiver of the mediation or specialized alternative dispute resolution is sought, the court shall hold an evidentiary hearing and the burden of proof for the party or parties seeking waiver is by clear and convincing evidence. Service of process and other procedure shall comply with the requirements for a dissolution action.
(7) In any proceeding under this section relating to custody of a child of school age, certified copies of school records relating to attendance and academic progress of such child are admissible in evidence.
(8) For purposes of this section, disability has the same meaning as in 42 U.S.C. 12102, as such section existed on January 1, 2018.
Source: Laws 1983, LB 138, § 1; Laws 1985, LB 612, § 1; Laws 1985, Second Spec. Sess., LB 7, § 16; Laws 1991, LB 457, § 3; Laws 1991, LB 715, § 1; Laws 1993, LB 629, § 21; Laws 1994, LB 490, § 1; Laws 1996, LB 1296, § 15; Laws 1997, LB 752, § 96; Laws 2004, LB 1207, § 25; Laws 2006, LB 1113, § 35; Laws 2007, LB554, § 32; Laws 2008, LB1014, § 32; Laws 2009, LB288, § 5; Laws 2010, LB901, § 1; Laws 2013, LB561, § 5; Laws 2018, LB193, § 76; Laws 2018, LB845, § 17.
Cross References
Annotations
1. Custody of children
2. Termination of parental rights
3. Child support
4. Change in custody
5. Visitation
6. Special proceeding
7. Miscellaneous
1. Custody of children
Pursuant to subdivision (1)(b) of this section, a court must determine physical custody based upon the best interests of a child and such determination shall be made by incorporating (i) a parenting plan developed by the parties, if approved by the court, or (ii) a parenting plan developed by the court based upon evidence produced after a hearing in open court if no parenting plan is developed by the parties and approved by the court. Blank v. Blank, 303 Neb. 602, 930 N.W.2d 523 (2019).
Pursuant to subsection (3) of this section, a joint physical custody award is allowed if (a) both parents agree to such an arrangement in the parenting plan and the court determines that such an arrangement is in the best interests of the child or (b) the court specifically finds, after a hearing in open court, that joint physical custody or joint legal custody, or both, is in the best interests of the minor child regardless of any parental agreement or consent. Blank v. Blank, 303 Neb. 602, 930 N.W.2d 523 (2019).
Pursuant to subsection (3) of this section, a trial court's decision to award joint legal or physical custody can be made without parental agreement or consent so long as it is in the child's best interests. Blank v. Blank, 303 Neb. 602, 930 N.W.2d 523 (2019).
In an action for dissolution of marriage involving the custody of minor children, the court is required to make a determination of legal and physical custody based upon the children's best interests. Such determinations shall be made by incorporation into the decree of a parenting plan, developed either by the parties as approved by the court or by the court after an evidentiary hearing. Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019).
Although joint physical custody generally should be reserved for those cases where the parties can communicate and cooperate with one another, a court may order joint custody in the absence of parental agreement if, after a hearing in open court, it finds that such custody is in the child's best interests. Leners v. Leners, 302 Neb. 904, 925 N.W.2d 704 (2019).
A court is required to devise a parenting plan and to consider joint legal and physical custody, but the court is not required to grant equal parenting time to the parents if such is not in the child's best interests. Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009).
A district court abuses its discretion to order joint custody when it fails to specifically find that joint physical custody is in the child's best interests as required by this section. Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).
A trial court's authority under subsection (5) of this section to order joint physical custody when the parties have not requested it must be exercised in a manner consistent with due process requirements. Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).
The factual inquiry necessary to impose joint physical custody is substantially different from that required for making a sole custody determination. Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).
When a trial court determines at a general custody hearing that joint physical custody is, or may be, in a child's best interests, but neither party has requested this custody arrangement, the court must give the parties an opportunity to present evidence on the issue before imposing joint custody. Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007).
This section mandates that custody of minor children be determined on the basis of their best interests. In determining a child's best interests under this section, courts may consider factors such as general considerations of moral fitness of the child's parents, including the parents' sexual conduct; respective environments offered by each parent; the emotional relationship between child and parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; parental capacity to provide physical care and satisfy educational needs of the child; the child's preferential desire regarding custody if the child is of sufficient age of comprehension regardless of chronological age, and when such child's preference for custody is based on sound reasons; and the general health, welfare, and social behavior of the child. In addition, this section requires courts to consider credible evidence of abuse inflicted on any family or household member as one of the factors in its custody determination. Davidson v. Davidson, 254 Neb. 357, 576 N.W.2d 779 (1998).
In the absence of a contrary statutory provision, in a child custody controversy between a biological or adoptive parent and one who is neither biological nor an adoptive parent of the child involved in the controversy, a fit biological or adoptive parent has a superior right to custody of the child. Stuhr v. Stuhr, 240 Neb. 239, 481 N.W.2d 212 (1992).
When a court retains legal custody of a child pursuant to this section, the question of whether to change physical custody is determined by the best interests of the child without the necessity of showing any change of circumstances otherwise required for a change in legal custody of the child. Grindle v. Grindle, 237 Neb. 302, 465 N.W.2d 749 (1991).
An inquiry regarding "the best interests of the children" includes, but is not limited to, a consideration of the relationship of the children to each parent and the general health, welfare, and social behavior of the children; the Supreme Court also looks to the moral fitness of the parents, including their sexual conduct; the respective environments each offers; the emotional relationship between the child and the parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; and the capacity of each parent to provide physical care and to satisfy the needs of the child. McDougall v. McDougall, 236 Neb. 873, 464 N.W.2d 189 (1991).
A parent's status as the primary caretaker is an important factor to be considered when determining the custody of a child. However, it is not determinative in a child custody proceeding and is just one of several factors set forth in this section. Applegate v. Applegate, 236 Neb. 418, 461 N.W.2d 419 (1990).
As a general rule, a custodial parent in a marital dissolution proceeding may determine the nature and extent of the education for a child unless there is an affirmative showing that the custodial parent's decision has injured or harmed, or will jeopardize, the child's safety, well-being, or health, whether physical or mental. Von Tersch v. Von Tersch, 235 Neb. 263, 455 N.W.2d 130 (1990).
Under subsection (1) of this section, when custody of a minor child is an issue in a proceeding to dissolve the marriage of the child's parents, child custody is determined by parental fitness and the child's best interests; child custody is denied to an unfit parent or a fit parent when the best interests of the child require such denial of custody. Parental unfitness means a personal deficiency or incapacity which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and which has caused, or probably will result in, detriment to a child's well-being. Ritter v. Ritter, 234 Neb. 203, 450 N.W.2d 204 (1990).
In determining a child's best interests under subsection (1) of this section, the court may consider factors such as general considerations of moral fitness of the child's parents, including the parents' sexual conduct; respective environments offered by each parent; the emotional relationship between a child and parents; the age, sex, and health of the child and parents; the effect on a child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; parental capacity to provide physical care and satisfy educational needs of the child; the child's preferential desire regarding custody if the child is of sufficient age of comprehension regardless of chronological age, and when such child's preference is based on sound reasons; and the general health, welfare, and social behavior of the child. Miles v. Miles, 231 Neb. 782, 438 N.W.2d 139 (1989).
The "tender years" doctrine is no longer controlling in child custody matters in light of subdivision (2) of this section. Vance v. Vance, 231 Neb. 334, 436 N.W.2d 177 (1989).
If a parent is fit to have custody of a child involved in a dissolution proceeding, a court's acquired and retained legal custody of such child should be a rare disposition warranted only in the extraordinary situation where the court lacks adequate information concerning the best interests of the child in relation to the custody question. Ensrud v. Ensrud, 230 Neb. 720, 433 N.W.2d 192 (1988).
Parental agreement is a prerequisite for joint custody pursuant to subsection (3) of this section. Ensrud v. Ensrud, 230 Neb. 720, 433 N.W.2d 192 (1988).
When a court has retained legal custody of a child pursuant to this section, a question whether to change physical custody is determined by the best interests of the child without the necessity of showing any change of circumstances otherwise required for a change in legal custody of the child. Clark v. Clark, 228 Neb. 440, 422 N.W.2d 793 (1988); Christen v. Christen, 228 Neb. 268, 422 N.W.2d 92 (1988).
The district court may maintain legal custody of minor children, while awarding physical custody to a parent or other party. Grindle v. Grindle, 226 Neb. 807, 415 N.W.2d 150 (1987); Peterson v. Peterson, 224 Neb. 557, 399 N.W.2d 792 (1987).
Joint custody is not favored by the courts of this state and will be reserved for only the rarest of cases. Wilson v. Wilson, 224 Neb. 589, 399 N.W.2d 802 (1987).
This section does not require that a court derive a minor child's wishes only from the child's testimony, as opposed to evidence from some source other than the child's testimony which adequately establishes the child's desires and wishes regarding custody and visitation. Smith v. Smith, 222 Neb. 752, 386 N.W.2d 873 (1986).
Although former subsection (3) of this section permits joint custody, such an award is not favored and must be reserved for the most rare cases. Korf v. Korf, 221 Neb. 484, 378 N.W.2d 173 (1985).
The best interests of the child include, but are not limited to, the general health, welfare, and social behavior of the child. Mettenbrink v. Mettenbrink, 220 Neb. 650, 371 N.W.2d 310 (1985).
In order for error to be predicated upon the district court's failure to interview children as to their custody preference, an offer of proof is necessary. Krohn v. Krohn, 217 Neb. 158, 347 N.W.2d 869 (1984).
The polar star by which all child custody determinations must be guided is the best interests and welfare of the child. Moeller v. Moeller, 215 Neb. 360, 338 N.W.2d 749 (1983).
Under the facts of this case, the best interests of the children required approval of an application by the custodial parent to remove the minor children to the State of Louisiana. Gottschall v. Gottschall, 210 Neb. 679, 316 N.W.2d 610 (1982).
Where the issue of child custody is involved, both the mother and father have an equal right to custody, and the court shall not give preference to either parent on the basis of the sex of the parent. Although the courts should preserve an attitude of impartiality between religions and will not disqualify a parent solely because of his or her religious beliefs, the court does have a duty to consider whether such beliefs threaten the health and well-being of the child, and it is proper for the court to examine the impact of the parent's beliefs on the child. Burnham v. Burnham, 208 Neb. 498, 304 N.W.2d 58 (1981).
Under section 42-364(2), R.R.S.1943, neither parent is presumed to be more fit than the other to have custody of the parties' minor children. Kringel v. Kringel, 207 Neb. 241, 298 N.W.2d 150 (1980).
The right of a parent to the custody of his minor child is not lightly to be set aside in favor of more distant relatives or unrelated parties, and the courts may not deprive a parent of such custody unless he is shown to be unfit or to have forfeited his superior right to such custody. Nielsen v. Nielsen, 207 Neb. 141, 296 N.W.2d 483 (1980).
The trial court was correct in finding that the best interests of the child required placing custody with his grandmother rather than with either parent. Whitlatch v. Whitlatch, 206 Neb. 527, 293 N.W.2d 856 (1980).
The tender age of the child is a factor to consider in a child custody dispute, however, there is no presumption of fitness based on sex of the parent. Turner v. Turner, 205 Neb. 6, 286 N.W.2d 100 (1979).
A decree placing legal custody of a minor child in the court with possession in one of the parents is not required to state specific provisions for monitoring that possession. Berry v. Berry, 202 Neb. 540, 276 N.W.2d 200 (1979).
An award of custody in a dissolution proceeding will not be upheld when the evidence is insufficient to show the requirements of the best interest of the child. Lautenschlager v. Lautenschlager, 201 Neb. 741, 272 N.W.2d 40 (1978).
Personal observations by the court are insufficient to support an award of custody in a dissolution proceeding in the absence of evidence establishing the best interest of the child. Lautenschlager v. Lautenschlager, 201 Neb. 741, 272 N.W.2d 40 (1978).
When the trial court disapproves a stipulation for custody or support in a dissolution proceeding, an opportunity should be given to the parties to secure and to present evidence relevant to a complete reexamination of the question of custody and the best interest of the child if such evidence has not previously been presented to the court. Lautenschlager v. Lautenschlager, 201 Neb. 741, 272 N.W.2d 40 (1978).
Where custody of the child is in issue, a comparative standard of fitness of each parent is the proper test, and custody shall be determined by the best interests of the child. Long v. Long, 200 Neb. 405, 263 N.W.2d 825 (1978).
In a custody dispute over twelve and fourteen year old siblings, no preference exists favoring the fitness of either parent, and where both are qualified, the court (1) favors leaving children together where possible, and (2) considers the children's expressed parental preference. Boroff v. Boroff, 197 Neb. 641, 250 N.W.2d 613 (1977).
Under the facts in this case, the best interests of the child appear to be served by the more stable situation in the father's home. Peterson v. Peterson, 196 Neb. 328, 243 N.W.2d 51 (1976).
Under ordinary circumstances, neither parent has superior right over the other to custody of minor children. Knight v. Knight, 196 Neb. 63, 241 N.W.2d 360 (1976).
Each parent of minor children born in lawful wedlock, or lawfully adopted, has an equal and joint right to their custody. Young v. Young, 195 Neb. 163, 237 N.W.2d 135 (1976).
Adultery of party is not necessarily determinative of who shall be awarded custody of children. Lockard v. Lockard, 193 Neb. 400, 227 N.W.2d 581 (1975).
The court may place custody of minor children in the court in order to facilitate judicial supervision and summary power to act swiftly in the best interests of the children. Bartlett v. Bartlett, 193 Neb. 76, 225 N.W.2d 413 (1975).
The ultimate standard is that custody and visitation of minor children shall be determined on the basis of their best interests and considerations of public policy do not, in all cases, prevent the splitting of custody between the parents upon divorce. Braeman v. Braeman, 192 Neb. 510, 222 N.W.2d 811 (1974).
Under the no fault divorce statute, the father and mother of minor children have an equal and joint right to their custody and control, and while the father has the primary responsibility to support his children, the court has the responsibility of adjusting the equities between the parties. Kockrow v. Kockrow, 191 Neb. 657, 217 N.W.2d 89 (1974).
In awarding custody of children upon divorce, the paramount consideration is the best interests and welfare of the children. Christensen v. Christensen, 191 Neb. 355, 215 N.W.2d 111 (1974); Schuller v. Schuller, 191 Neb. 266, 214 N.W.2d 617 (1974).
The best interests and welfare of children is paramount in custody cases and the court may place the children in its custody if continuance thereof so requires. Broadstone v. Broadstone, 190 Neb. 299, 207 N.W.2d 682 (1973).
The district court did not abuse its discretion by denying joint legal custody when the parties did not communicate and the mother thwarted any meaningful and appropriate contact between the father and the child. Kashyap v. Kashyap, 26 Neb. App. 511, 921 N.W.2d 835 (2018).
The requirement in this section that a court make a specific finding of best interests before awarding joint custody does not apply in paternity actions where the parties were never married. Aguilar v. Schulte, 22 Neb. App. 80, 848 N.W.2d 644 (2014).
Subsection (3)(b) of this section requires that in dissolution cases, if the parties do not agree to joint custody in a parenting plan, the trial court can award joint custody if it specifically finds, after a hearing in open court, that it is in the best interests of the child. Hill v. Hill, 20 Neb. App. 528, 827 N.W.2d 304 (2013).
Although there was no evidence that the mother was currently engaged in abusive behaviors or an abusive relationship, the trial court acted within its discretion in finding that the father's custody was in the best interests of the child based on the mother's history of domestic violence, the previous removal of a child, and the mother's questionable rehabilitation. State on behalf of Keegan M. v. Joshua M., 20 Neb. App. 411, 824 N.W.2d 383 (2012).
Fundamental fairness requires that when a trial court determines at a general custody hearing that joint legal custody is, or may be, in a child's best interests, but neither party has requested this custody arrangement, the court must give the parties an opportunity to present evidence on the issue before imposing joint legal custody. Jessen v. Line, 16 Neb. App. 197, 742 N.W.2d 30 (2007).
There is no presumption in favor of joint custody, and joint custody remains disfavored to the extent that if both parties do not agree, the court can award joint custody only if it holds a hearing and makes the required finding. Spence v. Bush, 13 Neb. App. 890, 703 N.W.2d 606 (2005).
Regarding custody arrangements, the preference of a mature, responsible, intelligent minor child regarding his or her custody is a factor to be given consideration, but it is not controlling. Adams v. Adams, 13 Neb. App. 276, 691 N.W.2d 541 (2005).
Subsection (5) of this section clearly gives the trial court the authority to order joint custody, even where one of the parents refuses to consent, if the court holds a hearing and specifically finds that joint custody is in the child's best interests. Kay v. Ludwig, 12 Neb. App. 868, 686 N.W.2d 619 (2004).
In determining a child's best interests under this section, courts may consider factors such as general considerations of moral fitness of the child's parents, including the parents' sexual conduct; respective environments offered by each parent; the emotional relationship between the child and parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; parental capacity to provide physical care and satisfy educational needs of the child; the child's preferential desire regarding custody if the child is of sufficient age of comprehension regardless of chronological age, and when such child's preference for custody is based on sound reasons; and the general health, welfare, and social behavior of the child. Coffey v. Coffey, 11 Neb. App. 788, 661 N.W.2d 327 (2003).
2. Termination of parental rights
The standard for termination of parental rights set out in this section, "best interests and welfare of the children," is unconstitutionally vague. Linn v. Linn, 205 Neb. 218, 286 N.W.2d 765 (1980).
Under Nebraska statutes, a termination of parental rights can only be decreed by a juvenile court in a proceeding brought for that purpose. Sosso v. Sosso, 196 Neb. 242, 242 N.W.2d 621 (1976).
The termination of parental rights to children is an issue separate and apart from the award of custody usually made in a proceeding for dissolution of a marriage. Perkins v. Perkins, 194 Neb. 201, 231 N.W.2d 133 (1975).
In cases of termination of parental rights under this section, the standard of proof must be by clear and convincing evidence. Timothy T. v. Shireen T., 16 Neb. App. 142, 741 N.W.2d 452 (2007).
Under subsection (7) of this section, the standard of proof for termination of parental rights is clear and convincing evidence. Under subsection (7) of this section, the Nebraska rules of evidence do apply to termination proceedings in district court. Joyce S. v. Frank S., 6 Neb. App. 23, 571 N.W.2d 801 (1997).
3. Child support
When making a determination of child support under this section, the court must take into account and give effect to an existing order of support under section 43-512.04. The court may order the existing order to remain in effect without modification after considering whether modification is warranted. Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).
Although this section does not permit a district court in a dissolution action to order child support beyond the age of majority, the district court has the authority to enforce the terms of an approved settlement which may include an agreement to support a child beyond the age of majority. Wood v. Wood, 266 Neb. 580, 667 N.W.2d 235 (2003).
Pursuant to subsection (6) of this section, when a minor child is living with, and being supported by, both of his or her natural parents, the statutory responsibility for that child's support is solely that of the natural parents, and not that of an ex-stepparent. Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1 (2000).
Pursuant to subsection (6) of this section, when earning capacity is used as a basis for an initial determination of child support under the Nebraska Child Support Guidelines, there must be some evidence that the parent is capable of realizing such capacity through reasonable effort. State v. Porter, 259 Neb. 366, 610 N.W.2d 23 (2000).
Although this section does not permit a district court in a dissolution action to order child support beyond the age of majority, the district court has the authority to enforce the terms of an approved settlement, which may include an agreement to support a child beyond the age of majority. Zetterman v. Zetterman, 245 Neb. 255, 512 N.W.2d 622 (1994).
Only parents may be ordered to pay child support or expenses for child care pursuant to a decree of marital dissolution. Pattrin v. Pattrin, 239 Neb. 844, 479 N.W.2d 122 (1992).
Child support payments are a vested property right of the payee as each accrues, and a court, therefore, may not forgive or modify past-due child support, but may modify the amount of future payments. Berg v. Berg, 238 Neb. 527, 471 N.W.2d 435 (1991).
Under former subsection (4) of this section, parental earning capacity is a factor to be considered with the best interests of a child in determining the amount of child support. A determination of the best interests of a child or children includes a judicial decision based on evidence, not exclusively on a parental stipulation for disposition of a question concerning the parties' child or children. Schulze v. Schulze, 238 Neb. 81, 469 N.W.2d 139 (1991).
This section does not compel the direct support of an adult handicapped child. Meyers v. Meyers, 222 Neb. 370, 383 N.W.2d 784 (1986).
Earning capacity, as used in this section, means the overall capability of a parent to make child support payments based on the overall situation of the parent making such payments, including investment income, and is not limited to the ability to earn a wage. Lainson v. Lainson, 219 Neb. 170, 362 N.W.2d 53 (1985).
The law in Nebraska imposes upon the trial court the obligation to approve a decree, and grants to the court the continuing jurisdiction to modify child support. Johnson v. Johnson, 215 Neb. 689, 340 N.W.2d 393 (1983).
When a change of circumstances is proven calling for a modification of child support payments, said modification is to be determined under the same factors applied in an original establishment of support payments, including the cost to the noncustodial parent of exercising reasonable visitation rights. Harb v. Harb, 209 Neb. 875, 312 N.W.2d 279 (1981).
A mother, who is not granted custody of a minor child, may be required to pay child support. The court is required to consider the earning capacity of each parent, together with other attendant circumstances. Meysenburg v. Meysenburg, 208 Neb. 456, 303 N.W.2d 783 (1981).
Subject to section 42-364, R.R.S.1943, Reissue 1974, and section 42-365, R.R.S.1943, Reissue 1978, amount of support can be modified after the decree has been entered. State v. Easley, 207 Neb. 443, 299 N.W.2d 439 (1980).
The signing of a consent to adoption does not, in itself, release the consenting parent from an obligation to support the child and the court's earlier opinion in Smith v. Smith, 201 Neb. 21, 265 N.W.2d 855 (1978), should not be read that way. Williams v. Williams, 206 Neb. 630, 294 N.W.2d 357 (1980).
The father has the primary responsibility for child support but the ability of the mother to support the children must also be considered. The trial court has the responsibility to adjust the equities between the parties. Scarpino v. Scarpino, 201 Neb. 564, 270 N.W.2d 913 (1978).
The rising cost of supporting children, together with great increase in an ex-husband's income, were sufficiently substantial changes of circumstances to justify a court order modifying the amount of child support. Pfeiffer v. Pfeiffer, 201 Neb. 56, 266 N.W.2d 82 (1978).
In the best interests of the children, subsequent changes in child support may be made by the court when required after notice and hearing. Greenfield v. Greenfield, 200 Neb. 608, 264 N.W.2d 675 (1978).
In addition to other things, in determining the amount of child support to be paid by a parent, the court shall consider the earning capacity of each parent. Lynch v. Lynch, 195 Neb. 804, 241 N.W.2d 123 (1976).
Financial position of husband and estimated cost of support must be considered together with all attendant circumstances in determining amount of child support. Hermance v. Hermance, 194 Neb. 720, 235 N.W.2d 231 (1975).
Child support allowances may be changed when required after notice and hearing. Wheeler v. Wheeler, 193 Neb. 615, 228 N.W.2d 594 (1975).
This section construed with former section 13-102, authorizes court to modify child support in paternity action in interests of children. Riederer v. Siciunas, 193 Neb. 580, 228 N.W.2d 283 (1975).
A judgment for child support may be modified only upon a showing of a material change in facts or circumstances which has occurred since the judgment was entered. Gray v. Gray, 192 Neb. 392, 220 N.W.2d 542 (1974).
Child support is equitable relief, which can be awarded by the court under this section. Johnson v. Johnson, 15 Neb. App. 292, 726 N.W.2d 194 (2006).
In the absence of a showing of bad faith, it is an abuse of discretion for a court to award retroactive child support when the evidence shows the obligated parent does not have the ability to pay the retroactive support and still meet current obligations. Cooper v. Cooper, 8 Neb. App. 532, 598 N.W.2d 474 (1999).
Pursuant to subsection (6) of this section, the trial court did not abuse its discretion when considering the earning capacity of a mother, who chose to work only part time in order to spend more time with her children, rather than her actual income when no specific evidence showed an inability to spend adequate time with the children while she was working 40 hours per week. Cooper v. Cooper, 8 Neb. App. 532, 598 N.W.2d 474 (1999).
Per subsection (6) of this section, the entire net amount received from personal injury settlement award constituted income for child support purposes. Mehne v. Hess, 4 Neb. App. 935, 553 N.W.2d 482 (1996).
Past expenses, such as for medical care and other reasonable and necessary expenses, are to be considered in the modification of the amount of child support payable in the future. Hoover v. Hoover, 2 Neb. App. 239, 508 N.W.2d 316 (1993).
4. Change in custody
Where facts relevant to the determination of best interests of minor children are not available to the court at the time of the initial custody determination, such facts may be considered upon a subsequent application for modification of a custody order. State ex rel. Laughlin v. Hugelman, 219 Neb. 254, 361 N.W.2d 581 (1985).
A decree fixing custody of minor children will not be modified unless there has been a change of circumstances indicating that the person having custody is unfit for that purpose or that the best interests of the children require such action. Tautfest v. Tautfest, 215 Neb. 233, 338 N.W.2d 49 (1983).
Notice and hearing required to modify custody of child except where court retained custody in original order. Brandl v. Brandl, 197 Neb. 778, 251 N.W.2d 155 (1977).
Trial court properly considered adultery and cohabitation of natural parent in action modifying decree awarding custody of minor. Bartley v. Bartley, 197 Neb. 246, 248 N.W.2d 39 (1976).
Under this section, the trial court on its own motion may make subsequent changes in a divorce decree in relation to minor children and their maintenance when required, but only after notice and opportunity to be heard. Francis v. Francis, 195 Neb. 417, 238 N.W.2d 468 (1976).
Pursuant to subsection (2) of this section, sexual activity by a parent, whether it is heterosexual or homosexual, is governed by the rule that to establish a material change in circumstances justifying a change in custody, there must be a showing that the minor child or children were exposed to such activity or were adversely affected or damaged by reason of such activity and that a change of custody is in the child or children's best interests. Hassenstab v. Hassenstab, 6 Neb. App. 13, 570 N.W.2d 368 (1997).
Pursuant to this section, a district court may obtain and retain legal custody of a minor child and grant a parent physical custody. The best interests of the child determine whether a change of physical custody is necessary. It is not necessary to show any change of circumstances otherwise required for a change in legal custody of the child. Vorderstrasse v. Vorderstrasse, 2 Neb. App. 256, 508 N.W.2d 872 (1993).
5. Visitation
The only statutory authority conferred on district courts to deal with children in dissolution actions is that contained in this section. This section confers jurisdiction upon the district court in the course of dissolution proceedings to grant visitation rights to an ex-stepparent who stood in loco parentis to the former stepchild. Hickenbottom v. Hickenbottom, 239 Neb. 579, 477 N.W.2d 8 (1991).
A noncustodial parent's access to her children should not be denied unless the court is convinced that visitation would be detrimental to the children's best interests and, in any case, only under extraordinary circumstances. Deacon v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (1980).
The fact children do not want to visit their noncustodial parent is not, in itself, sufficient reason to deny that parent's visitation rights when the visitation appears to be in the children's best interests and it also appears that the custodial parent has influenced the children against the other parent. Deacon v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (1980).
The right of visitation is subject to continuous review by the court. Murdoch v. Murdoch, 206 Neb. 327, 292 N.W.2d 795 (1980).
Generally, visitation relates to continuing and fostering the normal parental relationship of the noncustodial parent with the minor child or children of the marriage. Heyne v. Kucirek, 203 Neb. 59, 277 N.W.2d 439 (1979).
In determining reasonable visitation rights, the primary consideration is the best interest and welfare of the child, considering age, health, welfare, educational and social needs, the need for a stable home environment free of unsettling influences, the fitness of the noncustodial parent for such visitation, and the relationship of the child to that parent. Heyne v. Kucirek, 203 Neb. 59, 277 N.W.2d 439 (1979).
Trial court did not abuse discretion in limiting visitation rights of father, who was serving life sentence, by denying father's application for order requiring former wife to make minor children available for visitation. Casper v. Casper, 198 Neb. 615, 254 N.W.2d 407 (1977).
The best interests of the child are paramount in decisions concerning child visitation modifications. Walters v. Walters, 12 Neb. App. 340, 673 N.W.2d 585 (2004).
The primary consideration in all visitation disputes is the best interests of the child, which interests surpass considerations of strictly legal rights of the parents. Davis v. Davis, 7 Neb. App. 78, 578 N.W.2d 907 (1998).
A hearing defining specific rights of visitation requires the presentation of evidence concerning the visitation schedule and evidence which explains how and why the visitation schedule would be in the best interests of the children. Norris v. Norris, 2 Neb. App. 570, 512 N.W.2d 407 (1994).
6. Special proceeding
Proceedings regarding modification of a marital dissolution and custody determinations are both special proceedings. Furstenfeld v. Pepin, 287 Neb. 12, 840 N.W.2d 862 (2013).
Modification of child custody and support in a dissolution action is a special proceeding, and thus, the statute governing the procedure for a default judgment in a civil action is not controlling. Fitzgerald v. Fitzgerald, 286 Neb. 96, 835 N.W.2d 44 (2013).
Proceedings regarding modification of a marital dissolution, which are controlled by this section, are special proceedings as defined by section 25-1902. Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009).
Custody determinations which are controlled by this section are considered special proceedings. State ex rel. Reitz v. Ringer, 244 Neb. 976, 510 N.W.2d 294 (1994).
Custody determinations, which are controlled by this section, are considered special proceedings. Michael B. v. Donna M., 11 Neb. App. 346, 652 N.W.2d 618 (2002).
7. Miscellaneous
A juvenile court lacks statutory authority to transfer a proceeding back to the district court under subsection (5) of this section where: (1) The district court, having subject matter jurisdiction of a modification proceeding under subsection (6) of this section in which termination of parental rights has been placed in issue and having personal jurisdiction of the parties to that proceeding, has transferred jurisdiction of the proceeding to the appropriate juvenile court; (2) termination of parental rights remains in issue and unadjudicated in the transferred proceeding; (3) the State is not involved in the proceeding and has not otherwise asserted jurisdiction over the child or children involved in the modification proceeding; and (4) the juvenile court has not otherwise been deprived of jurisdiction. Christine W. v. Trevor W., 303 Neb. 245, 928 N.W.2d 398 (2019).
Summons is required to be served on the defendant in a modification proceeding. Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016).
The language of subsection (6) of this section is broad enough to encompass extraordinary expenses of a child. Caniglia v. Caniglia, 285 Neb. 930, 830 N.W.2d 207 (2013).
Potential reduction of movant's indebtedness to the IRS if granted ex-wife's tax dependency deductions in exchange for larger child support payments does not constitute sufficient change of circumstances to justify modification of divorce decree. A tax dependency exemption is nearly identical to an award of child support or alimony and is thus capable of being modified as an order of support. Hall v. Hall, 238 Neb. 686, 472 N.W.2d 217 (1991).
Courts have a duty to consider whether religious beliefs threaten the health and well-being of a child. LeDoux v. LeDoux, 234 Neb. 479, 452 N.W.2d 1 (1990).
The only statutory authority conferred on district courts to deal with children in dissolution actions is that contained in this section. Meyers v. Meyers, 222 Neb. 370, 383 N.W.2d 784 (1986).
It would be unreasonable to conclude that the district court should not have retained jurisdiction where the district court had presided over proceedings for ten years. R.D.N. v. T.N., 218 Neb. 830, 359 N.W.2d 777 (1984).
Under this section the trial court, on its own motion, may make subsequent changes or modifications in a decree of dissolution of a marriage in relation to any minor children and their maintenance when required, but only after a notice to the parties and an opportunity to be heard. Tautfest v. Tautfest, 215 Neb. 233, 338 N.W.2d 49 (1983).
Allowances of alimony in the amount of ten thousand dollars annually plus child support of four hundred dollars per month, which would require approximately seventy-five percent of former husband's present net income, were beyond the reasonable reach and capacity of former husband; and considering property division made by the trial court and the circumstances of the parties, such allowances were excessive and represented an abuse of discretion. Petersen v. Petersen, 208 Neb. 1, 301 N.W.2d 592 (1981).
In a divorce action, a court may not order a party to award specific property to a child but the parties may agree to such a provision. Lockwood v. Lockwood, 205 Neb. 818, 290 N.W.2d 636 (1980).
This section authorizes the court to make changes in a divorce decree after term of court to cover children conceived during marriage but born after the divorce. Perkins v. Perkins, 198 Neb. 401, 253 N.W.2d 42 (1977).
This section, which provides that a court may order joint custody, regardless of any parental agreement or consent, if the court specifically finds, after a hearing in open court, that joint physical custody or joint legal custody, or both, is in the best interests of the minor child, may be applied to custody disputes in paternity actions. State on behalf of Carter W. v. Anthony W., 24 Neb. App. 47, 879 N.W.2d 402 (2016).
In determining a child's best interests in custody and visitation matters, factors to be considered include the relationship of the minor child to each parent; the desires and wishes of the minor child; the general health, welfare, and social behavior of the minor child; and credible evidence of abuse. Schnell v. Schnell, 12 Neb. App. 321, 673 N.W.2d 578 (2003).
Although this section provides that the trial court on its own motion may make subsequent changes or modifications in a decree of dissolution of a marriage in relation to any minor children and their maintenance when required, such changes may be made only after notice to the parties and an opportunity to be heard. Templeton v. Templeton, 9 Neb. App. 937, 622 N.W.2d 424 (2001).
In any proceeding when a district court, county court, or separate juvenile court has ordered, temporarily or permanently, a parent, referred to as parent-employee in sections 42-364.01 to 42-364.12, to pay any amount for the support of a minor child, that court shall, following application, hearing, and findings, as required by sections 42-364.02 to 42-364.12, order the employer of such parent:
(1) To withhold, from the parent-employee's nonexempt, disposable earnings presently due and to be due in the future, such amounts as shall reduce and satisfy the parent-employee's previous arrearage in child support payments arising from the parent-employee's failure to comply fully with an order previously entered to pay child support, the parent-employee's obligation to pay child support as ordered by the court as such obligation accrues in the future;
(2) To pay to the parent-employee, on his or her regularly scheduled payday such earnings then due which are not ordered withheld;
(3) To deduct from the sums so withheld an amount set by the court, but not to exceed two dollars and fifty cents in any calendar month, as compensation for the employer's reasonable cost incurred in complying with such order;
(4) To remit within seven calendar days after the date the obligor is paid such sums withheld, less the deduction as allowed by the court pursuant to subdivision (3) of this section, to the State Disbursement Unit;
(5) To refrain from dismissing, demoting, disciplining, and in any way penalizing the parent-employee on account of the proceeding to collect child support, on account of any order or orders entered by the court in such proceeding, and on account of employer compliance with such order or orders; and
(6) To notify in writing the clerk of the court entering such order of the termination of the employment of such parent-employee, the last-known address of the parent-employee, and the name and address of the parent-employee's new employer, if known, and to provide such written notification within thirty days after the termination of employment.
Source: Laws 1974, LB 1015, § 6; Laws 1983, LB 371, § 4; Laws 2000, LB 972, § 12.
Annotations
Issues of visitation and previous failure to enforce a child support order are not relevant to proceedings under section 42-358, R.R.S.1943, or section 42-364.01, R.R.S.1943. Eliker v. Eliker, 206 Neb. 764, 295 N.W.2d 268 (1980).
Sections 42-364.01 to 42-364.12 amend section 25-1588, R.R.S.1943, insofar as it contains no limitations on garnishment of disposable earnings in aid of an order for support of a person, and is inconsistent with the provisions of these sections. Ferry v. Ferry, 201 Neb. 595, 271 N.W.2d 450 (1978).
Any person having a direct interest in the welfare of a minor child may file an application, with the court that has previously ordered a parent to pay any amount for the support of the minor child, requesting the court to hold a hearing on such application and to enter an order as allowed by the provisions of section 42-364.01. Persons having a direct interest in the welfare of a child shall include a parent or legal guardian of the child, a person having custody of the child pursuant to an order of a court of competent jurisdiction, a county attorney, a deputy or assistant county attorney, and an employee of a county welfare office. No court, even if it has custody of a minor child, may initiate such an application.
Source: Laws 1974, LB 1015, § 7; Laws 1983, LB 371, § 5.
Upon the filing of an application to withhold and transmit earnings, the court shall set a date, time, and place for a hearing thereon, which hearing shall be set not more than three weeks later than the date such application is filed. The applicant shall then cause to be served on the employer a copy of the application, a notice of hearing and interrogatories to be completed and returned by the employer to the court no later than three days prior to the hearing, which interrogatories when completed shall show whether the parent-employee is an employee of the employer, whether such parent-employee performs work or provides services or makes sales for the employer in Nebraska, the present length of employment of the parent-employee with the employer, the present pay period for such parent-employee, the average earnings for such parent-employee per pay period, the average disposable earnings for such parent-employee per pay period, and the name and address of the person, office or division of the employer responsible for the preparation of the parent-employee's earnings payments. The applicant shall also cause to be served on the parent-employee a copy of the application and a notice of hearing.
Source: Laws 1974, LB 1015, § 8.
Service of the documents required by the provisions of section 42-364.03 shall be made in the manner provided for service of a summons in a civil action, except that certified mail service may not be used.
Source: Laws 1974, LB 1015, § 9; Laws 1983, LB 447, § 49; Laws 1984, LB 845, § 28.
The court that entered the order requiring the parent to pay any amount for the support of a minor child and in which the application to withhold and transmit earnings is filed shall have jurisdiction of any employer who transacts any business in the state or contracts to supply services or things in the state and of the parent-employee and all the parent-employee's earnings if the parent-employee be a resident of the state, and, if the parent-employee not be a resident of the state, of those earnings of the parent-employee arising from the performance of work, the providing of services, or the sale of goods or services for the employer by the parent-employee in the state. Such court has jurisdiction regardless of where in the state the employer transacts business or contracts to supply services or things, or where the parent-employee resides or performs work, provides services, or sells goods and services. A failure of service, as required by the provisions of sections 42-364.03 and 42-364.04, upon the parent-employee shall not affect the court's jurisdiction of the earnings and of the employer.
Source: Laws 1974, LB 1015, § 10.
The court shall enter an order as allowed by section 42-364.01 at the hearing on the application for such order, if it finds that it has jurisdiction of the employer and the earnings of the parent-employee, that the parent-employee is an employee as defined in section 42-364.11 of the employer, and that the parent-employee has not complied in full with the previous order of the court requiring such parent-employee to pay for the support of a minor child. Noncompliance with a child support order shall not be found if the child support payments are automatically withheld from the paycheck if (1) any delinquency or arrearage is solely caused by a disparity between the schedule of the regular pay dates and the scheduled date the child support is due, (2) the total amount of child support to be withheld from the paychecks and the amount ordered by the support order are the same on an annual basis, and (3) the automatic deductions for child support are continuous and occurring. Nothing shall prohibit the court from continuing the order to withhold and transmit after the parent-employee has become current on the court-ordered obligation to pay child support. In fixing the amount to be withheld by the employer from the parent-employee's nonexempt, disposable earnings, the court shall determine that amount of earnings which, if paid over a reasonable period, would satisfy in full the child support arrearage existing as of the time of the hearing and would satisfy each child support obligation to come due in the future as such came due and would satisfy over a reasonable period of time the attorney's fee awarded, if any, pursuant to section 42-364.07. The court shall set flat amounts to be withheld, or, if the parent-employee's pay varies substantially from pay period to pay period, it may set a percentage of the nonexempt, disposable earnings to be withheld.
Source: Laws 1974, LB 1015, § 11; Laws 1983, LB 371, § 6; Laws 1984, LB 845, § 29; Laws 1997, LB 18, § 2.
The court may award a reasonable attorney's fee to the applicant for the services of the applicant's attorney in obtaining the order to withhold and transmit earnings. Such fee shall be reasonably related to the time spent by the attorney in obtaining such order and not to the amounts collected or to be collected pursuant to such order. If the court awards an attorney's fee, it shall provide that such fee shall be paid from that portion of the amounts withheld and transmitted to the clerk of the court which the court designates as the attorney fee award.
Source: Laws 1974, LB 1015, § 12.
The amount to be withheld from the parent-employee's disposable income under any order to withhold and transmit earnings entered pursuant to sections 42-364.01 to 42-364.12 shall not in any case exceed the maximum amount permitted to be withheld under section 303(b) of the Consumer Protection Credit Act, 15 U.S.C. 1673(b)(2)(A) and (B), nor shall any amount withheld to satisfy a child or spousal support arrearage, when added to the amount withheld to pay current support and the fee provided for in subdivision (3) of section 42-364.01, exceed such maximum amount.
Source: Laws 1974, LB 1015, § 13; Laws 1986, LB 600, § 8.
Annotations
The basic subsistence limitation under the child support guidelines was not applicable to reduce the amount being withheld from a father's monthly Social Security benefits to pay his child support arrearages. Ybarra v. Ybarra, 28 Neb. App. 216, 943 N.W.2d 447 (2020).
Any order to withhold and transmit earnings shall have priority over any attachment, execution, garnishment, or wage assignment, unless otherwise ordered by the court.
Source: Laws 1974, LB 1015, § 14.
An order to withhold and transmit earnings shall dissolve without any court action thirty days after the parent-employee ceases employment with the employer. An order to withhold and transmit earnings may be revoked by the court upon application when the parent-employee is not in arrears of any court-ordered child support as of the date of the application. An order to withhold and transmit earnings may be modified or revoked by the court upon application and for good cause shown. All applications to revoke or modify shall be served upon the employer and all persons having an interest in the order to withhold and transmit earnings, by United States certified mail, return receipt requested, addressed to the last-known addresses of such persons.
Source: Laws 1974, LB 1015, § 15; Laws 1983, LB 371, § 7.
For the purposes of sections 42-364.01 to 42-364.14, unless the context otherwise requires:
(1) Earnings shall mean compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and shall include any periodic payments pursuant to a pension or a retirement program and any payments made to an independent contractor for services performed;
(2) Disposable earnings shall mean that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld, excepting the amounts required to be deducted and withheld pursuant to sections 42-357 and 42-363 to 42-365 or those provisions allowing garnishment, attachment, or execution;
(3) Employer shall mean any person, partnership, limited liability company, firm, corporation, association, political subdivision, or department of the state in possession of earnings;
(4) Employee shall mean any person who is compensated by an employer for services performed, regardless of how such compensation is denominated, and shall include independent contractors who receive compensation for services;
(5) Workweek shall mean any seven consecutive days during which a parent-employee performs work, provides services, or sells goods or services for an employer; and
(6) Pay period shall mean that regular interval of time, whether it be daily, weekly, biweekly, semimonthly, monthly, or some other regular interval, for which an employer pays earnings to a parent-employee.
Source: Laws 1974, LB 1015, § 16; Laws 1983, LB 371, § 8; Laws 1993, LB 121, § 215; Laws 2004, LB 1207, § 26.
Any employer failing to make answer truthfully and completely to the interrogatories propounded pursuant to section 42-364.03 may be punished by the court for civil contempt. The court shall first afford such employer a reasonable opportunity to purge itself of such contempt. Any employer who shall fail or refuse to deliver earnings pursuant to an order to withhold and transmit earnings, when such employer has had in its possession such earnings, shall be personally liable for the amount of such earnings which the employer failed or refused to deliver, together with costs, interest, and reasonable attorney's fees. Any employer who fails to notify in writing the clerk of the court entering an order to withhold and transmit earnings of the termination of the parent-employee and the name and address of the parent-employee's new employer, if known, within thirty days after the termination of employment, may be punished by the court for civil contempt. Any employer who dismisses, demotes, disciplines, or in any way penalizes a parent-employee on account of any proceeding to collect child support, on account of any order or orders entered by the court in such proceeding, or on account of the employer's compliance with such order or orders, shall be liable to the parent-employee for all damages, together with costs, interest thereon, and a reasonable attorney's fee, resulting from the employer's action and may be enjoined by any court of competent jurisdiction from continuing such action. Any proceeding to punish an employer for contempt, to hold the employer liable for earnings not withheld and transmitted, to hold the employer liable for actions taken against the parent-employee, or to enjoin the employer from continuing such actions, must be commenced within ninety days after the employer's act or failure to act upon which such proceeding is based.
Source: Laws 1974, LB 1015, § 17.
(1) Any order for support entered by the court shall specifically provide that any person ordered to pay a judgment shall be required to furnish to the clerk of the district court his or her address, telephone number, and social security number, the name of his or her employer, whether or not such person has access to employer-related health insurance coverage and, if so, the health insurance policy information, and any other information the court deems relevant until such judgment is paid in full. The person shall also be required to advise the clerk of any changes in such information between the time of entry of the decree and the payment of the judgment in full. If both parents are parties to the action, such order shall provide that each be required to furnish to the clerk of the district court all of the information required by this subsection. Failure to comply with this section shall be punishable by contempt.
(2) All support orders entered by the court shall include the year of birth of any child for whom the order requires the provision of support.
(3) Until the Title IV-D Division of the Department of Health and Human Services has operative the statewide automated data processing and retrieval system necessary for centralized collection and disbursement of support order payments:
(a) If any case contains an order or judgment for child, medical, or spousal support, the order shall include the following statements:
In the event that the (plaintiff or defendant) fails to pay any child, medical, or spousal support payment, as such failure is certified each month by the district court clerk in cases in which court-ordered support is delinquent in an amount equal to the support due and payable for a one-month period of time, he or she shall be subject to income withholding and may be required to appear in court on a date to be determined by the court and show cause why such payment was not made. In the event that the (plaintiff or defendant) fails to pay and appear as ordered, a warrant shall be issued for his or her arrest.
(b) If the court orders income withholding regardless of whether or not payments are in arrears pursuant to section 43-1718.01 or 43-1718.02, the statement in this subsection may be altered to read as follows:
In the event that the (plaintiff or defendant) fails to pay any child, medical, or spousal support payment, as such failure is certified each month by the district court clerk in cases in which court-ordered support is delinquent in an amount equal to the support due and payable for a one-month period of time, he or she may be required to appear in court on a date to be determined by the court and show cause why such payment was not made. In the event that the (plaintiff or defendant) fails to pay and appear as ordered, a warrant shall be issued for his or her arrest.
(4) When the Title IV-D Division of the Department of Health and Human Services has operative the statewide automated data processing and retrieval system necessary for centralized collection and disbursement of support order payments:
(a) If any case contains an order or judgment for child, medical, or spousal support, the order shall include the following statements:
In the event that the (plaintiff or defendant) fails to pay any child, medical, or spousal support payment, as such failure is certified each month by the State Disbursement Unit in cases in which court-ordered support is delinquent in an amount equal to the support due and payable for a one-month period of time, he or she shall be subject to income withholding and may be required to appear in court on a date to be determined by the court and show cause why such payment was not made. In the event that the (plaintiff or defendant) fails to pay and appear as ordered, a warrant shall be issued for his or her arrest.
(b) If the court orders income withholding regardless of whether or not payments are in arrears pursuant to section 43-1718.01 or 43-1718.02, the statement in this subsection may be altered to read as follows:
In the event that the (plaintiff or defendant) fails to pay any child, medical, or spousal support payment, as such failure is certified each month by the State Disbursement Unit in cases in which court-ordered support is delinquent in an amount equal to the support due and payable for a one-month period of time, he or she may be required to appear in court on a date to be determined by the court and show cause why such payment was not made. In the event that the (plaintiff or defendant) fails to pay and appear as ordered, a warrant shall be issued for his or her arrest.
Source: Laws 1983, LB 371, § 9; Laws 1984, LB 845, § 30; Laws 1985, Second Spec. Sess., LB 7, § 17; Laws 1993, LB 523, § 1; Laws 1994, LB 1224, § 45; Laws 2000, LB 972, § 13; Laws 2004, LB 1207, § 27; Laws 2006, LB 1113, § 36; Laws 2007, LB296, § 59; Laws 2008, LB1014, § 34.
Nothing in the Income Withholding for Child Support Act or sections 42-364.01 to 42-364.13 shall be construed as prohibiting a parent-employee from consenting to an order to withhold and transmit earnings as part of a property settlement agreement incorporated into a decree dissolving a marriage or by agreement in a proceeding in the district court, county court, or separate juvenile court in which the payment of child support is an issue. If the parent-employee has consented to such an order, the court shall not be required to hold a separate hearing or make findings as provided in the act or such sections. The clerk of the court shall notify the employer, if any, of the parent-employee of any such order by first-class mail and file a record of such mailing in the court.
Source: Laws 1983, LB 371, § 10; Laws 2007, LB554, § 33.
Cross References
In any proceeding when a court has ordered a parent to pay, temporarily or permanently, any amount for the support of a minor child and in the same proceeding has ordered parenting time, visitation, or other access with any minor child on behalf of such parent, the court shall enforce its orders as follows:
(1) Upon the filing of a motion which is accompanied by an affidavit stating that either parent has unreasonably withheld or interfered with the exercise of the court order after notice to the parent and hearing, the court shall enter such orders as are reasonably necessary to enforce rights of either parent including the modification of previous court orders relating to parenting time, visitation, or other access. The court may use contempt powers to enforce its court orders relating to parenting time, visitation, or other access. The court may require either parent to file a bond or otherwise give security to insure his or her compliance with court order provisions; and
(2) Costs, including reasonable attorney's fees, may be taxed against a party found to be in contempt pursuant to this section.
Source: Laws 1983, LB 371, § 3; Laws 2000, LB 972, § 14; Laws 2007, LB554, § 34.
Annotations
Modifications to a parenting plan made after finding the father in contempt were remedial measures to gain compliance and were part of the equitable relief that the court was authorized to provide. Yori v. Helms, 307 Neb. 375, 949 N.W.2d 325 (2020).
A motion to show cause gave the custodial parent notice that she could be found in contempt for denying parenting time which also gave notice of a possible modification pursuant to this section. Martin v. Martin, 294 Neb. 106, 881 N.W.2d 174 (2016).
In contempt actions in domestic relations cases, a trial court is authorized to award attorney fees only against a party found to be in contempt under section 42-370 or this section, or, if a trial court determines the contempt action is frivolous, attorney fees may be awarded under section 25-824. Hawks v. Hawks, 32 Neb. App. 70, 993 N.W.2d 688 (2023).
The Supreme Court shall provide by court rule, as a rebuttable presumption, guidelines for the establishment of all child support obligations. Child support shall be established in accordance with such guidelines, which guidelines are presumed to be in the best interests of the child, unless the court finds that one or both parties have produced sufficient evidence to rebut the presumption that the application of the guidelines will result in a fair and equitable child support order.
Source: Laws 1985, Second Spec. Sess., LB 7, § 18; Laws 1994, LB 1224, § 46.
Cross References
Annotations
1. General
2. Miscellaneous
1. General
Though the Nebraska Child Support Guidelines are to be applied as a rebuttable presumption, offering flexibility and guidance rather than a stringent formula, the guidelines generally cannot be construed to allow for a deviation that is contrary to one of its specific provisions. Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017).
All orders for child support shall be established in accordance with the provisions of the Nebraska Child Support Guidelines unless the court finds that one or both parties have produced sufficient evidence to rebut the presumption that the application of the guidelines will result in a fair and equitable child support order. Dueling v. Dueling, 257 Neb. 862, 601 N.W.2d 516 (1999).
Generally, child support payments should be set according to the Nebraska Child Support Guidelines. Bondi v. Bondi, 255 Neb. 319, 586 N.W.2d 145 (1998).
The court may deviate from the Nebraska Child Support Guidelines whenever application of the guidelines in an individual case would be unjust or inappropriate. Knippelmier v. Knippelmier, 238 Neb. 428, 470 N.W.2d 798 (1991).
The child support guidelines set out a rebuttable presumption of a fair and equitable child support order. Stuczynski v. Stuczynski, 238 Neb. 368, 471 N.W.2d 122 (1991).
The Nebraska Supreme Court's child support guidelines apply to any child support matter adjudicated from and after October 1, 1987. Formanack v. Formanack, 234 Neb. 325, 451 N.W.2d 250 (1990).
In general, child support payments should be set according to the Nebraska Child Support Guidelines. Ybarra v. Ybarra, 28 Neb. App. 216, 943 N.W.2d 447 (2020).
Generally, child support payments should be set according to the guidelines. McDonald v. McDonald, 21 Neb. App. 535, 840 N.W.2d 573 (2013).
Child support payments should be set according to the Nebraska Child Support Guidelines established pursuant to this section, unless sufficient evidence rebuts the presumption that applying the guidelines will result in a fair and equitable child support order. Pool v. Pool, 9 Neb. App. 453, 613 N.W.2d 819 (2000).
The Nebraska Child Support Guidelines apply in juvenile cases where child support is ordered. In re Interest of Tamika S. et al., 3 Neb. App. 624, 529 N.W.2d 147 (1995).
In general, child support payments should be set according to the guidelines, but the trial court may deviate from the guidelines in an individual case if application of the guidelines would be unjust or inappropriate. McCall v. McCall, 1 Neb. App. 373, 496 N.W.2d 8 (1992).
2. Miscellaneous
Evidence that the mother continued to receive child support payments on behalf of a child placed in foster care was sufficient to rebut the presumption that application of the child support guidelines would result in a fair and equitable child support order. Lizeth E. v. Roberto E., 317 Neb. 971, 12 N.W.3d 809 (2024).
Trial court did not abuse its discretion in considering expenses incurred by a person in raising offspring from a subsequent marriage in calculating that person's child support obligation to a former spouse. Czaplewski v. Czaplewski, 240 Neb. 629, 483 N.W.2d 751 (1992).
The Nebraska Child Support Guidelines constitute a material change of circumstances sufficient to justify consideration of proposed modification of child support orders entered before October 1, 1987, and may in some cases be retroactively applied to the date of the original ruling on the modification. State ex rel. Crook v. Mendoza, 1 Neb. App. 180, 491 N.W.2d 62 (1992).
A decree of dissolution, legal separation, or order establishing paternity shall incorporate financial arrangements for each party's responsibility for reasonable and necessary medical, dental, and eye care, medical reimbursements, day care, extracurricular activity, education, and other extraordinary expenses of the child and calculation of child support obligations.
Source: Laws 2008, LB1014, § 33.
Annotations
Provisions in a decree or judgment related to child-related expenses listed in this section are modifiable when there has been a material change in circumstances, as such expenses are a subset of child support. Windham v. Kroll, 307 Neb. 947, 951 N.W.2d 744 (2020).
Court erred in not addressing each party's responsibility for the reasonable and necessary expenses of the children based on the record. Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019).
The decree, together with the attached parenting plan, allocated the parties' responsibility for the necessary child expenses. Leners v. Leners, 302 Neb. 904, 925 N.W.2d 704 (2019).
Supervision of children in the form of day camps, lessons, or activities may under the circumstances constitute childcare for purposes of child support so long as such supervision is reasonable, in the child's best interests, and necessary due to employment or for education or training to obtain a job or enhance earning potential. Moore v. Moore, 302 Neb. 588, 924 N.W.2d 314 (2019).
A party’s responsibility under this section for reasonable and necessary medical, dental, and eye care; medical reimbursements; daycare; extracurricular activity; education; and other extraordinary expenses of the child to be made in the future may be modified if the applicant proves that a material change in circumstances has occurred since entry of the decree or a previous modification. Caniglia v. Caniglia, 285 Neb. 930, 830 N.W.2d 207 (2013).
An appellate court views this section in the context of the statutory scheme governing child support. Caniglia v. Caniglia, 285 Neb. 930, 830 N.W.2d 207 (2013).
The expenses stated in this section represent other incidents of support to be addressed in a dissolution decree that are outside of the monthly installment established in Neb. Ct. R. section 4-207. Caniglia v. Caniglia, 285 Neb. 930, 830 N.W.2d 207 (2013).
The words of this section are plain, direct, and unambiguous. Caniglia v. Caniglia, 285 Neb. 930, 830 N.W.2d 207 (2013).
Because the broader, more general terms contained in section 42-369(3) preceded the adoption of the Nebraska Child Support Guidelines and the passage of this section, the guidelines and this section are construed to control what categories of expenses can be ordered in addition to the monthly child support obligation determined under the guidelines. Kelly v. Kelly, 29 Neb. App. 198, 952 N.W.2d 207 (2020); Smith v. King, 29 Neb. App. 152, 953 N.W.2d 258 (2020).
A trial court has the authority to order a parent to pay the categories of expenses specified in this section, in addition to the monthly child support obligation calculated under the guidelines. Smith v. King, 29 Neb. App. 152, 953 N.W.2d 258 (2020).
The Legislature finds that individuals with disabilities, as defined in section 42-364, continue to face unfair, preconceived, and unnecessary societal biases as well as antiquated attitudes regarding their ability to successfully parent their children.
Source: Laws 2018, LB845, § 16.
When dissolution of a marriage is decreed, 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.
Source: Laws 1972, LB 820, § 19; Laws 1974, LB 1015, § 5; Laws 1980, LB 622, § 1; Laws 2004, LB 1207, § 28.
Annotations
1. Generally
2. Equitable property division
3. Marital property / separate property
4. Debts
5. Alimony award
6. Modification or revocation
7. Specific considerations
8. Miscellaneous
1. Generally
In considering the specific criteria of this section concerning an award of alimony, a court's polestar must be fairness and reasonableness as determined by the facts of each case. Alimony should not be used to equalize the incomes of the parties or to punish one of the parties. Alimony may be used to assist the other party during a reasonable time to bridge that period of unavailability for employment or during that period to get proper training for employment. In awarding alimony, a court should consider, in addition to the specific criteria listed in this section, the income and earning capacity of each party as well as the general equities of each situation. In entering a decree awarding alimony, the court may take into account all of the property owned by the parties at the time of entering the decree, whether accumulated by their joint efforts or acquired by inheritance, and make such award as is proper under all the circumstances disclosed by the record. Bauerle v. Bauerle, 263 Neb. 881, 644 N.W.2d 128 (2002).
The ultimate test for determining the appropriateness of a division of property is reasonableness as determined by the facts of each case. Carter v. Carter, 261 Neb. 881, 626 N.W.2d 576 (2001).
The debts of the parties should be considered in making a property division. Property division is not subject to a rigid mathematical formula, but, rather, turns upon the facts and circumstances of each case. The ultimate test for determining an appropriate division of marital property is one of reasonableness. In determining whether alimony should be awarded, in what amount, and over what period the ultimate criterion is one of reasonableness. Regarding property division, when the marriage is of long duration and the parties are parents of all the children, the "one-third to one-half" rule is of particular significance. Preston v. Preston, 241 Neb. 181, 486 N.W.2d 902 (1992).
In determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criterion is one of reasonableness. Stuczynski v. Stuczynski, 238 Neb. 368, 471 N.W.2d 122 (1991); Patton v. Patton, 20 Neb. App. 51, 818 N.W.2d 624 (2012).
A division of property and the awarding of alimony are not subject to a precise mathematical formula. Rather, an appropriate division of marital property and amount of alimony must turn on reasonableness and the circumstances of each particular case in the light of the factors set forth in this section. Kimbrough v. Kimbrough, 228 Neb. 358, 422 N.W.2d 556 (1988).
The ultimate test for the division of property as well as an award of alimony is reasonableness as determined by the facts of each case. Maricle v. Maricle, 221 Neb. 552, 378 N.W.2d 855 (1985).
The division of property in a dissolution case is based on equitable principles, and its purpose is to divide the marital assets equitably. Black v. Black, 221 Neb. 533, 378 N.W.2d 849 (1985).
Alimony is not awarded as a reward to the receiving spouse or as punishment of the spouse against whom it is charged. It is an effort, insofar as is reasonably possible, to rectify the frequent economic imbalance in the earning power and standard of living of the divorced husband and wife. Its continuation is not dependent on the good conduct of either spouse. Else v. Else, 219 Neb. 878, 367 N.W.2d 701 (1985).
The ultimate criterion in determining alimony is one of reasonableness. Pittman v. Pittman, 216 Neb. 746, 345 N.W.2d 332 (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).
In determining what amount of alimony is paid over what period of time, the ultimate criterion is reasonableness, and the Supreme Court is not inclined to disturb the trial court's award 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 of alimony or division of property in an action for dissolution of marriage can be precisely determined. They are to be determined by the facts of each case and the court will consider all pertinent facts in reaching an award that is just and equitable. Cole v. Cole, 208 Neb. 562, 304 N.W.2d 398 (1981).
The award of alimony and the division of property are determined by the circumstances of the parties at the time of the dissolution of the marriage. Amen v. Amen, 207 Neb. 694, 301 N.W.2d 74 (1981).
The fixing of alimony or distribution of property rests in the sound discretion of the district court and in the absence of an abuse of discretion will not be disturbed on appeal. Lockwood v. Lockwood, 205 Neb. 818, 290 N.W.2d 636 (1980).
The criteria to be used in determining the amount to be awarded in a property settlement is what appears to be fair and equitable between the parties under the circumstances present in the case. Steele v. Steele, 201 Neb. 549, 270 N.W.2d 903 (1978).
In determining an award of alimony, the trial court must consider the 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).
Upon the dissolution of a marriage, the court may order the payment of such alimony by one party to the other as may be reasonable under the circumstances of the parties. Walker v. Walker, 193 Neb. 540, 227 N.W.2d 878 (1975).
Division of property and award of alimony in a divorce action are to be determined by all pertinent facts in each case. Bliven v. Bliven, 190 Neb. 492, 209 N.W.2d 168 (1973).
Having regard for circumstances in each case, court may order payment 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).
In addition to the specific criteria listed in this section, a court should consider the income and earning capacity of each party and the general equities of the situation. Nelson v. Richardson-Nelson, 30 Neb. App. 15, 964 N.W.2d 463 (2021).
In addition to the specific criteria listed in this section, in dividing property and considering alimony upon a dissolution of marriage, a court is to consider the income and earning capacity of each party, as well as the general equities of each situation. Patton v. Patton, 20 Neb. App. 51, 818 N.W.2d 624 (2012); Titus v. Titus, 19 Neb. App. 751, 811 N.W.2d 318 (2012); Grams v. Grams, 9 Neb. App. 994, 624 N.W.2d 42 (2001).
The purpose of property division is to equitably distribute the marital assets between the parties, and the polestar for such distribution is fairness and reasonableness as determined by the facts of each case. Shuck v. Shuck, 18 Neb. App. 867, 806 N.W.2d 580 (2011).
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. Kramer v. Kramer, 1 Neb. App. 641, 510 N.W.2d 351 (1993).
2. Equitable property division
The purpose of a property division is to equitably distribute marital assets and nothing in the language of this section prevents the court from ordering an equalization payment without awarding liquid assets from the marital estate. Karas v. Karas, 314 Neb. 857, 993 N.W.2d 473 (2023).
A district court need not choose one single date to value the entire marital estate, so long as the valuation date rationally relates to the property being valued. Rohde v. Rohde, 303 Neb. 85, 927 N.W.2d 37 (2019).
Equitable property division is a three-step process. The first step is to classify the parties’ property as marital or nonmarital. The second step is to value the marital assets and liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties in accordance with the principles contained in this section. Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017); Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004); Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004); Patton v. Patton, 20 Neb. App. 51, 818 N.W.2d 624 (2012); Sughroue v. Sughroue, 19 Neb. App. 912, 815 N.W.2d 210 (2012); Ging v. Ging, 18 Neb. App. 145, 775 N.W.2d 479 (2009).
The purpose of a property division is to distribute the marital assets equitably between the parties. Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004); Ging v. Ging, 18 Neb. App. 145, 775 N.W.2d 479 (2009).
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 general rule is to award a spouse one-third to one-half of the marital estate, the polestar being fairness and reasonableness as determined by the facts of each case. Equitable property division under this section is a three-step process. The first step is to classify the parties' property as marital or nonmarital. The second step is to value the marital assets and marital liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties in accordance with the principles contained in this section. Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002).
Equitable property division under this section is a three-step process. The first step is to classify the parties' property as marital or nonmarital. The second step is to value the marital assets and marital liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties in accordance with the principles contained in this section. Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598 (2000).
A division of property is not subject to a precise mathematical formula. Rather, an appropriate division of marital property must turn on reasonableness and the circumstances of each particular case in the light of the factors 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).
How property owned at marriage and acquired by gift or inheritance will be considered in determining division of property or award of alimony must depend upon the facts of the particular case and the equities involved. Lord v. Lord, 213 Neb. 557, 330 N.W.2d 492 (1983).
The equitable division of property under this section is a three-step process. The first step is to classify the parties' property as marital or nonmarital, setting aside the nonmarital property to the party who brought that property to the marriage. The second step is to value the marital assets and marital liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties in accordance with the principles contained in this section. Hamann v. Hamann, 31 Neb. App. 131, 977 N.W.2d 687 (2022).
The purpose of a property division under this section is to distribute the marital assets equitably between the parties. There is no mathematical formula by which property awards can be precisely determined, but as a general rule, a spouse should be awarded one-third to one-half of the marital estate, the polestar being fairness and reasonable as determined by the facts of each case. Hamann v. Hamann, 31 Neb. App. 131, 977 N.W.2d 687 (2022).
The equitable division of property under this section is a three-step process. The first step is to classify the parties' property as marital or nonmarital, setting aside the nonmarital property to the party who brought that property to the marriage. The second step is to value the marital assets and marital liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties in accordance with the principles contained in this section. Montegut v. Mosby-Montegut, 31 Neb. App. 107, 977 N.W.2d 671 (2022).
The equitable division of property is a three-step process: (1) classify the parties' property as marital or nonmarital, setting aside the nonmarital property to the party who brought that property to the marriage; (2) value the marital assets and marital liabilities of the parties; and (3) calculate and divide the net marital estate between the parties in accordance with the principles contained in this section. Cook v. Cook, 26 Neb. App. 137, 918 N.W.2d 1 (2018).
3. Marital property / separate property
Appreciation, be it active or passive, in the marital interest is always marital; it is simply part of the marital property. Stava v. Stava, 318 Neb. 32, 13 N.W.3d 184 (2024).
The use of marital funds to pay down the mortgage on what was initially separate property acquires the property during the marriage to the extent the principal is paid, creating a proportionate marital interest in that property. Stava v. Stava, 318 Neb. 32, 13 N.W.3d 184 (2024).
When acquisition occurs via payments on the principal of encumbering debt, the marital estate receives not just a refund of the monetary contribution toward the principal of the loan, but also a fair return on its investment, which includes passive appreciation. Stava v. Stava, 318 Neb. 32, 13 N.W.3d 184 (2024).
The active appreciation rule applies to agricultural land, and the owning spouse has the burden to prove the extent to which marital contributions did not cause the appreciation. Parde v. Parde, 313 Neb. 779, 986 N.W.2d 504 (2023).
A party's separate property, while not subject to division in a property settlement, may properly be taken into account when determining alimony. Ainslie v. Ainslie, 249 Neb. 656, 545 N.W.2d 90 (1996).
It was reasonable for the trial court to exclude from the marital property subject to division, property held jointly by the husband and his sister for which there was no evidence of any contribution by the husband and property held jointly by the husband and the parties' son when the evidence showed that the property was placed in joint ownership in order to provide for son's education and future needs. Witcig v. Witcig, 206 Neb. 307, 292 N.W.2d 788 (1980).
When classifying severance pay as marital or nonmarital, a court should determine the purpose of the severance pay. When severance benefits constitute additional compensation for past work during the marriage or a replacement for lost marital pension rights, then the benefits are marital property. However, when severance benefits are compensation for lost postmarital wages, then they are separate nonmarital property. Knapp v. Knapp, 32 Neb. App. 669, 4 N.W.3d 415 (2024).
Prior to the parties' marriage in June 2016, the husband paid various 2016 expenses related to his farming operation. The 2016 crop was harvested during the parties' marriage, and the taxes paid on the 2016 crop were paid jointly by the parties since they filed a joint tax return. The district court did not abuse its discretion when it did not set off the 2016 grain crop to the husband as a premarital asset because both parties bore the risks associated with the 2016 crop and the operating note was paid down with marital funds; there was also some evidence that the wife contributed her labor to the 2016 crop. Novotny v. Novotny, 32 Neb. App. 142, 995 N.W.2d 64 (2023).
The parties separated in March 2021, prior to when the husband planted, sprayed, harvested, and cultivated the 2021 crop. However, the 2021 crop was harvested from the parties' marital farmland and thus, the wife was entitled to a portion of the crop. A portion of the 2021 crop should be allocated to the husband as nonmarital property, based on evidence that he alone contributed to the farming operations postseparation, after which the remaining portion of the 2021 crop should be allocated to the marital estate based on evidence that the crops were grown and harvested as a result of joint marital ownership in the land. Novotny v. Novotny, 32 Neb. App. 142, 995 N.W.2d 64 (2023).
Any given property can constitute a mixture of marital and nonmarital interests; a portion of an asset can be marital property while another portion can be separate property. Ramsey v. Ramsey, 29 Neb. App. 688, 958 N.W.2d 447 (2021).
Generally, all property accumulated and acquired by either spouse during a marriage is part of the marital estate. Exceptions include property that a spouse acquired before the marriage, or by gift or inheritance. Ramsey v. Ramsey, 29 Neb. App. 688, 958 N.W.2d 447 (2021).
Separate property becomes marital property by commingling if it is inextricably mixed with marital property or with the separate property of the other spouse. But if the separate property remains segregated or is traceable into its product, commingling does not occur. The burden of proof rests with the party claiming that property is nonmarital. Ramsey v. Ramsey, 29 Neb. App. 688, 958 N.W.2d 447 (2021).
A workers' compensation award is marital property to the extent it recompenses for the couple's loss of income during the marriage. To the extent that it compensates an employee for loss of premarriage or postdivorce earnings, it is that person's separate property. Gibson-Voss v. Voss, 4 Neb. App. 236, 541 N.W.2d 74 (1995).
4. Debts
Debts incurred after the parties separate, but before they divorce, can be considered marital. Radmanesh v. Radmanesh, 315 Neb. 393, 996 N.W.2d 592 (2023).
Marital debt includes only those obligations incurred during the marriage for the joint benefit of the parties. Radmanesh v. Radmanesh, 315 Neb. 393, 996 N.W.2d 592 (2023).
Student loans incurred on behalf of the parties' children were properly considered a marital debt where there was competing evidence at the trial as to whether the parties agreed to, or at least discussed, incurring the loans for the children during the marriage, and the district court determined that the wife's testimony that the parties agreed to the loans was more credible than the husband's testimony to the contrary. Radmanesh v. Radmanesh, 315 Neb. 393, 996 N.W.2d 592 (2023).
The debts of the parties should be considered in making a property division pursuant to a divorce. While income tax liability incurred during the marriage should generally be treated as marital debt, an innocent spouse who filed separate tax returns and paid taxes in a timely fashion should not be forced to share in the statutory penalties for the late filings of a dilatory spouse. Carter v. Carter, 261 Neb. 881, 626 N.W.2d 576 (2001).
Debts, like property, ought to also be considered in dividing marital property upon dissolution. Ramsey v. Ramsey, 29 Neb. App. 688, 958 N.W.2d 447 (2021).
When one party's nonmarital debt is repaid with marital funds, the value of the debt repayments ought to reduce that party's property award upon dissolution. Ramsey v. Ramsey, 29 Neb. App. 688, 958 N.W.2d 447 (2021).
A marital debt is one incurred during the marriage and before the date of separation by either spouse or both spouses for the joint benefit of the parties. McGuire v. McGuire, 11 Neb. App. 433, 652 N.W.2d 293 (2002).
5. Alimony award
Although the ex-husband will be 70 years old when his alimony obligation terminates, his age was not a reason not to pay alimony where the ex-husband testified that he planned to work through age 70, and other factors supported the award of alimony. Radmanesh v. Radmanesh, 315 Neb. 393, 996 N.W.2d 592 (2023).
The district court did not err in finding that the ex-husband's unemployment in the 6 months preceding the trial was not a reason not to pay alimony where there was evidence that he contemplated his unemployment to suspend the divorce proceedings. Radmanesh v. Radmanesh, 315 Neb. 393, 996 N.W.2d 592 (2023).
The district court did not err in not considering the ex-wife's inheritance when determining alimony because the limited evidence in the record regarding the inheritance did not show that the funds actively generated income or could have been readily accessed or liquidated by the wife, among other things. Radmanesh v. Radmanesh, 315 Neb. 393, 996 N.W.2d 592 (2023).
An alimony award which drives an obligor's net income below the basic subsistence limitation of Neb. Ct. R. section 4-218 of the Nebraska Child Support Guidelines is presumptively an abuse of judicial discretion unless the court specifically finds that conformity with section 4-218 would work an "unjust or inappropriate" result in that particular case. Gress v. Gress, 274 Neb. 686, 743 N.W.2d 67 (2007).
Any alimony award included in a decree entered on or after July 1, 2004, will be governed by the language in this section unless the decree or a written agreement of the parties includes explicit language stating that the death of either party and/or remarriage of the alimony recipient shall not terminate the alimony order. Holm v. Holm, 267 Neb. 867, 678 N.W.2d 499 (2004).
In determining whether alimony should be awarded, the ultimate criterion is one of reasonableness, and the trial court should consider the enumerated factors in this section. Thiltges v. Thiltges, 247 Neb. 371, 527 N.W.2d 853 (1995).
When considering an award of alimony, the need for maintenance is not precluded by a baseline of income or level of employment potential. The ultimate test for determining correctness in the amount of alimony is reasonableness. In awarding alimony, a court should consider the income and earning capacity of each party as well as the general equities of each situation. Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994).
When determining whether to award alimony, a court should consider what effect, if any, the marriage had on the spouses' ability to secure gainful employment in the future and the spouses' earning capacity. When a spouse sacrifices employment seniority for the sake of a marriage, a court may consider that loss of seniority as favoring an award of alimony. Reichert v. Reichert, 246 Neb. 31, 516 N.W.2d 600 (1994).
Alimony is proper when one spouse has earning potential far exceeding the other, who must receive further education 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 of the parties or to punish one of the parties; it may be used to assist the other party during a reasonable time to bridge that period of unavailability for employment or during 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 correctness in the amount of alimony awarded as well as the appropriateness of the division of property is reasonableness as determined by the facts of each case. Busekist v. Busekist, 224 Neb. 510, 398 N.W.2d 722 (1987).
The test for the award of alimony is one of reasonableness as determined by the facts of each case. Ray v. Ray, 222 Neb. 324, 383 N.W.2d 752 (1986).
After looking at the overall circumstances of the parties, the court should attempt, if possible, to provide for the award of alimony for such period of time and under such conditions as would minimize any substantial and unnecessary disruption in the lives of the parties occasioned by reason of the dissolution of the marriage. Pyke v. Pyke, 212 Neb. 114, 321 N.W.2d 906 (1982).
Alimony awards in gross are not excluded from the workings of this section. A provision in a court order which states that certain alimony payments shall be made "until the total alimony award. . . is paid in full" is not an order providing "otherwise." Kingery v. Kingery, 211 Neb. 795, 320 N.W.2d 441 (1982).
Allowances of alimony in the amount of ten thousand dollars annually plus child support of four hundred dollars per month, which would require approximately seventy-five percent of former husband's present net income, were beyond the reasonable reach and capacity of former husband; and considering property division made by the trial court and the circumstances of the parties, such allowances were excessive and represented an abuse of discretion. Petersen v. Petersen, 208 Neb. 1, 301 N.W.2d 592 (1981).
Pursuant to this section, alimony orders may be modified or revoked for good cause shown. Gregg v. Gregg, 31 Neb. App. 417, 980 N.W.2d 906 (2022).
In considering alimony under this section, a court should consider (1) the circumstances of the parties, (2) the duration of the marriage, (3) the history of contributions, and (4) the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of each party. In addition, a court should consider the income and earning capacity of each party and the general equities of the situation. Hamann v. Hamann, 31 Neb. App. 131, 977 N.W.2d 687 (2022).
The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic circumstances make it appropriate. Hamann v. Hamann, 31 Neb. App. 131, 977 N.W.2d 687 (2022).
In addition to the criteria listed in this section, in considering alimony upon a dissolution of marriage, a trial court is to consider the income and earning capacity of each party, as well as the general equities of each situation. The ultimate criterion is one of reasonableness. Montegut v. Mosby-Montegut, 31 Neb. App. 107, 977 N.W.2d 671 (2022).
Alimony should not be used to equalize the incomes of the parties or to punish one of the parties. Patton v. Patton, 20 Neb. App. 51, 818 N.W.2d 624 (2012).
Disparity in income or potential income may partially justify an award of alimony. Patton v. Patton, 20 Neb. App. 51, 818 N.W.2d 624 (2012).
Factors which should be considered by a court in determining alimony include: (1) the circumstances of the parties; (2) the duration of the marriage; (3) the history of contributions to the marriage, including contributions to the care and education of the children, and interruption of personal careers or educational opportunities; and (4) the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of each party. Zoubenko v. Zoubenko, 19 Neb. App. 582, 813 N.W.2d 506 (2012).
The criteria listed in this statute are not an exhaustive list, and the income and earning capacity of each party as well as the general equities of each situation must be considered. Zoubenko v. Zoubenko, 19 Neb. App. 582, 813 N.W.2d 506 (2012).
Although disparity in income or potential income may partially justify an award of alimony, it is error to award alimony under this section if the sole reason for the award of alimony is a disparity in the parties' incomes or potential incomes. Kosiske v. Kosiske, 8 Neb. App. 694, 600 N.W.2d 840 (1999).
6. Modification or revocation
Where the parties have not expressly precluded or limited modification of alimony pursuant to section 42-366(7), an alimony provision that was agreed to by the parties as part of a property settlement agreement may later be modified in accordance with this section. Grothen v. Grothen, 308 Neb. 28, 952 N.W.2d 650 (2020).
In an action to modify a decree of dissolution, it is the decree that was affirmed as modified, from the time it was originally entered, that provides the appropriate frame of reference for the subsequent application to modify. Finney v. Finney, 273 Neb. 436, 730 N.W.2d 351 (2007).
To determine whether there has been a material and substantial change in circumstances warranting modification of a divorce decree, a trial court should compare the financial circumstances of the parties at the time of the divorce decree, or last modification of the decree, with their circumstances at the time the modification at issue was sought, and an intervening appellate decision has no bearing on the analysis. Finney v. Finney, 273 Neb. 436, 730 N.W.2d 351 (2007).
A petition for the modification or termination of alimony shall be denied if the change in financial condition is due to fault or voluntary wastage or dissipation of one's talents and assets. Pope v. Pope, 251 Neb. 773, 559 N.W.2d 192 (1997).
A tax dependency exemption is nearly identical to an award of child support or alimony and is thus capable of being 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 be considered in determining whether alimony should be modified. Northwall v. Northwall, 238 Neb. 76, 469 N.W.2d 136 (1991).
In a proceeding to modify an alimony award, that matter is initially entrusted to the sound discretion of the trial judge, which matter, on appeal, will be reviewed de novo on the record and affirmed in the absence of an abuse of the trial judge's discretion. Kelly v. Kelly, 220 Neb. 441, 370 N.W.2d 161 (1985).
Good cause means a material and substantial change in circumstances and depends upon the circumstances of each case. Creager v. Creager, 219 Neb. 760, 366 N.W.2d 414 (1985).
Good cause for altering alimony provisions in a divorce decree is demonstrated by a material and substantial change of circumstances. An alimony recipient's obtaining employment after the date of the decree is a circumstance that permits the situation of the parties to be reexamined. In dissolution of marriage cases one may in good faith make an occupational change even though that may reduce his ability to meet his financial obligations. Cooper v. Cooper, 219 Neb. 64, 361 N.W.2d 202 (1985).
Material change in circumstances in reference to modification of child support is analogous to modification of alimony for good cause. Morisch v. Morisch, 218 Neb. 412, 355 N.W.2d 784 (1984).
A material change in circumstances, not within the reasonable contemplation of the parties at the time of the alimony award, and not accomplished by the mere passage of time, may constitute good cause to justify modification of the award. Sholl v. Sholl, 216 Neb. 289, 343 N.W.2d 742 (1984).
Where parties recognize that child support payments will terminate when the children reach majority, such termination is not such a change in circumstances as to modify an alimony award. Sloss v. Sloss, 212 Neb. 610, 324 N.W.2d 663 (1982).
An unqualified allowance of alimony in gross made before July 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, and section 42-364, R.R.S.1943, Reissue 1974, amount of support can be 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 to one-half of the value of the property acquired during the twenty-seven-year marriage and the decree is modified accordingly. Chrisp v. Chrisp, 207 Neb. 348, 299 N.W.2d 162 (1980).
Alimony provisions may be modified, even if based upon property settlement agreements, unless the parties or the court provide otherwise in writing. Euler v. Euler, 207 Neb. 4, 295 N.W.2d 397 (1980).
The phrase "good cause" depends upon circumstances of individual case, and finding of its existence lies largely in discretion of officer or court to which decision is committed. Chamberlin v. Chamberlin, 206 Neb. 808, 295 N.W.2d 391 (1980).
Where the only changed circumstances are an increase in the payor spouse's gross income and a relief from debts through bankruptcy, the payor's petition to reduce alimony payments was properly denied. Anderson v. Anderson, 206 Neb. 655, 294 N.W.2d 372 (1980).
Where the decree expressly precludes modification, the award is such a definite and final adjustment of mutual rights and obligations as to be capable of a present vesting and to constitute 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 subject to modification. Falcone v. Falcone, 204 Neb. 800, 285 N.W.2d 694 (1979).
Remarriage of a party will not terminate alimony payments if there is a written agreement between the parties or a court's decree which provides a specific amount of alimony to be paid for a specific time with termination only on the occurrence of the specific event set out in the agreement or decree and otherwise not subject to modification or revision. Watters v. Foreman, 204 Neb. 670, 284 N.W.2d 850 (1979).
An alimony award may be modified if it appears the court abused its discretion in considering the circumstances of the parties and their 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 upon death of either party or remarriage of the wife. Van Bloom v. Van Bloom, 196 Neb. 792, 246 N.W.2d 588 (1976).
Orders for alimony may be modified for good cause shown but nunc pro tunc decree entered without notice is a nullity. Howard v. Howard, 196 Neb. 351, 242 N.W.2d 884 (1976).
Unless amounts have accrued prior to date of service on a petition to modify, orders for alimony may be modified or revoked for good cause shown, but when alimony is not allowed in 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).
Alimony orders may be modified or revoked for good cause shown. Good cause means a material and substantial change in circumstances and depends on the circumstances of each case. Metcalf v. Metcalf, 17 Neb. App. 138, 757 N.W.2d 124 (2008).
Because alimony may be modified only for good cause shown, a petition for modification will be denied if a change in financial condition is due to fault or voluntary wastage or dissipation of one'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 procedural requirements of section 42-352. Osborn v. Osborn, 4 Neb. App. 802, 550 N.W.2d 58 (1996).
7. Specific considerations
The district court did not err in valuing the property of the ex-husband on a date near the divorce filing where he failed to offer evidence at trial of the property's lesser value as of the date of trial. Radmanesh v. Radmanesh, 315 Neb. 393, 996 N.W.2d 592 (2023).
Under this section, a trial court may adjust its equitable division of the marital estate to account for the tax consequences of the parties' filing of separate income tax returns. If a party seeking an equitable adjustment presents the court with the tax disadvantages of filing separate returns, a trial court may consider whether the other party unreasonably refused to file a joint return. Evidence of a tax disadvantage would normally include the parties' calculated joint and separate returns for comparison. Bock v. Dalbey, 283 Neb. 994, 815 N.W.2d 530 (2012).
No matter which party has the larger pension, the value acquired during the marriage should be divided relatively equally, and it would be incongruous to reduce one party's equitable share simply because one has elected to retire early, while the other continues to work. Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006).
Serious health problems experienced by either party may support an award of alimony which does not terminate according to the default provisions of this section. An alimony recipient's inability to work or improve his or her earning capacity is a circumstance which may support an award of alimony which does not terminate according to the default provisions of this section. An obligor spouse's tenuous financial condition or unique economic circumstances may support an award of alimony which does not terminate according to the default provisions of this section. The specific criteria in this section, such as duration of the marriage, contributions to the marriage, and contributions to the care and education of the children, are also circumstances which may support an award of alimony which does 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 aid from the other is one factor a district court may consider in the division of assets and award of alimony in a marital dissolution proceeding. Schaefer v. Schaefer, 263 Neb. 785, 642 N.W.2d 792 (2002).
The division of property and the awarding of alimony in dissolution cases are matters initially entrusted to the discretion of the trial judge. On appeal, such matters will be reviewed de novo on the record and affirmed in the absence of an abuse of discretion. The earning capacity of a spouse operating a business is an element to be considered in determining alimony. Ritz v. Ritz, 229 Neb. 859, 429 N.W.2d 707 (1988).
To be properly within the purview of this section as property divisible and distributable in a dissolution proceeding, goodwill must be a business asset with value independent of the presence or reputation of a particular individual; an asset which may be sold, transferred, conveyed, or pledged. Taylor v. Taylor, 222 Neb. 721, 386 N.W.2d 851 (1986).
The actual earning capacity or ability of a spouse to engage in gainful employment is frequently more important than the profitability of a spouse's business in resolving questions of alimony. Gleason v. Gleason, 218 Neb. 629, 357 N.W.2d 465 (1984).
In making an award of alimony and a division of property the court should not consider the issue of whether the unilateral acts of one party to the marriage led to its irretrievable breakdown. Campbell v. Campbell, 202 Neb. 575, 276 N.W.2d 220 (1979).
Among matters to be considered in making allowance of alimony are the circumstances of the parties, the duration of the marriage, the contributions to the marriage by each party, and the ability of the supported party to engage in gainful employment. Tuttle v. Tuttle, 193 Neb. 397, 227 N.W.2d 27 (1975).
Amount of alimony allowed, considered under rules of this section and circumstances in case, and approved. Casselman v. Casselman, 191 Neb. 138, 214 N.W.2d 278 (1974).
Courts are allowed flexibility in their treatment of stored and growing agricultural crops to account for the equities of the situation. Novotny v. Novotny, 32 Neb. App. 142, 995 N.W.2d 64 (2023).
An anomaly or substantial fluctuation in the income of one party should be considered in determining whether alimony should be awarded and 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 full amount of assets liquidated during the pendency of the divorce, to refuse to consider as debt the unproven balances of certain credit cards, or to opine that certain obligations and awards were in the nature of support and maintenance and therefore nondischargeable in bankruptcy, even though that is a matter properly left to the bankruptcy court. Halouska v. Halouska, 7 Neb. App. 730, 585 N.W.2d 490 (1998).
The fact that property is inherited and therefore excluded from division does not prevent the income it generates from being considered when determining alimony. Ainslie v. Ainslie, 4 Neb. App. 70, 538 N.W.2d 175 (1995).
8. Miscellaneous
"Acquisition" of property can be an ongoing process; it occurs only as it is paid for, as the real value of property is the equity and not the mere legal title. Stava v. Stava, 318 Neb. 32, 13 N.W.3d 184 (2024).
The Nebraska Child Support Guidelines exclude alimony between parents from their total monthly income for the purpose of calculating child support obligations for their children. Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018).
A trial court does not have discretion to compel parties seeking marital dissolution to file a joint income tax return. Bock v. Dalbey, 283 Neb. 994, 815 N.W.2d 530 (2012).
The antiassignment clause of the Social Security Act and the Supremacy Clause of the U.S. Constitution prohibit a direct offset to adjust for disproportionate Social Security benefits in the property division of a dissolution decree. Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006).
This section's language with regard to service of process was not repealed by implication as a result of an amendment to section 25-217, which states that an action is commenced on the date the petition is filed with the court. Only those amounts which have not accrued prior to the date of service of process are subject to modification. A decree under which all rights and obligations have accrued is not subject to modification in any respect. Hamilton v. Hamilton, 242 Neb. 687, 496 N.W.2d 507 (1993).
This section gives guidance to the trial court as to how the property of the parties is to be divided and whether alimony is to be awarded. 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 application to those situations in which, except for section 42-372, R.R.S.1943, Reissue 1978, the court could not otherwise modify or vacate the decree. Howard v. Howard, 207 Neb. 468, 299 N.W.2d 442 (1980).
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 to awards of alimony in gross entered prior to July 6, 1972. Chamberlin v. Chamberlin, 206 Neb. 808, 295 N.W.2d 391 (1980).
A decree that provides that alimony is not terminable, as permitted by this section, creates an unqualified allowance of alimony in gross which is a definite and final adjustment of rights and obligations between the parties capable of present vesting and constituting an absolute judgment. Torrey v. Torrey, 206 Neb. 485, 293 N.W.2d 402 (1980).
Under the no fault divorce statute neither the granting, denial, or reduction of alimony nor the division of property are to be considered as punitive. Ragains v. Ragains, 204 Neb. 50, 281 N.W.2d 516 (1979).
On appeal, judgment modified to allow wife alimony, in addition to settlement award fixed by trial court. Brown v. Brown, 199 Neb. 394, 259 N.W.2d 24 (1977).
A married person's interest in the marital status is not a property right, the state has plenary powers with regard to it, and Nebraska divorce laws are not unconstitutional. Buchholz v. Buchholz, 197 Neb. 180, 248 N.W.2d 21 (1976).
Rule for allowance of alimony and division of property under 1974 statute quoted and prior decision distinguished. Browers v. Browers, 195 Neb. 743, 240 N.W.2d 585 (1976).
Under this section a court may order payment of alimony by one party to the other having regard for the circumstances. Essex v. Essex, 195 Neb. 385, 238 N.W.2d 235 (1976).
Reasonable security for payment of alimony may be required but such remedy should be invoked in the original decree only under compelling circumstances. Wheeler v. Wheeler, 193 Neb. 615, 228 N.W.2d 594 (1975).
The Supreme Court is not necessarily bound by decision under the former law in determining alimony under the no fault divorce law. Barnes v. Barnes, 192 Neb. 295, 220 N.W.2d 22 (1974).
Under the no fault divorce statute, the father and mother of minor children have an equal and joint right to their custody and control, and while the father has the primary responsibility to support his children, the court has the responsibility of adjusting the 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 unreasonable where the trial court made no findings to explain its order forcing the 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 courts are generally without authority to retroactively cancel or reduce such amounts. Mathis v. Mathis, 4 Neb. App. 307, 542 N.W.2d 711 (1996).
(1) To promote the amicable settlement of disputes between the parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written property settlement agreement containing provisions for the maintenance of either of them, the disposition of any property owned by either of them, and the support and custody of minor children.
(2) In a proceeding for dissolution of marriage or for legal separation, the terms of the agreement, except terms providing for the support and custody of minor children, shall be binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.
(3) If the court finds the agreement unconscionable, the court may request the parties to submit a revised agreement or the court may make orders for the disposition of property, support, and maintenance.
(4) If the court finds that the agreement is not unconscionable as to support, maintenance, and property: (a) Unless the agreement provides to the contrary, its terms may be set forth in the decree of dissolution or legal separation and the parties shall be ordered to perform them; or (b) if the agreement provides that its terms shall not be set forth in the decree, the decree shall identify the agreement and shall state that the court has found the terms not unconscionable, and the parties shall be ordered to perform them.
(5) Terms of the agreement set forth in the decree may be enforced by all remedies available for the enforcement of a judgment, including contempt.
(6) Alimony may be ordered in addition to a property settlement award.
(7) Except for terms concerning the custody or support of minor children, the decree may expressly preclude or limit modification of terms set forth in the decree.
(8) If the parties fail to agree upon a property settlement which the court finds to be conscionable, the court shall order an equitable division of the marital estate. The court shall include as part of the marital estate, for purposes of the division of property at the time of dissolution, any pension plans, retirement plans, annuities, and other deferred compensation benefits owned by either party, whether vested or not vested.
Source: Laws 1972, LB 820, § 20; Laws 1980, LB 622, § 2.
Annotations
1. Property settlement agreements
2. Constitutionality
3. Conscionability
4. Pension and similar benefits
5. Miscellaneous
1. Property settlement agreements
Where the parties have not expressly precluded or limited modification of alimony pursuant to subsection (7) of this section, an alimony provision that was agreed to by the parties as part of a property settlement agreement may later be modified in accordance with section 42-365. Grothen v. Grothen, 308 Neb. 28, 952 N.W.2d 650 (2020).
The parties to a marriage may enter into a written settlement agreement to settle disputes attendant upon separation of their marriage, including a dispute over modification of a previous decree. Marcovitz v. Rogers, 276 Neb. 199, 752 N.W.2d 605 (2008).
A decree of dissolution of marriage which approves and incorporates an agreement and stipulation of the parties is not a consent judgment. Chamberlin v. Chamberlin, 206 Neb. 808, 295 N.W.2d 391 (1980).
When a written agreement of the parties specifies that a specific amount of alimony is to be paid and that payments are terminable only by the death or remarriage of the recipient, the district court may not terminate alimony payments unless those conditions are met. Benedict v. Benedict, 206 Neb. 284, 292 N.W.2d 565 (1980).
A party to a property settlement agreement entered into pursuant to this section may not as a matter of right withdraw therefrom prior to approval or disapproval of the agreement by the trial court. Sebesta v. Sebesta, 202 Neb. 624, 277 N.W.2d 49 (1979).
Property settlement agreements are governed by this section and they are favored in the law and will not be set aside unless unconscionable. Paxton v. Paxton, 201 Neb. 545, 270 N.W.2d 900 (1978).
2. Constitutionality
A married person's interest in the marital status is not a property right, the state has plenary powers with regard to it, and Nebraska divorce laws are not unconstitutional. Buchholz v. Buchholz, 197 Neb. 180, 248 N.W.2d 21 (1976).
3. Conscionability
Pursuant to this section, the court has an independent duty to evaluate the terms of an agreement and ensure that they are not unconscionable before incorporating them into a decree. Marcovitz v. Rogers, 276 Neb. 199, 752 N.W.2d 605 (2008).
An agreement between husband and wife, if executed to control the disposition of the marital assets of the parties during a later dissolution action, is a written property settlement within this section, and is binding on the court unless the agreement is found to be unconscionable. Written property settlement found to be unconscionable. Dobesh v. Dobesh, 216 Neb. 196, 342 N.W.2d 669 (1984).
The trial judge may request evidence on the issue of the conscionability of a proposed settlement but is not required to do so. Buker v. Buker, 205 Neb. 571, 288 N.W.2d 732 (1980).
The term "unconscionable" as used in this statute has been interpreted as meaning "manifestly unfair or inequitable." Paxton v. Paxton, 201 Neb. 545, 270 N.W.2d 900 (1978).
Terms of settlement agreement were unconscionable or "manifestly unfair or inequitable" where from total assets of $450,000 wife would receive only life estate in residence, auto, and alimony of $12,100. Weber v. Weber, 200 Neb. 659, 265 N.W.2d 436 (1978).
Voluntary property settlement agreement held binding on both the court and parties in the absence of unconscionable terms. Prochazka v. Prochazka, 198 Neb. 525, 253 N.W.2d 407 (1977).
4. Pension and similar benefits
To the extent employment benefits such as unused sick time, vacation time, and comp time have been earned during the marriage, they constitute deferred compensation benefits under subsection (8) of this section and are considered part of the marital estate subject to equitable division. Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019).
Investment earnings accrued during the marriage on the nonmarital portion of a retirement account may be classified as nonmarital where the party seeking the classification proves: (1) The growth is readily identifiable and traceable to the nonmarital portion of the account and (2) the growth is due solely to inflation, market forces, or guaranteed rate rather than the direct or indirect effort, contribution, or fund management of either spouse. Stanosheck v. Jeanette, 294 Neb. 138, 881 N.W.2d 599 (2016).
Although the actual appreciation or increase in value of a state employee's pension occurred during the marriage, such increase was not due to the efforts or contribution of marital funds by the parties during the marriage, but, rather, was guaranteed prior to the marriage by operation of section 84-1301(17). Therefore, such increase was not marital property. Coufal v. Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015).
In order to determine what portion of a party's retirement account is nonmarital property in a divorce, the court examines to what extent the appreciation in the separate premarital portion of the retirement account was caused by the funds, property, or efforts of either spouse. Coufal v. Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015).
Pursuant to subsection (8) of this section, retirement plans earned during the marriage are to be included in the division of the marital estate. Sitz v. Sitz, 275 Neb. 832, 749 N.W.2d 470 (2008).
Although this section requires that any pension plans, retirement plans, annuities, and other deferred compensation benefits owned by either party be included as part of the marital estate, the plain language of this section does not require that such assets be valued at the time of dissolution. The expression "at the time of dissolution" in subsection (8) of this section qualifies the date at which the marital estate is divided but does not provide that pension-type property must be valued on such date. Hosack v. Hosack, 267 Neb. 934, 678 N.W.2d 746 (2004).
Subsection (8) of this section requires the inclusion of retirement benefits in the marital estate, and such benefits include a future nondisability military pension. Longo v. Longo, 266 Neb. 171, 663 N.W.2d 604 (2003).
Although subsection (8) of this section requires that any pension plans, retirement plans, annuities, and other deferred compensation benefits owned by either party be included as part of the marital estate, the plain language of this section does not require that such included assets be valued at the time of dissolution. The expression "at the time of dissolution" in subsection (8) of this section qualifies the date at which the marital estate is divided but does not provide that pension-type property must be valued on such date. The pension-type property may be valued as of another date that is rationally related to the property. Tyma v. Tyma, 263 Neb. 873, 644 N.W.2d 139 (2002).
A trial court, in the exercise of its broad jurisdiction with regard to approval and enforcement of property settlement agreements under this section, has the power to approve and incorporate into a consent decree a conscionable term in the parties' agreement to divide pension benefits earned by a spouse after the termination of the marriage, even though the trial court has no statutory power to order such a division in a contested case. Hoshor v. Hoshor, 254 Neb. 743, 580 N.W.2d 516 (1998).
Per subsection (8) of this section, in a marriage dissolution, the marital estate includes only that portion of pensions earned during the marriage. Priest v. Priest, 251 Neb. 76, 554 N.W.2d 792 (1996).
Any pension benefits may be considered as marital property, and thus divisible in a dissolution of marriage action, whether or not the pension is vested. Ray v. Ray, 222 Neb. 324, 383 N.W.2d 752 (1986).
In dissolution proceedings the trial court has broad discretion in valuing and dividing pension rights between the parties. Sonntag v. Sonntag, 219 Neb. 583, 365 N.W.2d 411 (1985).
This section requires the court to include any pension and retirement plans in the marital estate. It does not require a pension to be divided between the parties, nor does it require any specific method of valuation. The trial court retains broad discretion in valuing pension rights and dividing such rights between the parties. Rockwood v. Rockwood, 219 Neb. 21, 360 N.W.2d 497 (1985).
As a result of the Uniformed Services Former Spouses Protection Act, nondisability military pensions need no longer be treated differently than nonmilitary pensions. Taylor v. Taylor, 217 Neb. 409, 348 N.W.2d 887 (1984).
Based on the facts of this case, the wife was awarded one-half of the value of property in pension and profit-sharing trusts maintained by her husband's employer. The trial court retains broad discretion in valuing pension rights and in dividing such rights between the parties. Kullbom v. Kullbom, 209 Neb. 145, 306 N.W.2d 844 (1981).
Deferred compensation, including pension plans, retirement plans, and annuities, is property for purposes of determining the marital estate under subsection (8) of this section. Wiech v. Wiech, 23 Neb. App. 370, 871 N.W.2d 570 (2015).
Pursuant to subsection (8) of this section, for purposes of property division, the marital estate includes any pension and retirement plans owned by either party. Ging v. Ging, 18 Neb. App. 145, 775 N.W.2d 479 (2009).
Pursuant to subsection (8) of this section, early retirement incentives that result from employment during the marriage are included in the marital estate. Simon v. Simon, 17 Neb. App. 834, 770 N.W.2d 683 (2009).
A disability pension is a marital asset. John v. John, 1 Neb. App. 947, 511 N.W.2d 544 (1993).
Pension plans shall be included as a part of the marital estate for purposes of the division of property at the time of dissolution; the value of the plan should be determined at the time of the decree. Polly v. Polly, 1 Neb. App. 121, 487 N.W.2d 558 (1992).
5. Miscellaneous
Agreements regarding the custody and support of minor children are not binding on dissolution courts, and child support orders are always subject to modification and review. Windham v. Kroll, 307 Neb. 947, 951 N.W.2d 744 (2020).
Appreciation or income of a nonmarital asset during the marriage is marital insofar as it was caused by the efforts of either spouse or both spouses. Stephens v. Stephens, 297 Neb. 188, 899 N.W.2d 582 (2017).
An agreement between a husband and wife concerning the disposition of their property, not made in connection with the separation of the parties or the dissolution of their marriage, is not binding upon the courts during a later dissolution proceeding. Devney v. Devney, 295 Neb. 15, 886 N.W.2d 61 (2016).
An increase in value in the separate property of a spouse, not attributable in any manner to any contribution of funds, property, or effort by either of the spouses, constitutes separate property. Coufal v. Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015).
In deciding the allocation of a single asset, the division of which is reserved to the court by the parties, a court should not order a distribution of the asset that is inconsistent with a voluntary stipulation entered into by the parties and approved by the court dividing the remainder of the parties' assets. Shearer v. Shearer, 270 Neb. 178, 700 N.W.2d 580 (2005).
The marital estate includes property accumulated and acquired during the marriage through the joint efforts of the parties; with some exceptions, the marital estate does not include property acquired by one of the parties through gift or inheritance. The marital estate includes that portion of a pension which is earned during the marriage. Reichert v. Reichert, 246 Neb. 31, 516 N.W.2d 600 (1994).
Although section 42-364 does not permit a district court in a dissolution action to order child support beyond the age of majority, the district court has the authority to enforce the terms of an approved settlement, which may include an agreement to support a child beyond the age of majority. Zetterman v. Zetterman, 245 Neb. 255, 512 N.W.2d 622 (1994).
In view of evidence concerning the health of the parties, the trial court abused its discretion by precluding modification of alimony awarded in decree of dissolution under subsection (7) of this section. Dinovo v. Dinovo, 238 Neb. 285, 470 N.W.2d 174 (1991).
Alimony provisions may be modified, even if based upon property settlement agreements, unless the parties or the court provide otherwise in writing. Euler v. Euler, 207 Neb. 4, 295 N.W.2d 397 (1980).
Where the decree expressly precludes modification, the award is such a definite and final adjustment of mutual rights and obligations as to be capable of a present vesting and to constitute an absolute judgment. Van Pelt v. Van Pelt, 206 Neb. 350, 292 N.W.2d 917 (1980).
In absence of agreement, court must divide property fairly under circumstances of marriage. Cozette v. Cozette, 196 Neb. 780, 246 N.W.2d 473 (1976).
In an action for dissolution of marriage, agreements between husband and wife, not made in connection with separation or dissolution of marriage, are not binding on the court. Snyder v. Snyder, 196 Neb. 383, 243 N.W.2d 159 (1976).
Except for terms concerning the custody or support of minor children, the decree may expressly preclude or limit modification of terms set forth in the decree. Haug v. Haug, 195 Neb. 377, 238 N.W.2d 455 (1976).
Alimony may be ordered in addition to a property settlement. Magruder v. Magruder, 190 Neb. 573, 209 N.W.2d 585 (1973).
In a dissolution of marriage proceeding, if the parties fail to agree on a property settlement, pursuant to subsection (8) of this section, the court shall order an equitable division of the marital estate. Ging v. Ging, 18 Neb. App. 145, 775 N.W.2d 479 (2009).
A civil contempt order enforcing a settlement agreement is not a final, appealable order where the order does not contain both a finding of contempt and a noncontingent order of sanction. Hammond v. Hammond, 3 Neb. App. 536, 529 N.W.2d 542 (1995).
In every action for dissolution of marriage or legal separation, the court may require the husband to pay any sum necessary to enable the wife to maintain the action during its pendency. When dissolution of marriage or a legal separation is decreed, the court may decree costs against either party and award execution for the same, or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.
Source: Laws 1972, LB 820, § 21.
Annotations
Fees for appraising the family residence and for an expert witness at trial are costs assessable under this section. Lockwood v. Lockwood, 205 Neb. 818, 290 N.W.2d 636 (1980).
Adultery of party will not as a matter of law prevent an award of attorney's fees nor affect the payment of costs. Lockard v. Lockard, 193 Neb. 400, 227 N.W.2d 581 (1975).
Awards of attorney's fees and costs hereunder are discretionary. Sullivan v. Sullivan, 192 Neb. 841, 224 N.W.2d 542 (1975).
A court may direct costs against either party in an action for dissolution of marriage. Barth v. Barth, 22 Neb. App. 241, 851 N.W.2d 104 (2014).
When a legal separation is decreed, the court may order payment of such support by one party to the other as may be reasonable, having regard for the circumstances of the parties 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. Orders for support may be modified or revoked for good cause shown upon notice and hearing, except as to amounts accrued prior to date of service of motion to modify, to which date modification may be retroactive. Orders for child support in cases in which a party has applied for services under Title IV-D of the Social Security Act, as amended, shall be reviewed as provided in sections 43-512.12 to 43-512.18.
Source: Laws 1972, LB 820, § 22; Laws 1991, LB 715, § 2; Laws 1993, LB 523, § 2.
Annotations
The statutory prohibition against modifying a decree at a later time to provide for alimony when not allowed in the original decree applies to a dissolution of marriage, not to a decree of legal separation. Pendleton v. Pendleton, 242 Neb. 675, 496 N.W.2d 499 (1993).
(1) All orders, decrees, or judgments for temporary or permanent support payments, including child, spousal, or medical support, and all orders, decrees, or judgments for alimony or modification of support payments or alimony shall direct the payment of such sums to be made commencing on the first day of each month for the use of the persons for whom the support payments or alimony have been awarded. Such payments shall be made to the clerk of the district court (a) when the order, decree, or judgment is for spousal support, alimony, or maintenance support and the order, decree, or judgment does not also provide for child support, and (b) when the payment constitutes child care or day care expenses, unless payments under subdivision (1)(a) or (1)(b) of this section are ordered to be made directly to the obligee. All other support order payments shall be made to the State Disbursement Unit. In all cases in which income withholding has been implemented pursuant to the Income Withholding for Child Support Act or sections 42-364.01 to 42-364.14, support order payments shall be made to the State Disbursement Unit. The court may order such payment to be in cash or guaranteed funds.
(2)(a) If the party against whom an order, decree, or judgment for child support is entered or the custodial party has health care coverage available to him or her through an employer, organization, or other health care coverage entity which may extend to cover any children affected by the order, decree, or judgment and the health care coverage is accessible to the children and is available to the responsible party at reasonable cost, the court shall require health care coverage to be provided. Health care coverage is accessible if the covered children can obtain services from a plan provider with reasonable effort by the custodial party. When the administrative agency, court, or other tribunal determines that the only health care coverage option available through the noncustodial party is a plan that limits service coverage to providers within a defined geographic area, the administrative agency, court, or other tribunal shall determine whether the child lives within the plan's service area. If the child does not live within the plan's service area, the administrative agency, court, or other tribunal shall determine whether the plan has a reciprocal agreement that permits the child to receive coverage at no greater cost than if the child resided in the plan's service area. The administrative agency, court, or other tribunal shall also determine if primary care is available within thirty minutes or thirty miles of the child's residence. For the purpose of determining the accessibility of health care coverage, the administrative agency, court, or other tribunal may determine and include in an order that longer travel times are permissible if residents, in part or all of the service area, customarily travel distances farther than thirty minutes or thirty miles. If primary care services are not available within these constraints, the health care coverage is presumed inaccessible. If health care coverage is not available or is inaccessible and one or more of the parties are receiving Title IV-D services, then cash medical support shall be ordered. Cash medical support or the cost of health care coverage is considered reasonable in cost if the cost to the party responsible for providing medical support does not exceed the amount set forth in child support guidelines established by the Supreme Court by court rule pursuant to section 42-364.16.
(b) For purposes of this section:
(i) Health care coverage has the same meaning as in section 44-3,144; and
(ii) Cash medical support means an amount ordered to be paid toward the cost of health care coverage provided by a public entity or by another parent through employment or otherwise or for other medical costs not covered by insurance or other health care coverage.
(3) A support order, decree, or judgment may include the providing of necessary shelter, food, clothing, care, medical support as defined in section 43-512, medical attention, expenses of confinement, education expenses, funeral expenses, and any other expense the court may deem reasonable and necessary.
(4) Orders, decrees, and judgments for temporary or permanent support or alimony shall be filed with the clerk of the district court and have the force and effect of judgments when entered. The clerk and the State Disbursement Unit shall disburse all payments received as directed by the court and as provided in sections 42-358.02 and 43-512.07. Records shall be kept of all funds received and disbursed by the clerk and the unit and shall be open to inspection by the parties and their attorneys.
(5) Unless otherwise specified by the court, an equal and proportionate share of any child support awarded shall be presumed to be payable on behalf of each child subject to the order, decree, or judgment for purposes of an assignment under section 43-512.07.
Source: Laws 1972, LB 820, § 23; Laws 1983, LB 371, § 11; Laws 1991, LB 457, § 4; Laws 1993, LB 435, § 1; Laws 2000, LB 972, § 15; Laws 2007, LB554, § 35; Laws 2009, LB288, § 6; Laws 2018, LB702, § 1; Laws 2022, LB922, § 8.
Cross References
Annotations
Under subsection (4) of this section, alimony judgments are liens, and if the judgments precede a mortgage and are recorded, they will have priority over that mortgage. McCook Nat. Bank v. Myers, 243 Neb. 853, 503 N.W.2d 200 (1993).
Because the broader, more general terms contained in subsection (3) of this section preceded the adoption of the Nebraska Child Support Guidelines and the passage of section 42-364.17, the guidelines and section 42-364.17 are construed to control what categories of expenses can be ordered in addition to the monthly child support obligation determined under the guidelines. Kelly v. Kelly, 29 Neb. App. 198, 952 N.W.2d 207 (2020); Smith v. King, 29 Neb. App. 152, 953 N.W.2d 258 (2020).
Section 42-364.17 provides categories of expenses incurred by a child which can be ordered by a trial court in addition to the monthly child support calculation determined under the guidelines. Kelly v. Kelly, 29 Neb. App. 198, 952 N.W.2d 207 (2020).
To construe subsection (3) of this section to require a parent to pay for basic necessities such as shelter, food, and clothing in addition to a monthly child support obligation which has been calculated using the Nebraska Child Support Guidelines basic net income and support calculation, worksheet 1, would make inexplicable what the monthly child support was otherwise intended to cover in terms of a child's needs. Kelly v. Kelly, 29 Neb. App. 198, 952 N.W.2d 207 (2020).
A trial court has the authority to order a parent to pay the categories of expenses specified in section 42-364.17, in addition to the monthly child support obligation calculated under the guidelines. Smith v. King, 29 Neb. App. 152, 953 N.W.2d 258 (2020).
Subsection (4) of this section applied in a situation where the decree is silent with respect to accrued, unpaid temporary child support. Dartmann v. Dartmann, 14 Neb. App. 864, 717 N.W.2d 519 (2006).
Pursuant to subsection (2) of this section, in a divorce case, a judge may not order both parties to provide health insurance for the child or children, but must direct which party shall provide such insurance. Ward v. Ward, 7 Neb. App. 821, 585 N.W.2d 551 (1998).
Expenses incurred in obtaining medical care for a child, including allowances for mileage and meals, may be included in a support order if the court finds such expenses are reasonable and necessary. The expenses cannot be applied retroactively to the application for modification of the order for support. Hoover v. Hoover, 2 Neb. App. 239, 508 N.W.2d 316 (1993).
Nothing in sections 42-347 to 42-381 shall prohibit a party from initiating contempt proceedings. Costs, including a reasonable attorney's fee, may be taxed against a party found to be in contempt.
Source: Laws 1972, LB 820, § 24; Laws 1997, LB 229, § 18.
Annotations
In contempt actions in domestic relations cases, a trial court is authorized to award attorney fees only against a party found to be in contempt under this section or section 42-364.15; or, if a trial court determines the contempt action is frivolous, attorney fees may be awarded under section 25-824. Hawks v. Hawks, 32 Neb. App. 70, 993 N.W.2d 688 (2023).
In a civil contempt proceeding relating to an item in a divorce decree, costs, including a reasonable attorney fee, may be assessed against a contemnor. Locke v. Volkmer, 8 Neb. App. 797, 601 N.W.2d 807 (1999).
Under the Uniform Interstate Family Support Act and sections 42-347 to 42-381, 43-290, 43-512 to 43-512.10, and 43-1401 to 43-1418:
(1)(a) Except as provided in subdivision (1)(b) of this section, all judgments and orders for payment of money shall be liens, as in other actions, upon real property and any personal property registered with any county office and may be enforced or collected by execution and the means authorized for collection of money judgments.
(b) A judgment or order for payment of child support or spousal support creates a lien upon the real or personal property of the judgment debtor which attaches when the payment is due and extinguishes when the payment is made.
(c) For purposes of this section, a current child support or spousal support order payment history from the Title IV-D Division of the Department of Health and Human Services or spousal support order payment history from the clerk of the district court setting forth evidence that all support payments are current, and have been made as ordered for the previous twelve-month period or the total length of time the order has been in effect, whichever is shorter, is prima facie evidence that such payments are in fact current and such evidence operates to release the lien described in subdivision (1)(b) of this section for purposes of transferring a specific parcel of real property;
(2) The judgment creditor may execute a partial or total release of the judgment or a document subordinating the lien of the judgment to any other lien, generally or on specific real or personal property.
Release of a judgment for child support or spousal support or subordination of a lien of a judgment for child support or spousal support may, if all such payments are current and not delinquent or in arrears, be released or subordinated by a release or subordination document executed by the judgment creditor, and such document shall be sufficient to remove or subordinate the lien. A properly executed, notarized release or subordination document explicitly reciting that all child support payments or spousal support payments are current is prima facie evidence that such payments are in fact current. For purposes of this section, any delinquency or arrearage of support payments shall be determined as provided in subsection (2) of section 42-358.02;
(3) If a judgment creditor refuses to execute a release of the judgment or subordination of a lien as provided in subdivision (2) of this section or the support payments are not current, the person desiring such release or subordination may file an application for the relief desired in the court which rendered the original judgment. A copy of the application and a notice of hearing shall be served on the judgment creditor either personally or by registered or certified mail no later than ten days before the date of hearing. If the court finds that the release or subordination is not requested for the purpose of avoiding payment and that the release or subordination will not unduly reduce the security, the court may issue an order releasing real or personal property from the judgment lien or issue an order subordinating the judgment lien. As a condition for such release or subordination, the court may require the posting of a bond with the clerk in an amount fixed by the court, guaranteeing payment of the judgment. If the court orders a release or subordination, the court may order a judgment creditor who, without a good faith reason, refused to execute a release or subordination to pay the judgment debtor's court costs and attorney's fees involved with the application brought under this subdivision. A showing that all support payments are current shall be evidence that the judgment creditor did not have a good faith reason to refuse to execute such release or subordination. For purposes of this section, a current certified copy of support order payment history from the Title IV-D Division of the Department of Health and Human Services setting forth evidence that all support payments are current is prima facie evidence that such payments are in fact current and is valid for thirty days after the date of certification;
(4) Full faith and credit shall be accorded to a lien arising by operation of law against real and personal property for amounts overdue relating to a support order owed by a judgment debtor or obligor who resides or owns property in this state when another state agency, party, or other entity seeking to enforce such lien complies with the procedural rules relating to the filing of the lien in this state. The state agency, party, or other entity seeking to enforce such lien shall send a certified copy of the support order with all modifications, the notice of lien prescribed by 42 U.S.C. 652(a)(11) and 42 U.S.C. 654(9)(E), and the appropriate fee to the clerk of the district court in the jurisdiction within this state in which the lien is sought. Upon receiving the appropriate documents and fee, the clerk of the district court shall accept the documents filed and such acceptance shall constitute entry of the foreign support order for purposes of this section only. Entry of a lien arising in another state pursuant to this section shall result in such lien being afforded the same treatment as liens arising in this state. The filing process required by this section shall not be construed as requiring an application, complaint, answer, and hearing as might be required for the filing or registration of foreign judgments under the Nebraska Uniform Enforcement of Foreign Judgments Act or the Uniform Interstate Family Support Act;
(5) Support order judgments shall cease to be liens on real or registered personal property ten years from the date (a) the youngest child becomes of age or dies or (b) the most recent execution was issued to collect the judgment, whichever is later, and such lien shall not be reinstated;
(6) Alimony and property settlement award judgments, if not covered by subdivision (5) of this section, shall cease to be a lien on real or registered personal property ten years from the date (a) the judgment was entered, (b) the most recent payment was made, or (c) the most recent execution was issued to collect the judgment, whichever is latest, and such lien shall not be reinstated;
(7) The court may in any case, upon application or its own motion, after notice and hearing, order a person required to make payments to post sufficient security, bond, or other guarantee with the clerk to insure payment of both current and any delinquent amounts. Upon failure to comply with the order, the court may also appoint a receiver to take charge of the debtor's property to insure payment. Any bond, security, or other guarantee paid in cash may, when the court deems it appropriate, be applied either to current payments or to reduce any accumulated arrearage;
(8)(a) The lien of a mortgage or deed of trust which secures a loan, the proceeds of which are used to purchase real property, and (b) any lien given priority pursuant to a subordination document under this section shall attach prior to any lien authorized by this section. Any mortgage or deed of trust which secures the refinancing, renewal, or extension of a real property purchase money mortgage or deed of trust shall have the same lien priority with respect to any lien authorized by this section as the original real property purchase money mortgage or deed of trust to the extent that the amount of the loan refinanced, renewed, or extended does not exceed the amount used to pay the principal and interest on the existing real property purchase money mortgage or deed of trust, plus the costs of the refinancing, renewal, or extension; and
(9) Any lien authorized by this section against personal property registered with any county consisting of a motor vehicle or mobile home shall attach upon notation of the lien against the motor vehicle or mobile home certificate of title and shall have its priority established pursuant to the terms of section 60-164 or a subordination document executed under this section.
Source: Laws 1972, LB 820, § 25; Laws 1975, LB 212, § 2; Laws 1980, LB 622, § 3; Laws 1985, Second Spec. Sess., LB 7, § 19; Laws 1986, LB 600, § 9; Laws 1991, LB 715, § 3; Laws 1993, LB 500, § 52; Laws 1993, LB 523, § 3; Laws 1994, LB 1224, § 47; Laws 1997, LB 229, § 19; Laws 1999, LB 594, § 7; Laws 2004, LB 1207, § 29; Laws 2005, LB 276, § 100; Laws 2007, LB554, § 36; Laws 2008, LB1014, § 35; Laws 2011, LB673, § 1; Laws 2026, LB935, § 38.
Operative date: 2026-07-18.
Cross References
Annotations
1. Applicability of section
2. Authority of court
3. Lien
4. Miscellaneous
1. Applicability of section
This section is applicable to monetary property settlement judgments. Lacey v. Lacey, 215 Neb. 162, 337 N.W.2d 740 (1983).
This section refers to judgment creditors for support in cases of legal separation, judgment creditors for temporary or permanent support payments or alimony, judgment creditors for child support, and judgment creditors for alimony. Grosvenor v. Grosvenor, 206 Neb. 395, 293 N.W.2d 96 (1980).
In the absence of any evidence that a person ordered to pay child support was materially prejudiced by delay in assertion of claim for child support, remarriage of the parties did not operate to prohibit the party for whose benefit child support was ordered following the first divorce from instituting action following the second divorce to collect arrearages for child support due between date of the first divorce and subsequent remarriage. Scheibel v. Scheibel, 204 Neb. 653, 284 N.W.2d 572 (1979).
2. Authority of court
Under subsection (6) of this section, a court has discretion to require reasonable security for an obligor's current or delinquent support obligations when compelling circumstances require it. Davis v. Davis, 275 Neb. 944, 750 N.W.2d 696 (2008).
An order entered pursuant to subsection (5) of this section, requiring a person to post sufficient security, is a somewhat extraordinary and drastic remedy, and such order should be invoked only when compelling circumstances require it. Klinginsmith v. Wichmann, 252 Neb. 889, 567 N.W.2d 172 (1997).
Child support payments are a vested property right of the payee as each accrues, and a court, therefore, may not forgive or modify past-due child support, but may modify the amount of future payments. Berg v. Berg, 238 Neb. 527, 471 N.W.2d 435 (1991).
This section gives to a court which has entered a judgment for property division payable in installments, authority to release or subordinate the judgment under the conditions prescribed in the statute. Grosvenor v. Grosvenor, 206 Neb. 395, 293 N.W.2d 96 (1980).
An order requiring security to be given and appointing a receiver are somewhat extraordinary and drastic measures and such an order should be made only when it appears to the court that such an order is necessary to assure the payment of alimony and child support as decreed. Casselman v. Casselman, 204 Neb. 565, 284 N.W.2d 7 (1979).
It is not the court's prerogative to determine what method or means should be used in placing security for child support payment. Casselman v. Casselman, 204 Neb. 565, 284 N.W.2d 7 (1979).
3. Lien
An appearance bond deposited by the defendant into the court registry to secure the defendant's appearance in a criminal proceeding was not personal property registered with a county office, within the meaning of the statute creating a lien on personal property of a child support obligor registered with a county office; statute limited personal property subject to lien for unpaid child support as tangible goods and chattels, and money was neither good nor chattel, but, rather, was intangible property. State v. McColery, 301 Neb. 516, 919 N.W.2d 153 (2018).
Under this section, all orders and judgments for child support in the specified proceedings operate as statutory liens. Such liens attach from the date of the judgment to the obligor's real property and any personal property registered with any county officer, for arrears and as security for future obligations. Fox v. Whitbeck, 286 Neb. 134, 835 N.W.2d 638 (2013).
Child support judgments do not become dormant by lapse of time, and the fact that a child support judgment ceases to be a lien by operation of subsection (5) of this section does not extinguish the judgment itself or cause it to become dormant. Fox v. Whitbeck, 280 Neb. 75, 783 N.W.2d 774 (2010).
Alimony judgments are liens, and if the judgments precede a mortgage and are recorded, they will have priority over that mortgage. McCook Nat. Bank v. Myers, 243 Neb. 853, 503 N.W.2d 200 (1993).
A judgment is not a lien upon the judgment debtor's equitable interest in real estate until the commencement of the creditor's bill to subject it to payment of the judgment or until execution is levied upon the interest of a judgment debtor who is in possession of the real estate in which he has the equitable interest. Action Realty Co., Inc. v. Miller, 191 Neb. 381, 215 N.W.2d 629 (1974).
Pursuant to subsection (2) of this section, the cessation of a lien under this section does not render a child support judgment dormant. Freis v. Harvey, 5 Neb. App. 679, 563 N.W.2d 363 (1997).
4. Miscellaneous
An income withholding notice issued by the Nebraska Department of Health and Human Services pursuant to the Income Withholding for Child Support Act is not an "execution" within the meaning of subsection (5) of this section. Fox v. Whitbeck, 280 Neb. 75, 783 N.W.2d 774 (2010).
Fees awarded under this section are the property of the client, not the attorney, and the client may execute a release of the judgment awarding fees. Barber v. Barber, 207 Neb. 101, 296 N.W.2d 463 (1980).
(1) An obligor's duty to pay child support for a child terminates when (a) the child reaches nineteen years of age, (b) the child marries, (c) the child dies, or (d) the child is emancipated by a court of competent jurisdiction, unless the court order for child support specifically extends child support after such circumstances.
(2) The termination of child support does not relieve the obligor from the duty to pay any unpaid child support obligations owed or in arrears.
(3) The obligor may provide written application for termination of a child support order when the child being supported reaches nineteen years of age, marries, dies, or is otherwise emancipated. The application shall be filed with the clerk of the district court where child support was ordered. A certified copy of the birth certificate, marriage license, death certificate, or court order of emancipation or an abstract of marriage or abstract of death as defined in section 71-601.01 shall accompany the application for termination of the child support. The clerk of the district court shall send notice of the filing of the child support termination application to the last-known address of the obligee. The notice shall inform the obligee that if he or she does not file a written objection within thirty days after the date the notice was mailed, child support may be terminated without further notice. The court shall terminate child support if no written objection has been filed within thirty days after the date the clerk's notice to the obligee was mailed, the forms and procedures have been complied with, and the court believes that a hearing on the matter is not required.
(4) The State Court Administrator shall develop uniform procedures and forms to be used to terminate child support.
Source: Laws 1997, LB 58, § 1; Laws 2000, LB 972, § 16; Laws 2006, LB 1115, § 30; Laws 2024, LB1215, § 19.
Annotations
The enactment of this section in 1997 delineating the circumstances for terminating child support obligations is not tantamount to a material change in circumstances justifying modification of a child support award. Reinsch v. Reinsch, 259 Neb. 564, 611 N.W.2d 86 (2000).
The filing of a deficient application under this section will not trigger a duty on the part of the obligee to file a corresponding objection. Cain v. Cain, 16 Neb. App. 117, 741 N.W.2d 448 (2007).
This section permits the district court, under specified circumstances, to enter a summary order of termination of child support in the absence of an objection by the obligee. Cain v. Cain, 16 Neb. App. 117, 741 N.W.2d 448 (2007).
It is the public policy and statutory law of this state that child support obligations should be paid until the child reaches the age of 19. Reinsch v. Reinsch, 8 Neb. App. 852, 602 N.W.2d 261 (1999).
(1) A decree dissolving a marriage becomes final and operative, except for the purpose of review by appeal, at the time specified in section 42-372.01.
(2) For the purpose of review by appeal, the decree shall be treated as a final order as soon as it is entered. If an appeal is instituted that does not challenge the finding that the marriage is irretrievably broken, then the decree shall become final and operative, as to that portion of the decree that dissolves the marriage, at the time specified in section 42-372.01 as if no such appeal had been instituted. If an appeal is instituted within thirty days after the date the decree is entered that challenges the finding that the marriage is irretrievably broken, such decree does not become final until such proceedings are finally determined or the date of death of one of the parties to the dissolution, whichever occurs first.
Source: Laws 1972, LB 820, § 26; Laws 1986, LB 600, § 10; Laws 1987, LB 33, § 8; Laws 1995, LB 544, § 1; Laws 1997, LB 77, § 1; Laws 2000, LB 921, § 33.
Annotations
1. Modification or vacation of decree
2. Miscellaneous
1. Modification or vacation of decree
Modification of a dissolution decree during the 6-month interlocutory period pursuant to this section can be made only upon good cause shown after notice to all interested parties and hearing. McAllister v. McAllister, 228 Neb. 314, 422 N.W.2d 345 (1988); Neujahr v. Neujahr, 218 Neb. 585, 357 N.W.2d 219 (1984); Norris v. Norris, 2 Neb. App. 570, 512 N.W.2d 407 (1994).
Upon a motion containing an allegation of fact which, if true, constitutes good cause to set aside or modify a decree dissolving a marriage, a court must grant an evidentiary hearing on the motion to set aside or modify the dissolution decree. Younkin v. Younkin, 221 Neb. 134, 375 N.W.2d 894 (1985).
During the six-month period following a dissolution of marriage decree, the action is still pending, and the court can at any time, for good reason, vacate or modify it. During the entire pendency of a dissolution of marriage decree, the marital relation continues. Choat v. Choat, 218 Neb. 875, 359 N.W.2d 810 (1984).
Property settlement agreement entered into by parties to a dissolution of marriage may be vacated or modified if one of the spouses withheld information from the court, thus preventing the court from carrying out its function of approving or disapproving the agreement. Colson v. Colson, 215 Neb. 452, 339 N.W.2d 280 (1983).
Section 42-372, R.R.S.1943, Reissue 1978, allows a modification within the six months before the decree is final to provide for alimony where none was awarded in the final decree. Section 42-365, R.R.S.1943, Reissue 1978, is limited in its application to those situations in which, except for this statute, the court could not otherwise modify or vacate the decree. Howard v. Howard, 207 Neb. 468, 299 N.W.2d 442 (1980).
Where a party to a divorce action, represented by counsel, voluntarily executes a property settlement agreement which is approved by the court and incorporated in a divorce decree from which no appeal is taken ordinarily the decree will not be vacated or modified as to property provisions in absence of fraud or gross inequity. Klabunde v. Klabunde, 194 Neb. 681, 234 N.W.2d 837 (1975).
The power of the district court to modify or vacate a decree of marriage dissolution hereunder within six months of the entry of the decree does not exist after appellant has suffered an involuntary dismissal of appeal. Dewey v. Dewey, 193 Neb. 236, 226 N.W.2d 751 (1975), 192 Neb. 676, 223 N.W.2d 826 (1974).
Proceedings to modify a divorce decree during the 6-month period following a dissolution of marriage decree may continue and be finally decided after the 6-month period, so long as the original request was filed within the 6-month period. Novak v. Novak, 2 Neb. App. 21, 508 N.W.2d 283 (1993).
2. Miscellaneous
Under former law, in Nebraska, a divorce becomes final six months after it is entered; during this six-month waiting period, the matrimonial tie between the parties is not dissolved. Watts v. Watts, 250 Neb. 38, 547 N.W.2d 466 (1996).
In an alienation of affections case, evidence regarding the defendant's income during the six-month period following the plaintiff's divorce decree was relevant and admissible under the circumstances of this case. Vacek v. Ames, 221 Neb. 333, 377 N.W.2d 86 (1985).
A motion authorized by this section, when appealed to this court, is not subject to review de novo on the record but, rather, is limited to an appeal of the action for dissolution itself. The granting or denying of a motion to set aside a decree of dissolution is within the sound discretion of the trial court, and any actions taken with respect thereto by that court will not be disturbed on appeal absent an abuse of discretion. Puetz v. Puetz, 211 Neb. 674, 319 N.W.2d 761 (1982).
The control of a divorce decree during the six-month period pending finality is within the sound judicial discretion of the trial court. Miller v. Miller, 190 Neb. 816, 212 N.W.2d 646 (1973).
Statute postpones dissolution until the decree becomes final; during six-month waiting period parties remain legally married. Under former law, wife was lawful spouse at time of death of insured and as his widow was entitled to the proceeds of insurance policy. Prudential Ins. Co. of America v. Dulek, 504 F.Supp. 1015 (D. Neb. 1980).
(1) Except for purposes of appeal as prescribed in section 42-372, for purposes of remarriage as prescribed in subsection (2) of this section, and for purposes of continuation of health insurance coverage as prescribed in subsection (3) of this section, a decree dissolving a marriage becomes final and operative thirty days after the decree is entered or on the date of death of one of the parties to the dissolution, whichever occurs first. If the decree becomes final and operative upon the date of death of one of the parties to the dissolution, the decree shall be treated as if it became final and operative the date it was entered.
(2) For purposes of remarriage other than remarriage between the parties, a decree dissolving a marriage becomes final and operative six months after the decree is entered or on the date of death of one of the parties to the dissolution, whichever occurs first. If the decree becomes final and operative upon the date of death of one of the parties to the dissolution, the decree shall be treated as if it became final and operative the date it was entered.
(3) For purposes of continuation of health insurance coverage, a decree dissolving a marriage becomes final and operative six months after the decree is entered.
(4) A decree dissolving a marriage rendered prior to September 9, 1995, which is not final and operative becomes operative pursuant to the provisions of section 42-372 as such section existed immediately preceding September 9, 1995.
Source: Laws 1995, LB 544, § 2; Laws 1997, LB 434, § 1; Laws 2000, LB 921, § 34.
(1) When a decree of dissolution of marriage assigns real estate to either party, the party to whom the real estate is assigned may (a) prepare and file with the clerk of the district court an affidavit identifying the real estate by legal description and affirmatively identifying the person entitled to the real estate and (b) prepare for signature and seal by the clerk one or more certificates in a form substantially similar to the following:
(2) A certificate may include more than one parcel of real estate, but there shall be separate certificates for each party to whom real estate is assigned and separate certificates for each county in which real estate is located. The certificate or certificates shall be delivered by the clerk to the person applying for the same, and such person shall be responsible for recording the certificate or certificates with the register of deeds in the appropriate county or counties as provided in section 76-248.01.
Source: Laws 2005, LB 361, § 23; Laws 2018, LB193, § 77.
A legal separation decree shall provide that in case of a reconciliation at any time thereafter, the parties may apply to set aside the decree. Upon such application, the court shall set aside the decree and make such orders as are just and reasonable under the circumstances.
Source: Laws 2007, LB132, § 1.
Actions for annulment of a marriage shall be brought in the same manner as actions for dissolution of marriage and shall be subject to all applicable provisions of sections 42-347 to 42-381 pertaining to dissolution of marriage, except that the only residence requirement shall be that the plaintiff is an actual resident of the county in which the complaint is filed.
Source: Laws 1972, LB 820, § 27; Laws 1997, LB 229, § 20; Laws 2004, LB 1207, § 30.
A marriage may be annulled for any of the following causes:
(1) The marriage between the parties is prohibited by law;
(2) Either party is impotent at the time of marriage;
(3) Either party had a spouse living at the time of marriage; or
(4) Force or fraud.
Source: Laws 1972, LB 820, § 28; Laws 1989, LB 23, § 2; Laws 2013, LB23, § 9.
Cross References
Annotations
An annulment will be granted only when one or more of the grounds enumerated herein is present. Guggenmos v. Guggenmos, 218 Neb. 746, 359 N.W.2d 87 (1984).
Annulment actions on behalf of persons under disability may be brought by a parent or adult next friend. An annulment may not be decreed if the marriage is found to be voidable and the parties freely cohabited after the ground for annulment has terminated or become known to the innocent party.
Source: Laws 1972, LB 820, § 29.
When the validity of a marriage is doubted, either party may file a complaint and the court shall decree it annulled or affirmed according to the proof. Notice shall be given the other party as in the case of a complaint for dissolution of marriage.
Source: Laws 1972, LB 820, § 30; Laws 2004, LB 1207, § 31.
Children born to the parties, or to either spouse, in a marriage relationship which may be dissolved or annulled pursuant to sections 42-347 to 42-381 shall be legitimate unless otherwise decreed by the court, and in every case the legitimacy of all children conceived before the commencement of the suit shall be presumed until the contrary is shown.
Source: Laws 1972, LB 820, § 31; Laws 1997, LB 229, § 21; Laws 2019, LB427, § 1.
Annotations
The presumption favoring legitimacy of children may only be rebutted by clear and convincing evidence beyond the testimony of husband or wife denying child's legitimacy. Perkins v. Perkins, 198 Neb. 401, 253 N.W.2d 42 (1977).
Presumed legitimacy of children born in wedlock may not be rebutted by the testimony or declaration of a parent. Ford v. Ford, 191 Neb. 548, 216 N.W.2d 176 (1974).
This section does not create an irrebuttable presumption of legitimacy in the case of children conceived before the commencement of the dissolution action. Cavanaugh v. deBaudiniere, 1 Neb. App. 204, 493 N.W.2d 197 (1992).
When the court finds that a party entered into the contract of marriage in good faith supposing the other to be capable of contracting, and the marriage is declared a nullity, such fact shall be entered in the decree and the court may order such innocent party compensated as in the case of dissolution of marriage, including an award for costs and attorney fees.
Source: Laws 1972, LB 820, § 32.
Annotations
This section does not apply merely because a party believes that he or she is validly married or has a subjective desire to be married; rather, the parties must enter into the contract of marriage. Seivert v. Alli, 309 Neb. 246, 959 N.W.2d 777 (2021).
This section is not applicable and does not provide a legal basis for property division and award of alimony when the parties' marriage is valid during its duration and never void or voidable. Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522 (2002).
This section applies when one or both of the parties are innocent. A party claiming good faith under this section cannot close his or her eyes to suspicious circumstances; however, attending a divorce hearing does not trigger a duty to inquire as to the date on which the divorce will become final. Under this section, good faith means an honest and reasonable belief that the marriage was valid at the time of the ceremony. Whether a party acted in good faith depends on the facts and circumstances of the case. Good faith is presumed; the burden of proof rests squarely on the party charging bad faith. Good faith may result either from an error of fact or from an error of law. Hicklin v. Hicklin, 244 Neb. 895, 509 N.W.2d 627 (1994).
This section protects a party who has entered into the contract of marriage in good faith supposing the other party to be capable of marrying and the marriage is declared a nullity. Randall v. Randall, 216 Neb. 541, 345 N.W.2d 319 (1984).
Repealed. Laws 1997, LB 229, § 46.
(1) When a pleading is filed pursuant to section 42-353 or pursuant to an action for annulment as authorized by section 42-373, either the plaintiff or the defendant may include a request to restore his or her former name. The court shall grant such request except for good cause shown. The mere fact that a parent and child may have different surnames following a dissolution of marriage or annulment shall not be sufficient to constitute good cause. The decree of dissolution or declaration of annulment shall specifically provide for the name change, giving both the old name and the name as it will be after the decree or declaration. A change of name granted pursuant to this section shall become effective on the same date that the decree of dissolution or declaration of annulment, as the case may be, is entered. The requirements of sections 25-21,270 to 25-21,273 shall not apply to this section.
(2) A decree of dissolution or declaration of annulment entered before August 25, 1989, in an action in which a request for name restoration was not included or granted shall not hinder or prevent the petitioner or respondent from effecting a common-law name change.
Source: Laws 1989, LB 401, § 1; Laws 2004, LB 1207, § 32.
In any final decree or decree of modification in an action for dissolution of marriage, declaration concerning the validity of a marriage, legal separation, or declaration of paternity, regardless of the determination of the court relating to the custody of a minor child, (1) each parent shall continue to have full and equal access to the education and medical records of his or her child unless the court orders to the contrary and (2) either parent may make emergency decisions affecting the health or safety of his or her child while the child is in the physical custody of such parent.
Source: Laws 1993, LB 500, § 58.
Repealed. Laws 1999, LB 1, § 1.
Repealed. Laws 2002, LB 1062, § 72.
Repealed. Laws 2002, LB 1062, § 72.
Repealed. Laws 2002, LB 1062, § 72.
Repealed. Laws 2002, LB 1062, § 72.
Repealed. Laws 1999, LB 8, § 4.
Whenever any man and woman, either of whom is whole or in part of Indian blood, shall have cohabited together as husband and wife according to the customs and manners of Indian life, the issue of such cohabitation shall be taken and deemed to be the legitimate issue of such persons so living together, notwithstanding the fact that the father and mother may have been divorced or separated according to Indian customs, or otherwise, and married to other persons, according to Indian custom, or otherwise.
Source: Laws 1913, c. 68, § 2, p. 201; R.S.1913, § 1608; C.S.1922, § 1557; C.S.1929, § 42-402; R.S.1943, § 42-402.
Marriages and divorces consummated on or after April 8, 1913, among such Indians, or among their descendants, according to Indian custom, are hereby declared to be unlawful and shall be punished as hereinafter provided.
Source: Laws 1913, c. 68, § 3, p. 202; R.S.1913, § 1609; C.S.1922, § 1558; C.S.1929, § 42-403; R.S.1943, § 42-403.
Such Indians and their descendants shall procure marriage licenses and have their marriages solemnized and returns thereof made in the manner as provided by the laws of this state for the making of marriage contracts.
Source: Laws 1913, c. 68, § 4, p. 202; R.S.1913, § 1610; C.S.1922, § 1559; C.S.1929, § 42-404; R.S.1943, § 42-404; Laws 1989, LB 80, § 1.
Such Indians and their descendants may obtain divorces in the manner and for the causes provided in the statutes of this state, and not otherwise.
Source: Laws 1913, c. 68, § 5, p. 202; R.S.1913, § 1611; C.S.1922, § 1560; C.S.1929, § 42-405; R.S.1943, § 42-405.
If any Indian who is married according to the provisions of sections 42-402 to 42-404 shall, while his or her husband or wife is living, be married to another person, either in legal form or according to Indian custom, he or she shall be guilty of bigamy and shall be punished therefor as provided by law.
Source: Laws 1913, c. 68, § 6, p. 202; R.S.1913, § 1612; C.S.1922, § 1561; C.S.1929, § 42-406; R.S.1943, § 42-406; Laws 1999, LB 8, § 1.
Cross References
The record of Indian marriages made by the county judge pursuant to Laws 1913, Chapter 68, section 7, and certified copies thereof, shall be legal and competent evidence in all proceedings of the facts therein authorized to be stated.
Source: Laws 1913, c. 68, § 7, p. 202; R.S.1913, § 1613; C.S.1922, § 1562; C.S.1929, § 42-407; R.S.1943, § 42-407.
Nothing in sections 42-402 to 42-407 shall be construed to constitute a legal separation of a prior legal marriage according to the laws of this state wherein a license was secured and a ceremony performed by some person empowered by law to perform such marriage ceremony of any Indian of whole or mixed blood residing in the state.
Source: Laws 1913, c. 68, § 8, p. 203; R.S.1913, § 1614; C.S.1922, § 1563; C.S.1929, § 42-408; R.S.1943, § 42-408; Laws 1999, LB 8, § 2.
When either husband or wife is mentally incompetent and incapable of executing a mortgage relinquishing or encumbering his or her right to the homestead or any other real property of the other, the other may file a complaint in the district court of the county of his or her residence or of the county where the real estate to be encumbered is situated setting forth the facts and praying for an order authorizing the applicant or some other person to execute a mortgage and relinquish or encumber by such mortgage the interest of the mentally incompetent person in such homestead or other real estate. The court shall not authorize the execution of any mortgage on the homestead of the parties for an amount greater than is necessary to pay or redeem the lien of an existing mortgage on such homestead.
Source: Laws 1927, c. 66, § 1, p. 229; C.S.1929, § 42-501; Laws 1935, c. 93, § 1, p. 315; C.S.Supp.,1941, § 42-501; R.S.1943, § 42-501; Laws 1986, LB 1177, § 15; Laws 2004, LB 1207, § 33.
The complaint shall be verified by the plaintiff and filed in the office of the clerk of the district court of the proper county. A copy thereof, with the notice of the time at which such application will be heard by the court, shall be served personally upon the mentally incompetent person in the same manner in which a summons is served at least ten days prior to the time fixed for such hearing. Upon completed service, the court shall appoint some responsible attorney thereof guardian ad litem for the person alleged to be mentally incompetent, who shall ascertain the propriety, good faith, and necessity of the prayer of the plaintiff and may resist the application by making any legal or equitable defense thereto. The guardian ad litem shall be allowed by the court a reasonable compensation to be paid as are the other costs.
Source: Laws 1927, c. 66, § 2, p. 229; C.S.1929, § 42-502; R.S.1943, § 42-502; Laws 1986, LB 1177, § 16; Laws 2004, LB 1207, § 34.
Upon the hearing of the complaint, if the court is satisfied that it is made in good faith by the plaintiff, that he or she or some other person selected by the court is a proper person to exercise the power and make the mortgage, and that it is necessary and proper, the court shall enter a decree authorizing the execution of a mortgage for and in the name of such mentally incompetent husband or wife by the plaintiff or such other person as the court may appoint.
Source: Laws 1927, c. 66, § 3, p. 229; C.S.1929, § 42-503; R.S.1943, § 42-503; Laws 1986, LB 1177, § 17; Laws 2004, LB 1207, § 35.
Repealed. Laws 1961, c. 284, § 1.
Repealed. Laws 1949, c. 129, § 6.
Repealed. Laws 1949, c. 129, § 6.
Property acquired, as defined in section 42-617, shall not be regarded as community property unless the contrary be satisfactorily proved.
Source: Laws 1947, c. 156, § 3, p. 427; Laws 1949, c. 129, § 2, p. 337.
Annotations
Declaratory judgment seeking to declare Community Property Act unconstitutional was dismissed because of lack of proper parties and justiciable issues. Miller v. Stolinski, 149 Neb. 679, 32 N.W.2d 199 (1948).
Repealed. Laws 1949, c. 129, § 6.
Repealed. Laws 1949, c. 129, § 6.
Repealed. Laws 1949, c. 129, § 6.
Repealed. Laws 1949, c. 129, § 6.
Repealed. Laws 1949, c. 129, § 6.
Repealed. Laws 1949, c. 129, § 6.
Repealed. Laws 1949, c. 129, § 6.
Repealed. Laws 1949, c. 129, § 6.
Repealed. Laws 1949, c. 129, § 6.
Repealed. Laws 1949, c. 129, § 6.
Repealed. Laws 1949, c. 129, § 6.
Repealed. Laws 1949, c. 129, § 6.
Repealed. Laws 1949, c. 129, § 6.
As used in sections 42-603 and 42-617 to 42-620, the words property acquired shall mean (1) all property acquired by either husband or wife, or both, during marriage, and on and after September 7, 1947, and prior to April 20, 1949, and (2) all property acquired after April 20, 1949, (a) by exchange for, (b) by the increase of, (c) with the proceeds of, or (d) with the income from, any property defined in subdivision (1) of this section.
Source: Laws 1949, c. 129, § 1, p. 337.
Notwithstanding that any property may in fact be community property, a husband or wife shall have power to receive, manage, control, and dispose of or otherwise deal with property standing in his or her name or under his or her management or control, in such manner as he or she would be so entitled to deal therewith by law, had Chapter 156, Session Laws of Nebraska, 1947, never been enacted.
Source: Laws 1949, c. 129, § 3, p. 337.
The Legislature recognizes that many husbands and wives have failed to keep proper records; that community income and separate funds have been commingled; that property has been acquired by husband or wife on or after September 7, 1947, in many cases with separate funds; that to protect property rights against loss of evidence, it is necessary that claims that property acquired, as defined in section 42-617, was, or is, community property should be filed or recorded. Any claim or defense by either husband or wife or other person, in any action, proceeding, or controversy, that any property acquired, as defined in section 42-617, was or is community property, shall be barred one year from April 20, 1949, unless, within one year from April 20, 1949, an affidavit by either the husband or wife, or other interested person, asserting that the property therein described was or is community property has been filed or recorded as herein provided. In case of real estate, such affidavit shall be recorded in the office of the register of deeds of the county in which the real estate is situated; in case of stocks, the affidavit shall be filed with the corporation issuing the same; in case of bonds, notes, secured or unsecured, securities, or other evidences of indebtedness or other debts, the affidavit shall be delivered to the debtor; in case of life insurance, the affidavit shall be filed with the home office of the insurer; and in case of all other personal property the affidavit shall be filed with the county clerk of the county in which the husband resides or last resided in Nebraska. The filing or recording of an affidavit as provided in sections 42-603 and 42-617 to 42-620, shall not constitute notice to purchasers, mortgagees, pledgees, or assignees for value, that such property is claimed to be community property. This section shall not apply to claims of any person in exclusive possession of property under claim of right, on April 20, 1949.
Source: Laws 1949, c. 129, § 4, p. 338.
If, for any reason, any of the foregoing sections 42-603 and 42-617 to 42-619 or any part thereof are held to be invalid, the Legislature declares that it would have passed section 6 irrespective of the fact that such sections or any part thereof may be declared invalid.
Source: Laws 1949, c. 129, § 5, p. 339.
Section 6, referred to in this section was a specific repeal of all sections of Chapter 156, Laws 1947, which was the act adopting a Community Property Law in Nebraska.
Sections 42-701 to 42-751.01 shall be known and may be cited as the Uniform Interstate Family Support Act.
Source: Laws 1993, LB 500, § 1; Laws 1997, LB 727, § 1; Laws 2003, LB 148, § 43; Laws 2015, LB415, § 1.
In the Uniform Interstate Family Support Act:
(1) Child means an individual, whether over or under the age of majority, who is or is alleged to be owed a duty of support by the individual's parent or who is or is alleged to be the beneficiary of a support order directed to the parent.
(2) Child support order means a support order for a child, including a child who has attained the age of majority under the law of the issuing state or foreign country.
(3) Convention means the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007.
(4) Duty of support means an obligation imposed or imposable by law to provide support for a child, spouse, or former spouse, including an unsatisfied obligation to provide support.
(5) Foreign country means a country, including a political subdivision thereof, other than the United States, that authorizes the issuance of support orders and:
(A) Which has been declared under the law of the United States to be a foreign reciprocating country;
(B) Which has established a reciprocal arrangement for child support with this state as provided in section 42-721;
(C) Which has enacted a law or established procedures for the issuance and enforcement of support orders which are substantially similar to the procedures under the act; or
(D) In which the Convention is in force with respect to the United States.
(6) Foreign support order means a support order of a foreign tribunal.
(7) Foreign tribunal means a court, administrative agency, or quasi-judicial entity of a foreign country which is authorized to establish, enforce, or modify support orders or to determine parentage of a child. The term includes a competent authority under the Convention.
(8) Home state means the state or foreign country in which a child lived with a parent or a person acting as parent for at least six consecutive months immediately preceding the time of filing of a petition or comparable pleading for support and, if a child is less than six months old, the state or foreign country in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the six-month or other period.
(9) Income includes earnings or other periodic entitlements to money from any source and any other property subject to withholding for support under the law of this state.
(10) Income withholding order means an order or other legal process directed to an obligor's employer or other payor, as defined by the Income Withholding for Child Support Act or sections 42-347 to 42-381, to withhold support from the income of the obligor.
(11) Initiating tribunal means the tribunal of a state or foreign country from which a petition or comparable pleading is forwarded or in which a petition or comparable pleading is filed for forwarding to another state or foreign country.
(12) Issuing foreign country means the foreign country in which a tribunal issues a support order or a judgment determining parentage of a child.
(13) Issuing state means the state in which a tribunal issues a support order or judgment determining parentage of a child.
(14) Issuing tribunal means the tribunal of a state or foreign country that issues a support order or a judgment determining parentage of a child.
(15) Law includes decisional and statutory law and rules and regulations having the force of law.
(16) Obligee means:
(A) An individual to whom a duty of support is or is alleged to be owed or in whose favor a support order or a judgment determining parentage of a child has been issued;
(B) A foreign country, state, or political subdivision of a state to which the rights under a duty of support or support order have been assigned or which has independent claims based on financial assistance provided to an individual obligee in place of child support;
(C) An individual seeking a judgment determining parentage of the individual's child; or
(D) A person that is a creditor in a proceeding under sections 42-748.01 to 42-748.13.
(17) Obligor means an individual, or the estate of a decedent that:
(A) Owes or is alleged to owe a duty of support;
(B) Is alleged but has not been adjudicated to be a parent of a child;
(C) Is liable under a support order; or
(D) Is a debtor in a proceeding under sections 42-748.01 to 42-748.13.
(18) Outside this state means a location in another state or a country other than the United States, whether or not the country is a foreign country.
(19) Person means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(20) Record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(21) Register means to record or file in a tribunal of this state a support order or judgment determining parentage of a child issued in another state or a foreign country.
(22) Registering tribunal means a tribunal in which a support order or judgment determining parentage of a child is registered.
(23) Responding state means a state in which a petition or comparable pleading for support or to determine parentage of a child is filed or to which a petition or comparable pleading is forwarded for filing from another state or a foreign country.
(24) Responding tribunal means the authorized tribunal in a responding state or foreign country.
(25) Spousal support order means a support order for a spouse or former spouse of the obligor.
(26) State means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession under the jurisdiction of the United States. The term includes an Indian nation or tribe.
(27) Support enforcement agency means a public official, governmental entity, or private agency authorized to:
(A) Seek enforcement of support orders or laws relating to the duty of support;
(B) Seek establishment or modification of child support;
(C) Request determination of parentage of a child;
(D) Attempt to locate obligors or their assets; or
(E) Request determination of the controlling child support order.
(28) Support order means a judgment, decree, order, decision, or directive, whether temporary, final, or subject to modification, issued in a state or foreign country for the benefit of a child, a spouse, or a former spouse, which provides for monetary support, health care, arrearages, retroactive support, or reimbursement for financial assistance provided to an individual obligee in place of child support. The term may include related costs and fees, interest, income withholding, automatic adjustment, reasonable attorney's fees, and other relief.
(29) Tribunal means a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage of a child.
Source: Laws 1993, LB 500, § 2; Laws 1997, LB 727, § 2; Laws 2003, LB 148, § 44; Laws 2015, LB415, § 2.
Cross References
(a) The district court is the tribunal of this state.
(b) The Department of Health and Human Services is the support enforcement agency of this state.
Source: Laws 1993, LB 500, § 3; Laws 2015, LB415, § 3.
(a) Remedies provided by the Uniform Interstate Family Support Act are cumulative and do not affect the availability of remedies under other law or the recognition of a foreign support order on the basis of comity.
(b) The Uniform Interstate Family Support Act does not:
(1) Provide the exclusive method of establishing or enforcing a support order under the law of this state; or
(2) Grant a tribunal of this state jurisdiction to render judgment or issue an order relating to child custody or visitation in a proceeding under the act.
Source: Laws 1993, LB 500, § 4; Laws 2003, LB 148, § 45; Laws 2015, LB415, § 4.
Annotations
Under this section, a defendant has both common-law and statutory remedies available to contest the validity of an income withholding order issued by another state. Harvey v. Harvey, 6 Neb. App. 524, 575 N.W.2d 167 (1998).
(a) A tribunal of this state shall apply sections 42-701 to 42-747.04 and, as applicable, sections 42-748.01 to 42-748.13, to a support proceeding involving:
(i) A foreign support order;
(ii) A foreign tribunal; or
(iii) An obligee, obligor, or child residing in a foreign country.
(b) A tribunal of this state that is requested to recognize and enforce a support order on the basis of comity may apply the procedural and substantive provisions of sections 42-701 to 42-747.04.
(c) Sections 42-748.01 to 42-748.13 apply only to a support proceeding under the Convention. In such a proceeding, if a provision of such sections is inconsistent with sections 42-701 to 42-747.04, sections 42-748.01 to 42-748.13 control.
Source: Laws 2015, LB415, § 5.
(a) In a proceeding to establish or enforce a support order or to determine parentage of a child, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if:
(1) The individual is personally served with notice within this state;
(2) The individual submits to the jurisdiction of this state by consent in a record, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
(3) The individual resided with the child in this state;
(4) The individual resided in this state and provided prenatal expenses or support for the child;
(5) The child resides in this state as a result of the acts or directives of the individual;
(6) The individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;
(7) The individual asserted parentage of a child in this state pursuant to section 43-104.02, 71-628, 71-640.01, or 71-640.02 with the Department of Health and Human Services; or
(8) There is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.
(b) The bases of personal jurisdiction set forth in subsection (a) of this section or in any other law of this state shall not be used to acquire personal jurisdiction for a tribunal of this state to modify a child support order of another state unless the requirements of section 42-746 are met or, in the case of a foreign support order, unless the requirements of section 42-747.03 are met.
Source: Laws 1993, LB 500, § 5; Laws 1996, LB 1044, § 101; Laws 2003, LB 148, § 46; Laws 2007, LB296, § 60; Laws 2015, LB415, § 6.
Personal jurisdiction acquired by a tribunal of this state in a proceeding under the Uniform Interstate Family Support Act or other law of this state relating to a support order continues as long as a tribunal of this state has continuing, exclusive jurisdiction to modify its order or continuing jurisdiction to enforce its order as provided by sections 42-709, 42-710, and 42-713.02.
Source: Laws 1993, LB 500, § 6; Laws 2003, LB 148, § 47.
Under the Uniform Interstate Family Support Act, a tribunal of this state may serve as an initiating tribunal to forward proceedings to a tribunal of another state and as a responding tribunal for proceedings initiated in another state or a foreign country.
Source: Laws 1993, LB 500, § 7; Laws 2015, LB415, § 7.
(a) A tribunal of this state may exercise jurisdiction to establish a support order if the petition or comparable pleading is filed after a petition or comparable pleading is filed in another state or a foreign country only if:
(1) the petition or comparable pleading in this state is filed before the expiration of the time allowed in the other state or the foreign country for filing a responsive pleading challenging the exercise of jurisdiction by the other state or the foreign country;
(2) the contesting party timely challenges the exercise of jurisdiction in the other state or the foreign country; and
(3) if relevant, this state is the home state of the child.
(b) A tribunal of this state may not exercise jurisdiction to establish a support order if the petition or comparable pleading is filed before a petition or comparable pleading is filed in another state or a foreign country if:
(1) the petition or comparable pleading in the other state or foreign country is filed before the expiration of the time allowed in this state for filing a responsive pleading challenging the exercise of jurisdiction by this state;
(2) the contesting party timely challenges the exercise of jurisdiction in this state; and
(3) if relevant, the other state or foreign country is the home state of the child.
Source: Laws 1993, LB 500, § 8; Laws 2015, LB415, § 8.
(a) A tribunal of this state that has issued a child support order consistent with the law of this state has and shall exercise continuing, exclusive jurisdiction to modify its child support order if the order is the controlling order and:
(1) at the time of the filing of a request for modification this state is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or
(2) even if this state is not the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued, the parties consent in a record or in open court that the tribunal of this state may continue to exercise jurisdiction to modify its order.
(b) A tribunal of this state that has issued a child support order consistent with the law of this state shall not exercise continuing, exclusive jurisdiction to modify the order if:
(1) all of the parties who are individuals file consent in a record with the tribunal of this state that a tribunal of another state that has jurisdiction over at least one of the parties who is an individual or that is located in the state of residence of the child may modify the order and assume continuing, exclusive jurisdiction; or
(2) its order is not the controlling order.
(c) If a tribunal of another state has issued a child support order pursuant to the Uniform Interstate Family Support Act or a law substantially similar to the act which modifies a child support order of a tribunal of this state, tribunals of this state shall recognize the continuing, exclusive jurisdiction of the tribunal of the other state.
(d) A tribunal of this state that lacks continuing, exclusive jurisdiction to modify a child support order may serve as an initiating tribunal to request a tribunal of another state to modify a support order issued in that state.
(e) A temporary support order issued ex parte or pending resolution of a jurisdictional conflict does not create continuing, exclusive jurisdiction in the issuing tribunal.
Source: Laws 1993, LB 500, § 9; Laws 1997, LB 727, § 3; Laws 2003, LB 148, § 48.
Annotations
Under this section as it existed prior to enactment of Laws 2003, LB 148, an issuing state loses continuing, exclusive jurisdiction to modify child support provisions of a divorce decree once both parents and all of their children move away from the issuing state. Groseth v. Groseth, 257 Neb. 525, 600 N.W.2d 159 (1999).
(a) A tribunal of this state that has issued a child support order consistent with the law of this state may serve as an initiating tribunal to request a tribunal of another state to enforce:
(1) the order if the order is the controlling order and has not been modified by a tribunal of another state that assumed jurisdiction pursuant to the Uniform Interstate Family Support Act; or
(2) a money judgment for arrears of support and interest on the order accrued before a determination that an order of a tribunal of another state is the controlling order.
(b) A tribunal of this state having continuing jurisdiction over a support order may act as a responding tribunal to enforce the order.
Source: Laws 1993, LB 500, § 10; Laws 2003, LB 148, § 49; Laws 2015, LB415, § 9.
(a) If a proceeding is brought under the Uniform Interstate Family Support Act and only one tribunal has issued a child support order, the order of that tribunal controls and must be recognized.
(b) If a proceeding is brought under the Uniform Interstate Family Support Act and two or more child support orders have been issued by tribunals of this state, another state, or a foreign country with regard to the same obligor and the same child, a tribunal of this state having personal jurisdiction over both the obligor and individual obligee shall apply the following rules and by order shall determine which order controls and must be recognized:
(1) If only one of the tribunals would have continuing, exclusive jurisdiction under the act, the order of that tribunal controls.
(2) If more than one of the tribunals would have continuing, exclusive jurisdiction under the act:
(A) an order issued by a tribunal in the current home state of the child controls; or
(B) if an order has not been issued in the current home state of the child, the order most recently issued controls.
(3) If none of the tribunals would have continuing, exclusive jurisdiction under the act, the tribunal of this state shall issue a child support order, which controls.
(c) If two or more child support orders have been issued for the same obligor and the same child, upon request of a party who is an individual or that is a support enforcement agency, a tribunal of this state having personal jurisdiction over both the obligor and the obligee who is an individual shall determine which order controls under subsection (b) of this section. The request may be filed with a registration for enforcement or registration for modification pursuant to sections 42-736 to 42-747.04 or may be filed as a separate proceeding.
(d) A request to determine which is the controlling order shall be accompanied by a copy of every child support order in effect and the applicable record of payments. The requesting party shall give notice of the request to each party whose rights may be affected by the determination.
(e) The tribunal that issued the controlling order under subsection (a), (b), or (c) of this section has continuing jurisdiction to the extent provided in section 42-709 or 42-710.
(f) A tribunal of this state that determines by order which is the controlling order under subdivision (b)(1) or (b)(2) or subsection (c) of this section or that issues a new controlling order under subdivision (b)(3) of this section shall state in that order:
(1) the basis upon which the tribunal made its determination;
(2) the amount of prospective support, if any; and
(3) the total amount of consolidated arrears and accrued interest, if any, under all of the orders after all payments made are credited as provided by section 42-713.
(g) Within thirty days after issuance of an order determining which is the controlling order, the party obtaining the order shall file a certified copy of it in each tribunal that issued or registered an earlier order of child support. A party or support enforcement agency obtaining the order that fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure to file does not affect the validity or enforceability of the controlling order.
(h) An order that has been determined to be the controlling order, or a judgment for consolidated arrears of support and interest, if any, made pursuant to this section shall be recognized in proceedings under the Uniform Interstate Family Support Act.
Source: Laws 1993, LB 500, § 11; Laws 1997, LB 727, § 4; Laws 2003, LB 148, § 50; Laws 2015, LB415, § 10.
In responding to registrations or petitions for enforcement of two or more child support orders in effect at the same time with regard to the same obligor and different individual obligees, at least one of which was issued by a tribunal of another state or a foreign country, a tribunal of this state shall enforce those orders in the same manner as if the orders had been issued by a tribunal of this state.
Source: Laws 1993, LB 500, § 12; Laws 2003, LB 148, § 51; Laws 2015, LB415, § 11.
A tribunal of this state shall credit amounts collected for a particular period pursuant to any child support order against the amounts owed for the same period under any other child support order for support of the same child issued by a tribunal of this state, another state, or a foreign country.
Source: Laws 1993, LB 500, § 13; Laws 2003, LB 148, § 52; Laws 2015, LB415, § 12.
A tribunal of this state exercising personal jurisdiction over a nonresident in a proceeding under the Uniform Interstate Family Support Act or under other law of this state relating to a support order or recognizing a foreign support order may receive evidence from outside this state pursuant to section 42-729, communicate with a tribunal outside this state pursuant to section 42-730, and obtain discovery through a tribunal outside this state pursuant to section 42-731. In all other respects, sections 42-714 to 42-747.04 do not apply and the tribunal shall apply the procedural and substantive law of this state.
Source: Laws 2003, LB 148, § 53; Laws 2015, LB415, § 13.
(a) A tribunal of this state issuing a spousal support order consistent with the law of this state has continuing, exclusive jurisdiction to modify the spousal support order throughout the existence of the support obligation.
(b) A tribunal of this state shall not modify a spousal support order issued by a tribunal of another state or a foreign country having continuing, exclusive jurisdiction over that order under the law of that state or foreign country.
(c) A tribunal of this state that has continuing, exclusive jurisdiction over a spousal support order may serve as:
(1) an initiating tribunal to request a tribunal of another state to enforce the spousal support order issued in this state; or
(2) a responding tribunal to enforce or modify its own spousal support order.
Source: Laws 2003, LB 148, § 54; Laws 2015, LB415, § 14.
(a) Except as otherwise provided in the Uniform Interstate Family Support Act, sections 42-714 to 42-732 apply to all proceedings under the act.
(b) An individual petitioner or a support enforcement agency may initiate a proceeding authorized under the act by filing a petition in an initiating tribunal for forwarding to a responding tribunal or by filing a petition or a comparable pleading directly in a tribunal of another state or a foreign country which has or can obtain personal jurisdiction over the respondent.
Source: Laws 1993, LB 500, § 14; Laws 1997, LB 727, § 5; Laws 2003, LB 148, § 55; Laws 2015, LB415, § 15.
A minor parent, or a guardian or other legal representative of a minor parent, may maintain a proceeding on behalf of or for the benefit of the minor's child.
Source: Laws 1993, LB 500, § 15.
Except as otherwise provided in the Uniform Interstate Family Support Act, a responding tribunal of this state:
(1) shall apply the procedural and substantive law generally applicable to similar proceedings originating in this state and may exercise all powers and provide all remedies available in those proceedings; and
(2) shall determine the duty of support and the amount payable in accordance with the support guidelines established under section 42-364.16.
Source: Laws 1993, LB 500, § 16; Laws 2003, LB 148, § 56.
(a) Upon the filing of a petition authorized by the Uniform Interstate Family Support Act, an initiating tribunal of this state shall forward the petition and its accompanying documents:
(1) to the responding tribunal or appropriate support enforcement agency in the responding state; or
(2) if the identity of the responding tribunal is unknown, to the state information agency of the responding state with a request that they be forwarded to the appropriate tribunal and that receipt be acknowledged.
(b) If requested by the responding tribunal, a tribunal of this state shall issue a certificate or other document and make findings required by the law of the responding state. If the responding tribunal is in a foreign country, upon request the tribunal of this state shall specify the amount of support sought, convert that amount into the equivalent amount in the foreign currency under applicable official or market exchange rate as publicly reported, and provide any other documents necessary to satisfy the requirements of the responding foreign tribunal.
Source: Laws 1993, LB 500, § 17; Laws 1997, LB 727, § 6; Laws 2003, LB 148, § 57; Laws 2015, LB415, § 16.
(a) When a responding tribunal of this state receives a petition or comparable pleading from an initiating tribunal or directly pursuant to subsection (b) of section 42-714, it shall cause the petition or pleading to be filed and notify the petitioner where and when it was filed.
(b) A responding tribunal of this state, to the extent not prohibited by other law, may do one or more of the following:
(1) establish or enforce a support order, modify a child support order, determine the controlling child support order, or determine parentage of a child;
(2) order an obligor to comply with a support order, specifying the amount and the manner of compliance;
(3) order income withholding;
(4) determine the amount of any arrearages, and specify a method of payment;
(5) enforce orders by civil or criminal contempt, or both;
(6) set aside property for satisfaction of the support order;
(7) place liens and order execution on the obligor's property;
(8) order an obligor to keep the tribunal informed of the obligor's current residential address, electronic mail address, telephone number, employer, address of employment, and telephone number at the place of employment;
(9) issue a capias for an obligor who has failed after proper notice to appear at a hearing ordered by the tribunal and enter the capias in any local and state computer systems for criminal warrants;
(10) order the obligor to seek appropriate employment by specified methods;
(11) award reasonable attorney's fees and other fees and costs;
(12) issue an order releasing or subordinating a lien pursuant to section 42-371; and
(13) grant any other available remedy.
(c) A responding tribunal of this state shall include in a support order issued under the Uniform Interstate Family Support Act, or in the documents accompanying the order, the calculations on which the support order is based.
(d) A responding tribunal of this state shall not condition the payment of a support order issued under the act upon compliance by a party with provisions for visitation.
(e) If a responding tribunal of this state issues an order under the act, the tribunal shall send a copy of the order to the petitioner and the respondent and to the initiating tribunal, if any.
(f) If requested to enforce a support order, arrearages, or judgment or modify a support order stated in a foreign currency, a responding tribunal of this state shall convert the amount stated in the foreign currency to the equivalent amount in dollars under the applicable official or market exchange rate as publicly reported.
Source: Laws 1993, LB 500, § 18; Laws 1997, LB 727, § 7; Laws 2003, LB 148, § 58; Laws 2015, LB415, § 17.
If a petition or comparable pleading is received by an inappropriate tribunal of this state, the tribunal shall forward the pleading and accompanying documents to an appropriate tribunal of this state or another state and notify the petitioner where and when the pleading was sent.
Source: Laws 1993, LB 500, § 19; Laws 1997, LB 727, § 8; Laws 2003, LB 148, § 59; Laws 2015, LB415, § 18.
(a) In a proceeding under the Uniform Interstate Family Support Act, a support enforcement agency of this state, upon request:
(1) shall provide services to a petitioner residing in a state;
(2) shall provide services to a petitioner requesting services through a central authority of a foreign country as described in subdivision (5)(A) or (D) of section 42-702; and
(3) may provide services to a petitioner who is an individual not residing in a state.
(b) A support enforcement agency of this state that is providing services to the petitioner shall:
(1) take all steps necessary to enable an appropriate tribunal of this state, another state, or a foreign country to obtain jurisdiction over the respondent;
(2) request an appropriate tribunal to set a date, time, and place for a hearing;
(3) make a reasonable effort to obtain all relevant information, including information as to income and property of the parties;
(4) within five days, exclusive of nonjudicial days, after receipt of a written notice in a record from an initiating, responding, or registering tribunal, send a copy of the notice to the petitioner;
(5) within five days, exclusive of nonjudicial days, after receipt of a written communication in a record from the respondent or the respondent's attorney, send a copy of the communication to the petitioner; and
(6) notify the petitioner if jurisdiction over the respondent cannot be obtained.
(c) A support enforcement agency of this state that requests registration of a child support order in this state for enforcement or for modification shall make reasonable efforts:
(1) to ensure that the order to be registered is the controlling order; or
(2) if two or more child support orders exist and the identity of the controlling order has not been determined, to ensure that a request for such a determination is made in a tribunal having jurisdiction to do so.
(d) A support enforcement agency of this state that requests registration and enforcement of a support order, arrearages, or judgment stated in a foreign currency shall convert the amounts stated in the foreign currency into the equivalent amounts in dollars under the applicable official or market exchange rate as publicly reported.
(e) A support enforcement agency of this state shall request a tribunal of this state to issue a child support order and an income withholding order that redirect payment of current support, arrearages, and interest if requested to do so by a support enforcement agency of another state pursuant to section 42-732.
(f) The act does not create or negate a relationship of attorney and client or other fiduciary relationship between a support enforcement agency or the attorney for the agency and the individual being assisted by the agency.
Source: Laws 1993, LB 500, § 20; Laws 1997, LB 727, § 9; Laws 2003, LB 148, § 60; Laws 2003, LB 760, § 15; Laws 2015, LB415, § 19.
(a) If the Attorney General determines that the support enforcement agency is neglecting or refusing to provide services to an individual, the Attorney General may order the agency to perform its duties under the Uniform Interstate Family Support Act or may provide those services directly to the individual.
(b) The Attorney General may determine that a foreign country has established a reciprocal arrangement for child support with this state and take appropriate action for notification of the determination.
Source: Laws 1993, LB 500, § 21; Laws 2003, LB 148, § 61; Laws 2015, LB415, § 20.
An individual may employ private counsel to represent the individual in proceedings authorized by the Uniform Interstate Family Support Act.
Source: Laws 1993, LB 500, § 22.
(a) The Department of Health and Human Services is the state information agency under the Uniform Interstate Family Support Act.
(b) The state information agency shall:
(1) compile and maintain a current list, including addresses, of the tribunals in this state which have jurisdiction under the act and any support enforcement agencies in this state and transmit a copy to the state information agency of every other state;
(2) maintain a register of names and addresses of tribunals and support enforcement agencies received from other states;
(3) forward to the appropriate tribunal in the county in this state in which the obligee who is an individual or the obligor resides, or in which the obligor's property is believed to be located, all documents concerning a proceeding under the act received from another state or a foreign country; and
(4) obtain information concerning the location of the obligor and the obligor's property within this state not exempt from execution, by such means as postal verification and federal or state locator services, examination of telephone directories, requests for the obligor's address from employers, and examination of governmental records, including, to the extent not prohibited by other law, those relating to real property, vital statistics, law enforcement, taxation, motor vehicles, driver's licenses, and social security.
Source: Laws 1993, LB 500, § 23; Laws 1996, LB 1044, § 102; Laws 1997, LB 307, § 18; Laws 2003, LB 148, § 62; Laws 2015, LB415, § 21.
(a) In a proceeding under the Uniform Interstate Family Support Act, a petitioner seeking to establish a support order, to determine parentage of a child, or to register and modify a support order of a tribunal of another state or a foreign country shall file a petition. Unless otherwise ordered under section 42-725, the petition or accompanying documents must provide, so far as known, the name, residential address, and social security numbers of the obligor and the obligee or the parent and alleged parent, and the name, sex, residential address, social security number, and date of birth of each child for whose benefit support is sought or whose parentage is to be determined. Unless filed at the time of registration, the petition shall be accompanied by a copy of any support order known to have been issued by another tribunal. The accompanying documents may include any other information that may assist in locating or identifying the respondent.
(b) The petition shall specify the relief sought. The petition and accompanying documents shall conform substantially with the requirements imposed by the forms mandated by federal law for use in cases filed by a support enforcement agency.
Source: Laws 1993, LB 500, § 24; Laws 2003, LB 148, § 63; Laws 2015, LB415, § 22.
If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of specific identifying information, that information shall be sealed and shall not be disclosed to the other party or the public. After a hearing in which a tribunal takes into consideration the health, safety, or liberty of the party or child, the tribunal may order disclosure of information that the tribunal determines to be in the interest of justice.
Source: Laws 1993, LB 500, § 25; Laws 2003, LB 148, § 64.
(a) The petitioner shall not be required to pay a filing fee or other costs.
(b) If an obligee prevails, a responding tribunal of this state may assess against an obligor filing fees, reasonable attorney's fees, other costs, and necessary travel and other reasonable expenses incurred by the obligee and the obligee's witnesses. The tribunal shall not assess fees, costs, or expenses against the obligee or the support enforcement agency of either the initiating or the responding state or foreign country, except as provided by other law. Attorney's fees may be taxed as costs, and may be ordered paid directly to the attorney, who may enforce the order in the attorney's own name. Payment of support owed to the obligee has priority over fees, costs, and expenses.
(c) The tribunal shall order the payment of costs and reasonable attorney's fees if it determines that a hearing was requested primarily for delay. In a proceeding under sections 42-736 to 42-747.04, a hearing is presumed to have been requested primarily for delay if a registered support order is confirmed or enforced without change.
Source: Laws 1993, LB 500, § 26; Laws 2003, LB 148, § 65; Laws 2015, LB415, § 23.
(a) Participation by a petitioner in a proceeding under the Uniform Interstate Family Support Act before a responding tribunal, whether in person, by private attorney, or through services provided by the support enforcement agency, does not confer personal jurisdiction over the petitioner in another proceeding.
(b) A petitioner is not amenable to service of civil process while physically present in this state to participate in a proceeding under the Uniform Interstate Family Support Act.
(c) The immunity granted by this section does not extend to civil litigation based on acts unrelated to a proceeding under the act committed by a party while present in this state to participate in the proceeding.
Source: Laws 1993, LB 500, § 27; Laws 2003, LB 148, § 66.
A party whose parentage of a child has been previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding under the Uniform Interstate Family Support Act.
Source: Laws 1993, LB 500, § 28.
(a) The physical presence of a nonresident party who is an individual in a tribunal of this state is not required for the establishment, enforcement, or modification of a support order or the rendition of a judgment determining parentage of a child.
(b) An affidavit, a document substantially complying with federally mandated forms, or a document incorporated by reference in any of them, which would not be excluded under the hearsay rule if given in person, is admissible in evidence if given under penalty of perjury by a party or witness residing outside this state.
(c) A copy of the record of child support payments certified as a true copy of the original by the custodian of the record may be forwarded to a responding tribunal. The copy is evidence of facts asserted in it, and is admissible to show whether payments were made.
(d) Copies of bills for testing for parentage of a child, and for prenatal and postnatal health care of the mother and child, furnished to the adverse party at least ten days before trial, are admissible in evidence to prove the amount of the charges billed and that the charges were reasonable, necessary, and customary.
(e) Documentary evidence transmitted from outside this state to a tribunal of this state by telephone, telecopier, or other electronic means that do not provide an original record shall not be excluded from evidence on an objection based on the means of transmission.
(f) In a proceeding under the Uniform Interstate Family Support Act, a tribunal of this state shall permit a party or witness residing outside this state to be deposed or to testify under penalty of perjury by telephone, audiovisual means, or other electronic means at a designated tribunal or other location. A tribunal of this state shall cooperate with other tribunals in designating an appropriate location for the deposition or testimony.
(g) If a party called to testify at a civil hearing refuses to answer on the ground that the testimony may be self-incriminating, the trier of fact may draw an adverse inference from the refusal.
(h) A privilege against disclosure of communications between spouses does not apply in a proceeding under the act.
(i) The defense of immunity based on the relationship of husband and wife or parent and child does not apply in a proceeding under the act.
(j) A voluntary acknowledgment of paternity, certified as a true copy, is admissible to establish parentage of the child.
Source: Laws 1993, LB 500, § 29; Laws 2003, LB 148, § 67; Laws 2015, LB415, § 24.
A tribunal of this state may communicate with a tribunal outside this state in a record or by telephone, electronic mail, or other means to obtain information concerning the laws, the legal effect of a judgment, decree, or order of that tribunal, and the status of a proceeding. A tribunal of this state may furnish similar information by similar means to a tribunal outside this state.
Source: Laws 1993, LB 500, § 30; Laws 2003, LB 148, § 68; Laws 2015, LB415, § 25.
A tribunal of this state may:
(1) request a tribunal outside this state to assist in obtaining discovery; and
(2) upon request, compel a person over which it has jurisdiction to respond to a discovery order issued by a tribunal outside this state.
Source: Laws 1993, LB 500, § 31; Laws 2015, LB415, § 26.
(a) A support enforcement agency or tribunal of this state shall disburse promptly any amounts received pursuant to a support order, as directed by the order. The agency or tribunal shall furnish to a requesting party or tribunal of another state or a foreign country a certified statement by the custodian of the record of the amounts and dates of all payments received.
(b) If neither the obligor, nor the obligee who is an individual, nor the child resides in this state, upon request from the support enforcement agency of this state or another state, the support enforcement agency of this state or a tribunal of this state shall:
(1) direct that the support payment be made to the support enforcement agency in the state in which the obligee is receiving services; and
(2) issue and send to the obligor's employer a conforming income withholding order or an administrative notice of change of payee, reflecting the redirected payments.
(c) The support enforcement agency of this state receiving redirected payments from another state pursuant to a law similar to subsection (b) of this section shall furnish to a requesting party or tribunal of the other state a certified statement by the custodian of the record of the amount and dates of all payments received.
Source: Laws 1993, LB 500, § 32; Laws 2003, LB 148, § 69; Laws 2015, LB415, § 27.
(a) If a support order entitled to recognition under the Uniform Interstate Family Support Act has not been issued, a responding tribunal of this state with personal jurisdiction over the parties may issue a support order if:
(1) the individual seeking the order resides outside this state; or
(2) the support enforcement agency seeking the order is located outside this state.
(b) The tribunal may issue a temporary child support order if the tribunal determines that such an order is appropriate and the individual ordered to pay is:
(1) a presumed father of the child;
(2) petitioning to have his paternity adjudicated;
(3) identified as the father of the child through genetic testing;
(4) an alleged father who has declined to submit to genetic testing;
(5) shown by clear and convincing evidence to be the father of the child;
(6) the father of a child whose paternity is established either by judicial proceeding or acknowledgment under sections 43-1401 to 43-1418;
(7) the mother of the child; or
(8) an individual who has been ordered to pay child support in a previous proceeding and the order has not been reversed or vacated.
(c) Upon finding, after notice and opportunity to be heard, that an obligor owes a duty of support, the tribunal shall issue a support order directed to the obligor and may issue other orders pursuant to section 42-718.
Source: Laws 1993, LB 500, § 33; Laws 2003, LB 148, § 70; Laws 2015, LB415, § 28.
Annotations
This section applies to situations where an existing support order which has been entered by one state court (the initiating tribunal) is sought to be enforced (recognition) in another state court (the responding tribunal). Willers ex rel. Powell v. Willers, 255 Neb. 769, 587 N.W.2d 390 (1998).
A tribunal of this state authorized to determine parentage of a child may serve as a responding tribunal in a proceeding to determine parentage of a child brought under the Uniform Interstate Family Support Act or a law or procedure substantially similar to the act.
Source: Laws 2015, LB415, § 29.
An income withholding order issued in another state may be sent by or on behalf of the obligee or by the support enforcement agency to the person defined as the obligor's employer under the Income Withholding for Child Support Act or sections 42-347 to 42-381 without first filing a petition or comparable pleading or registering the order with a tribunal of this state.
Source: Laws 1993, LB 500, § 34; Laws 1997, LB 727, § 10; Laws 2003, LB 148, § 71.
Cross References
Annotations
This section allowed the plaintiff to send a Wisconsin child support order to the defendant's Nebraska employer without first filing a petition or registering the order with a tribunal of Nebraska, and the employer was required to provide the defendant with a copy of the order and to distribute funds as directed by the Wisconsin order. Harvey v. Harvey, 6 Neb. App. 524, 575 N.W.2d 167 (1998).
(a) Upon receipt of an income withholding order, the obligor's employer shall immediately provide a copy of the order to the obligor.
(b) The employer shall treat an income withholding order issued in another state which appears regular on its face as if it had been issued by a tribunal of this state.
(c) Except as otherwise provided in subsection (d) of this section and section 42-734.02, the employer shall withhold and distribute the funds as directed in the withholding order by complying with the terms of the order which specify:
(1) the duration and amount of periodic payments of current child support, stated as a sum certain;
(2) the person designated to receive payments and the address to which the payments are to be forwarded;
(3) medical support, whether in the form of periodic cash payment, stated as a sum certain, or ordering the obligor to provide health insurance coverage for the child under a policy available through the obligor's employment;
(4) the amount of periodic payments of fees and costs for a support enforcement agency, the issuing tribunal, and the obligee's attorney, stated as sums certain; and
(5) the amount of periodic payments of arrearages and interest on arrearages, stated as sums certain.
(d) An employer shall comply with the law of the state of the obligor's principal place of employment for withholding from income with respect to:
(1) the employer's fee for processing an income withholding order;
(2) the maximum amount permitted to be withheld from the obligor's income; and
(3) the times within which the employer shall implement the withholding order and forward the child support payment.
Source: Laws 1997, LB 727, § 11; Laws 2003, LB 148, § 72.
If an obligor's employer receives two or more income withholding orders with respect to the earnings of the same obligor, the employer satisfies the terms of the orders if the employer complies with the law of the state of the obligor's principal place of employment to establish the priorities for withholding and allocating income withheld for two or more child support obligees.
Source: Laws 1997, LB 727, § 12; Laws 2003, LB 148, § 73.
An employer that complies with an income withholding order issued in another state in accordance with sections 42-734 to 42-735 is not subject to civil liability to any individual or agency with regard to the employer's withholding of child support from the obligor's income.
Source: Laws 1997, LB 727, § 13; Laws 2015, LB415, § 30.
An employer that willfully fails to comply with an income withholding order issued in another state and received for enforcement is subject to the same penalties that may be imposed for noncompliance with an order issued by a tribunal of this state.
Source: Laws 1997, LB 727, § 14; Laws 2015, LB415, § 31.
(a) An obligor may contest the validity or enforcement of an income withholding order issued in another state and received directly by an employer in this state by registering the order in a tribunal of this state and filing a contest to that order as provided in sections 42-736 to 42-747.04 or otherwise contesting the order in the same manner as if the order had been issued by a tribunal of this state.
(b) The obligor shall give notice of the contest to:
(1) a support enforcement agency providing services to the obligee;
(2) each employer that has directly received an income withholding order relating to the obligor; and
(3) the person designated to receive payments in the income withholding order or, if no person is designated, to the obligee.
Source: Laws 1997, LB 727, § 15; Laws 2003, LB 148, § 74; Laws 2015, LB415, § 32.
(a) A party or support enforcement agency seeking to enforce a support order or an income withholding order, or both, issued in another state or a foreign support order may send the documents required for registering the order to a support enforcement agency of this state.
(b) Upon receipt of the documents, the support enforcement agency, without initially seeking to register the order, shall consider and, if appropriate, use any administrative procedure authorized by the law of this state to enforce a support order or an income withholding order, or both. If the obligor does not contest administrative enforcement, the order need not be registered. If the obligor contests the validity or administrative enforcement of the order, the support enforcement agency shall register the order pursuant to the Uniform Interstate Family Support Act.
Source: Laws 1993, LB 500, § 35; Laws 2003, LB 148, § 75; Laws 2015, LB415, § 33.
A support order or an income withholding order issued in another state or a foreign support order may be registered in this state for enforcement.
Source: Laws 1993, LB 500, § 36; Laws 2015, LB415, § 34.
(a) Except as provided in section 42-748.06, a support order or an income withholding order of another state or a foreign support order may be registered in this state by sending the following records to the appropriate tribunal in this state:
(1) a letter of transmittal to the tribunal requesting registration and enforcement;
(2) two copies, including one certified copy, of the order to be registered, including any modification of the order;
(3) a sworn statement by the person requesting registration or a certified statement by the custodian of the records showing the amount of any arrearage;
(4) the name of the obligor and, if known:
(A) the obligor's address and social security number;
(B) the name and address of the obligor's employer or other payor and any other source of income of the obligor; and
(C) a description and the location of property of the obligor in this state not exempt from execution; and
(5) except as otherwise provided in section 42-725, the name and address of the obligee and, if applicable, the person to whom support payments are to be remitted.
(b) On receipt of a request for registration, the registering tribunal shall cause the order to be filed as an order of a tribunal of another state or a foreign support order, together with one copy of the documents and information, regardless of their form.
(c) A petition or comparable pleading seeking a remedy that must be affirmatively sought under other law of this state may be filed at the same time as the request for registration or later. The pleading shall specify the grounds for the remedy sought.
(d) If two or more orders are in effect, the person requesting registration shall:
(1) furnish to the tribunal a copy of every support order asserted to be in effect in addition to the documents specified in this section;
(2) specify the order alleged to be the controlling order, if any; and
(3) specify the amount of consolidated arrears, if any.
(e) A request for a determination of which is the controlling order may be filed separately or with a request for registration and enforcement or for registration and modification. The person requesting registration shall give notice of the request to each party whose rights may be affected by the determination.
Source: Laws 1993, LB 500, § 37; Laws 2003, LB 148, § 76; Laws 2015, LB415, § 35.
(a) A support order or income withholding order issued in another state or a foreign support order is registered when the order is filed in the registering tribunal of this state.
(b) A registered support order issued in another state or a foreign country is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.
(c) Except as otherwise provided in the Uniform Interstate Family Support Act, a tribunal of this state shall recognize and enforce, but shall not modify, a registered support order if the issuing tribunal had jurisdiction.
Source: Laws 1993, LB 500, § 38; Laws 2003, LB 148, § 77; Laws 2015, LB415, § 36.
(a) Except as otherwise provided in subsection (d) of this section, the law of the issuing state or foreign country governs:
(1) the nature, extent, amount, and duration of current payments under a registered support order;
(2) the computation and payment of arrearages and accrual of interest on the arrearages under the support order; and
(3) the existence and satisfaction of other obligations under the support order.
(b) In a proceeding for arrearages under a registered support order, the statute of limitation of this state or of the issuing state or foreign country, whichever is longer, applies.
(c) A responding tribunal of this state shall apply the procedures and remedies of this state to enforce current support and collect arrearages and interest due on a support order of another state or a foreign country registered in this state.
(d) After a tribunal of this or another state determines which is the controlling order and issues an order consolidating arrearages, if any, a tribunal of this state shall prospectively apply the law of the state or foreign country issuing the controlling order, including its law on interest on arrearages, on current and future support, and on consolidated arrearages.
Source: Laws 1993, LB 500, § 39; Laws 2003, LB 148, § 78; Laws 2015, LB415, § 37.
Annotations
Under this section and section 42-746, a responding state becomes an issuing state when it assumes continuing, exclusive jurisdiction to modify a foreign child support order and must apply its own substantive law to the modification. Under this section, the substantive law of an issuing state applies to petitions filed in a responding state to enforce the existing child support orders of the issuing state; at the same time, the substantive law of the issuing state does not apply to petitions filed in a responding state to modify the existing child support orders of the issuing state. Groseth v. Groseth, 257 Neb. 525, 600 N.W.2d 159 (1999).
(a) When a support order or income withholding order issued in another state or a foreign support order is registered, the registering tribunal of this state shall notify the nonregistering party. The notice shall be accompanied by a copy of the registered order and the documents and relevant information accompanying the order.
(b) A notice shall inform the nonregistering party:
(1) that a registered order is enforceable as of the date of registration in the same manner as an order issued by a tribunal of this state;
(2) that a hearing to contest the validity or enforcement of the registered order shall be requested within twenty days after notice unless the registered order is under section 42-748.07;
(3) that failure to contest the validity or enforcement of the registered order in a timely manner will result in confirmation of the order and enforcement of the order and the alleged arrearages; and
(4) of the amount of any alleged arrearages.
(c) If the registering party asserts that two or more orders are in effect, a notice shall also:
(1) identify the two or more orders and the order alleged by the registering party to be the controlling order and the consolidated arrearages, if any;
(2) notify the nonregistering party of the right to a determination of which is the controlling order;
(3) state that the procedures provided in subsection (b) of this section apply to the determination of which is the controlling order; and
(4) state that failure to contest the validity or enforcement of the order alleged to be the controlling order in a timely manner may result in confirmation that the order is the controlling order.
(d) Upon registration of an income withholding order for enforcement, the support enforcement agency or the registering tribunal shall notify the obligor's employer pursuant to the Income Withholding for Child Support Act or sections 42-347 to 42-381.
Source: Laws 1993, LB 500, § 40; Laws 1997, LB 727, § 16; Laws 2003, LB 148, § 79; Laws 2015, LB415, § 38.
Cross References
(a) A nonregistering party seeking to contest the validity or enforcement of a registered support order in this state shall request a hearing within the time required by section 42-740. The nonregistering party may seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of any alleged arrearages pursuant to section 42-742.
(b) If the nonregistering party fails to contest the validity or enforcement of the registered support order in a timely manner, the order is confirmed by operation of law.
(c) If a nonregistering party requests a hearing to contest the validity or enforcement of the registered support order, the registering tribunal shall schedule the matter for hearing and give notice to the parties of the date, time, and place of the hearing.
Source: Laws 1993, LB 500, § 41; Laws 1997, LB 727, § 17; Laws 2015, LB415, § 39.
(a) A party contesting the validity or enforcement of a registered support order or seeking to vacate the registration has the burden of proving one or more of the following defenses:
(1) the issuing tribunal lacked personal jurisdiction over the contesting party;
(2) the order was obtained by fraud;
(3) the order has been vacated, suspended, or modified by a later order;
(4) the issuing tribunal has stayed the order pending appeal;
(5) there is a defense under the law of this state to the remedy sought;
(6) full or partial payment has been made;
(7) the statute of limitation under section 42-739 precludes enforcement of some or all of the alleged arrearages; or
(8) the alleged controlling order is not the controlling order.
(b) If a party presents evidence establishing a full or partial defense under subsection (a) of this section, a tribunal may stay enforcement of a registered support order, continue the proceeding to permit production of additional relevant evidence, and issue other appropriate orders. An uncontested portion of the registered support order may be enforced by all remedies available under the law of this state.
(c) If the contesting party does not establish a defense under such subsection to the validity or enforcement of a registered support order, the registering tribunal shall issue an order confirming the order.
Source: Laws 1993, LB 500, § 42; Laws 2003, LB 148, § 80; Laws 2015, LB415, § 40.
Annotations
Pursuant to section 42-743, a litigant is precluded from raising an equitable estoppel defense to challenge the enforcement or modification of a foreign support order once the foreign order has been confirmed pursuant to this section. Trogdon v. Trogdon, 18 Neb. App. 313, 780 N.W.2d 45 (2010).
Confirmation of a registered support order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.
Source: Laws 1993, LB 500, § 43; Laws 2015, LB415, § 41.
Annotations
Pursuant to this section, a litigant is precluded from raising an equitable estoppel defense to challenge the enforcement or modification of a foreign support order once the foreign order has been confirmed pursuant to section 42-742. Trogdon v. Trogdon, 18 Neb. App. 313, 780 N.W.2d 45 (2010).
A party or support enforcement agency seeking to modify, or to modify and enforce, a child support order issued in another state shall register that order in this state in the same manner provided in sections 42-736 to 42-743 if the order has not been registered. A petition for modification may be filed at the same time as a request for registration, or later. The pleading must specify the grounds for modification.
Source: Laws 1993, LB 500, § 44; Laws 2015, LB415, § 42.
Annotations
A party seeking to modify a child support order issued in another state shall register that order in Nebraska in accordance with the Uniform Interstate Family Support Act if the order has not been previously registered. Lamb v. Lamb, 14 Neb. App. 337, 707 N.W.2d 423 (2005).
A tribunal of this state may enforce a child support order of another state registered for purposes of modification, in the same manner as if the order had been issued by a tribunal of this state, but the registered support order may be modified only if the requirements of section 42-746 or 42-747.01 have been met.
Source: Laws 1993, LB 500, § 45; Laws 2003, LB 148, § 81; Laws 2015, LB415, § 43.
(a) If section 42-747.01 does not apply, upon petition a tribunal of this state may modify a child support order issued in another state which is registered in this state if, after notice and hearing, the tribunal finds that:
(1) the following requirements are met:
(A) neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state;
(B) a petitioner who is a nonresident of this state seeks modification; and
(C) the respondent is subject to the personal jurisdiction of the tribunal of this state; or
(2) this state is the residence of the child, or a party who is an individual is subject to the personal jurisdiction of the tribunal of this state, and all of the parties who are individuals have filed consents in a record in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction.
(b) Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this state and the order may be enforced and satisfied in the same manner.
(c) A tribunal of this state shall not modify any aspect of a child support order that cannot be modified under the law of the issuing state, including the duration of the obligation of support. If two or more tribunals have issued child support orders for the same obligor and the same child, the order that controls and must be so recognized under section 42-711 establishes the aspects of the support order which are nonmodifiable.
(d) In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor's fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this state.
(e) On the issuance of an order by a tribunal of this state modifying a child support order issued in another state, the tribunal of this state becomes the tribunal having continuing, exclusive jurisdiction.
(f) Notwithstanding subsections (a) through (e) of this section and subsection (b) of section 42-705, a tribunal of this state retains jurisdiction to modify an order issued by a tribunal of this state if:
(1) one party resides in another state; and
(2) the other party resides outside the United States.
Source: Laws 1993, LB 500, § 46; Laws 1997, LB 727, § 18; Laws 2003, LB 148, § 82; Laws 2015, LB415, § 44.
Annotations
Under this section and section 42-739, a responding state becomes an issuing state when it assumes continuing, exclusive jurisdiction to modify a foreign child support order and must apply its own substantive law to the modification. Under this section, a responding state acquires jurisdiction to modify the child support provisions of a foreign divorce decree once the following three conditions are met: (1) Both the parents and the children have moved away from the issuing state; (2) one of the parents, who is a nonresident of the responding state, seeks modification in the responding state, and (3) the other parent becomes subject to the personal jurisdiction of the responding state. Groseth v. Groseth, 257 Neb. 525, 600 N.W.2d 159 (1999).
Where the parties' marriage was dissolved in New Mexico when both parties resided there, and after both parties and the subject children moved to Nebraska, the law of New Mexico, as the state which issued the initial controlling child support order, governed the duration of the child support obligation in a Nebraska modification proceeding. Wills v. Wills, 16 Neb. App. 559, 745 N.W.2d 924 (2008).
The first predicate for a Nebraska court to have subject matter jurisdiction to modify another state's child support order is registration in Nebraska of such order. Lamb v. Lamb, 14 Neb. App. 337, 707 N.W.2d 423 (2005).
If a child support order issued by a tribunal of this state is modified by a tribunal of another state which assumed jurisdiction pursuant to the Uniform Interstate Family Support Act, a tribunal of this state, upon request, except as otherwise provided in the act:
(1) may enforce its order that was modified only as to arrearages and interest accruing before the modification;
(2) may provide appropriate relief for violations of its order which occurred before the effective date of the modification; and
(3) shall recognize the modifying order of the other state, upon registration, for the purpose of enforcement.
Source: Laws 1993, LB 500, § 47; Laws 1997, LB 727, § 19; Laws 2003, LB 148, § 83.
(a) If all of the parties who are individuals reside in this state and the child does not reside in the issuing state, a tribunal of this state has jurisdiction to enforce and to modify the issuing state's child support order in a proceeding to register that order.
(b) A tribunal of this state exercising jurisdiction under this section shall apply the provisions of sections 42-701 to 42-713.02 and 42-736 to 42-747.04 and the procedural and substantive law of this state to the enforcement or modification proceeding. Sections 42-714 to 42-735 and 42-748.01 to 42-750 do not apply.
Source: Laws 1997, LB 727, § 20; Laws 2003, LB 148, § 84; Laws 2015, LB415, § 45.
Annotations
Under this section, the provisions of section 42-746(c) and (d) are applied to a modification proceeding and govern the duration of the obligation of support. Wills v. Wills, 16 Neb. App. 559, 745 N.W.2d 924 (2008).
Within thirty days after issuance of a modified child support order, the party obtaining the modification shall file a certified copy of the order with the issuing tribunal that had continuing, exclusive jurisdiction over the earlier order, and in each tribunal in which the party knows the earlier order has been registered. A party who obtains the order and fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure to file does not affect the validity or enforceability of the modified order of the new tribunal having continuing, exclusive jurisdiction.
Source: Laws 1997, LB 727, § 21.
(a) Except as otherwise provided in section 42-748.11, if a foreign country lacks or refuses to exercise jurisdiction to modify its child support order pursuant to its laws, a tribunal of this state may assume jurisdiction to modify the child support order and bind all individuals subject to the personal jurisdiction of the tribunal whether the consent to modification of a child support order otherwise required of the individual pursuant to section 42-746 has been given or whether the individual seeking modification is a resident of this state or of the foreign country.
(b) An order issued by a tribunal of this state modifying a foreign child support order pursuant to this section is the controlling order.
Source: Laws 2003, LB 148, § 85; Laws 2015, LB415, § 46.
A party or support enforcement agency seeking to modify, or to modify and enforce, a foreign child-support order not under the Convention may register that order in this state under sections 42-736 to 42-743 if the order has not been registered. A petition for modification may be filed at the same time as a request for registration, or at another time. The petition must specify the grounds for modification.
Source: Laws 2015, LB415, § 47.
Repealed. Laws 2015, LB 415, § 64.
For purposes of sections 42-748.01 to 42-748.13:
(1) Application means a request under the Convention by an obligee or obligor, or on behalf of a child, made through a central authority for assistance from another central authority.
(2) Central authority means the entity designated by the United States or a foreign country described in subdivision (5)(D) of section 42-702 to perform the functions specified in the Convention.
(3) Convention support order means a support order of a tribunal of a foreign country described in subdivision (5)(D) of section 42-702.
(4) Direct request means a petition filed by an individual in a tribunal of this state in a proceeding involving an obligee, an obligor, or a child residing outside the United States.
(5) Foreign central authority means the entity designated by a foreign country described in subdivision (5)(D) of section 42-702 to perform the functions specified in the Convention.
(6) Foreign support agreement:
(A) means an agreement for support in a record that:
(i) is enforceable as a support order in the country of origin;
(ii) has been:
(I) formally drawn up or registered as an authentic instrument by a foreign tribunal; or
(II) authenticated by, or concluded, registered, or filed with a foreign tribunal; and
(iii) may be reviewed and modified by a foreign tribunal; and
(B) includes a maintenance arrangement or authentic instrument under the Convention.
(7) United States central authority means the Secretary of the United States Department of Health and Human Services.
Source: Laws 2015, LB415, § 48.
Sections 42-748.01 to 42-748.13 apply only to a support proceeding under the Convention. In such a proceeding, if a provision of such sections is inconsistent with sections 42-701 to 42-747.04, sections 42-748.01 to 42-748.13 control.
Source: Laws 2015, LB415, § 49.
The Nebraska Department of Health and Human Services is recognized as the agency designated by the United States central authority to perform specific functions under the Convention.
Source: Laws 2015, LB415, § 50.
(a) In a support proceeding under sections 42-748.01 to 42-748.13, the Nebraska Department of Health and Human Services shall:
(1) transmit and receive applications; and
(2) initiate or facilitate the institution of a proceeding regarding an application in a tribunal of this state.
(b) The following support proceedings are available to an obligee under the Convention:
(1) recognition or recognition and enforcement of a foreign support order;
(2) enforcement of a support order issued or recognized in this state;
(3) establishment of a support order if there is no existing order, including, if necessary, determination of parentage of a child;
(4) establishment of a support order if recognition of a foreign support order is refused under subdivision (b)(2), (4), or (9) of section 42-748.08;
(5) modification of a support order of a tribunal of this state; and
(6) modification of a support order of a tribunal of another state or a foreign country.
(c) The following support proceedings are available under the Convention to an obligor against which there is an existing support order:
(1) recognition of an order suspending or limiting enforcement of an existing support order of a tribunal of this state;
(2) modification of a support order of a tribunal of this state; and
(3) modification of a support order of a tribunal of another state or a foreign country.
(d) A tribunal of this state may not require security, bond, or deposit, however described, to guarantee the payment of costs and expenses in proceedings under the Convention.
Source: Laws 2015, LB415, § 51.
(a) A petitioner may file a direct request seeking establishment or modification of a support order or determination of parentage of a child. In the proceeding, the law of this state applies.
(b) A petitioner may file a direct request seeking recognition and enforcement of a support order or support agreement. In the proceeding, sections 42-748.06 to 42-748.13 apply.
(c) In a direct request for recognition and enforcement of a Convention support order or foreign support agreement:
(1) a security, bond, or deposit is not required to guarantee the payment of costs and expenses; and
(2) an obligee or obligor that in the issuing country has benefited from free legal assistance is entitled to benefit, at least to the same extent, from any free legal assistance provided for by the law of this state under the same circumstances.
(d) A petitioner filing a direct request is not entitled to assistance from the Nebraska Department of Health and Human Services.
(e) Sections 42-748.01 to 42-748.13 do not prevent the application of laws of this state that provide simplified, more expeditious rules regarding a direct request for recognition and enforcement of a foreign support order or foreign support agreement.
Source: Laws 2015, LB415, § 52.
(a) Except as otherwise provided in sections 42-748.01 to 42-748.13, a party who is an individual or a support enforcement agency seeking recognition of a Convention support order shall register the order in this state as provided in sections 42-736 to 42-747.04.
(b) Notwithstanding section 42-724 and subsection (a) of section 42-737, a request for registration of a Convention support order must be accompanied by:
(1) a complete text of the support order or an abstract or extract of the support order drawn up by the issuing foreign tribunal, which may be in the form recommended by the Hague Conference on Private International Law;
(2) a record stating that the support order is enforceable in the issuing country;
(3) if the respondent did not appear and was not represented in the proceedings in the issuing country, a record attesting, as appropriate, either that the respondent had proper notice of the proceedings and an opportunity to be heard or that the respondent had proper notice of the support order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal;
(4) a record showing the amount of arrears, if any, and the date the amount was calculated;
(5) a record showing a requirement for automatic adjustment of the amount of support, if any, and the information necessary to make the appropriate calculations; and
(6) if necessary, a record showing the extent to which the applicant received free legal assistance in the issuing country.
(c) A request for registration of a Convention support order may seek recognition and partial enforcement of the order.
(d) A tribunal of this state may vacate the registration of a Convention support order without the filing of a contest under section 42-748.07 only if, acting on its own motion, the tribunal finds that recognition and enforcement of the order would be manifestly incompatible with public policy.
(e) The tribunal shall promptly notify the parties of the registration or the order vacating the registration of a Convention support order.
Source: Laws 2015, LB415, § 53.
(a) Except as otherwise provided in sections 42-748.01 to 42-748.13, sections 42-740 to 42-743 apply to a contest of a registered Convention support order.
(b) A party contesting a registered Convention support order shall file a contest not later than thirty days after notice of the registration, but if the contesting party does not reside in the United States, the contest must be filed not later than sixty days after notice of the registration.
(c) If the nonregistering party fails to contest the registered Convention support order by the time specified in subsection (b) of this section, the order is enforceable.
(d) A contest of a registered Convention support order may be based only on grounds set forth in section 42-748.08. The contesting party bears the burden of proof.
(e) In a contest of a registered Convention support order, a tribunal of this state:
(1) is bound by the findings of fact on which the foreign tribunal based its jurisdiction; and
(2) may not review the merits of the order.
(f) A tribunal of this state deciding a contest of a registered Convention support order shall promptly notify the parties of its decision.
(g) A challenge or appeal, if any, does not stay the enforcement of a Convention support order unless there are exceptional circumstances.
Source: Laws 2015, LB415, § 54.
(a) Except as otherwise provided in subsection (b) of this section, a tribunal of this state shall recognize and enforce a registered Convention support order.
(b) The following grounds are the only grounds on which a tribunal of this state may refuse recognition and enforcement of a registered Convention support order:
(1) recognition and enforcement of the order is manifestly incompatible with public policy, including the failure of the issuing tribunal to observe minimum standards of due process, which include notice and an opportunity to be heard;
(2) the issuing tribunal lacked personal jurisdiction consistent with section 42-705;
(3) the order is not enforceable in the issuing country;
(4) the order was obtained by fraud in connection with a matter of procedure;
(5) a record transmitted in accordance with section 42-748.06 lacks authenticity or integrity;
(6) a proceeding between the same parties and having the same purpose is pending before a tribunal of this state and that proceeding was the first to be filed;
(7) the order is incompatible with a more recent support order involving the same parties and having the same purpose if the more recent support order is entitled to recognition and enforcement under the Uniform Interstate Family Support Act in this state;
(8) payment, to the extent alleged arrears have been paid in whole or in part;
(9) in a case in which the respondent neither appeared nor was represented in the proceeding in the issuing foreign country:
(A) if the law of that country provides for prior notice of proceedings, the respondent did not have proper notice of the proceedings and an opportunity to be heard; or
(B) if the law of that country does not provide for prior notice of the proceedings, the respondent did not have proper notice of the order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal; or
(10) the order was made in violation of section 42-748.11.
(c) If a tribunal of this state does not recognize a Convention support order under subdivision (b)(2), (4), or (9) of this section:
(1) the tribunal may not dismiss the proceeding without allowing a reasonable time for a party to request the establishment of a new Convention support order; and
(2) the Nebraska Department of Health and Human Services shall take all appropriate measures to request a child-support order for the obligee if the application for recognition and enforcement was received under section 42-748.04.
Source: Laws 2015, LB415, § 55.
If a tribunal of this state does not recognize and enforce a Convention support order in its entirety, it shall enforce any severable part of the order. An application or direct request may seek recognition and partial enforcement of a Convention support order.
Source: Laws 2015, LB415, § 56.
(a) Except as otherwise provided in subsections (c) and (d) of this section, a tribunal of this state shall recognize and enforce a foreign support agreement registered in this state.
(b) An application or direct request for recognition and enforcement of a foreign support agreement must be accompanied by:
(1) a complete text of the foreign support agreement; and
(2) a record stating that the foreign support agreement is enforceable as an order of support in the issuing country.
(c) A tribunal of this state may vacate the registration of a foreign support agreement only if, acting on its own motion, the tribunal finds that recognition and enforcement would be manifestly incompatible with public policy.
(d) In a contest of a foreign support agreement, a tribunal of this state may refuse recognition and enforcement of the agreement if it finds:
(1) recognition and enforcement of the agreement is manifestly incompatible with public policy;
(2) the agreement was obtained by fraud or falsification;
(3) the agreement is incompatible with a support order involving the same parties and having the same purpose in this state, another state, or a foreign country if the support order is entitled to recognition and enforcement under the Uniform Interstate Family Support Act in this state; or
(4) the record submitted under subsection (b) of this section lacks authenticity or integrity.
(e) A proceeding for recognition and enforcement of a foreign support agreement must be suspended during the pendency of a challenge to or appeal of the agreement before a tribunal of another state or a foreign country.
Source: Laws 2015, LB415, § 57.
(a) A tribunal of this state may not modify a Convention child support order if the obligee remains a resident of the foreign country where the support order was issued unless:
(1) the obligee submits to the jurisdiction of a tribunal of this state, either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity; or
(2) the foreign tribunal lacks or refuses to exercise jurisdiction to modify its support order or issue a new support order.
(b) If a tribunal of this state does not modify a Convention child support order because the order is not recognized in this state, subsection (c) of section 42-748.08 applies.
Source: Laws 2015, LB415, § 58.
Personal information gathered or transmitted under sections 42-748.01 to 42-748.13 may be used only for the purposes for which it was gathered or transmitted.
Source: Laws 2015, LB415, § 59.
A record filed with a tribunal of this state under sections 42-748.01 to 42-748.13 must be in the original language and, if not in English, must be accompanied by an English translation.
Source: Laws 2015, LB415, § 60.
(a) For purposes of sections 42-749 and 42-750, Governor includes an individual performing the functions of Governor or the executive authority of a state covered by the Uniform Interstate Family Support Act.
(b) The Governor of this state may:
(1) demand that the Governor of another state surrender an individual found in the other state who is charged criminally in this state with having failed to provide for the support of an obligee; or
(2) on the demand of the Governor of another state, surrender an individual found in this state who is charged criminally in the other state with having failed to provide for the support of an obligee.
(c) A provision for extradition of individuals not inconsistent with the act applies to the demand even if the individual whose surrender is demanded was not in the demanding state when the crime was allegedly committed and has not fled therefrom.
Source: Laws 1993, LB 500, § 49; Laws 2003, LB 148, § 87.
(a) Before making a demand that the Governor of another state surrender an individual charged criminally in this state with having failed to provide for the support of an obligee, the Governor of this state may require a prosecutor of this state to demonstrate that at least sixty days previously the obligee had initiated proceedings for support pursuant to the Uniform Interstate Family Support Act or that the proceeding would be of no avail.
(b) If, under the Uniform Interstate Family Support Act or a law substantially similar to the act, the Governor of another state makes a demand that the Governor of this state surrender an individual charged criminally in that state with having failed to provide for the support of a child or other individual to whom a duty of support is owed, the Governor may require a prosecutor to investigate the demand and report whether a proceeding for support has been initiated or would be effective. If it appears that a proceeding would be effective but has not been initiated, the Governor may delay honoring the demand for a reasonable time to permit the initiation of a proceeding.
(c) If a proceeding for support has been initiated and the individual whose rendition is demanded prevails, the Governor may decline to honor the demand. If the petitioner prevails and the individual whose rendition is demanded is subject to a support order, the Governor may decline to honor the demand if the individual is complying with the support order.
Source: Laws 1993, LB 500, § 50; Laws 2003, LB 148, § 88.
In applying and construing the Uniform Interstate Family Support Act, consideration shall be given to the need to provide uniformity of the law with respect to the subject matter of the act among states that enact it.
Source: Laws 1993, LB 500, § 51; Laws 2003, LB 148, § 89.
Annotations
The general purpose of the Uniform Interstate Family Support Act, according to an express provision in this section, is to make uniform the law with respect to the model act among states enacting it. Groseth v. Groseth, 257 Neb. 525, 600 N.W.2d 159 (1999).
The changes to the Uniform Interstate Family Support Act made by Laws 2015, LB415, apply to proceedings begun on or after April 30, 2015, to establish a support order or determine parentage of a child or to register, recognize, enforce, or modify a prior support order, determination, or agreement, whenever issued or entered.
Source: Laws 2015, LB415, § 61.
Repealed. Laws 1971, LB 464, § 43.
Repealed. Laws 1971, LB 464, § 43.
Repealed. Laws 1971, LB 464, § 43.
Repealed. Laws 1971, LB 464, § 43.
Repealed. Laws 1971, LB 464, § 43.
Repealed. Laws 1971, LB 464, § 43.
Repealed. Laws 1971, LB 464, § 43.
Repealed. Laws 1971, LB 464, § 43.
Repealed. Laws 1971, LB 464, § 43.
Repealed. Laws 1971, LB 464, § 43.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Repealed. Laws 1993, LB 500, § 61.
Any action or proceeding under the Revised Uniform Reciprocal Enforcement of Support Act pending on January 1, 1994, shall continue under the provisions of such act until the court rules on any pending action or proceeding.
Source: Laws 1993, LB 500, § 57.
The purposes of sections 42-801 to 42-823 are to protect the rights of children and to promote the public welfare by preserving, promoting, and protecting family life and the institution of matrimony, and to provide means for the reconciliation of spouses and the amicable settlement of domestic and family controversies.
Source: Laws 1965, c. 228, § 1, p. 654.
Sections 42-801 to 42-823 may be cited as the Conciliation Court Law.
Source: Laws 1965, c. 228, § 2, p. 654.
The provisions of the Conciliation Court Law shall be applicable only in counties in which the county court and the district court determines that the social conditions in the county and the number of domestic relations cases in the courts render the procedures provided in such law necessary to the full and proper consideration of such cases and the effectuation of the purposes of such law. Such determination shall be made annually in the month of December.
Source: Laws 1965, c. 228, § 3, p. 654; Laws 1997, LB 229, § 22.
Annotations
The Conciliation Court Law is not applicable in counties in which the district court has failed to find the procedures therein provided for to be necessary. Condreay v. Condreay, 190 Neb. 513, 209 N.W.2d 357 (1973).
Each county court and district court shall exercise the jurisdiction conferred by the Conciliation Court Law and while sitting in the exercise of such jurisdiction shall be known and referred to as the conciliation court. All petitions and filings shall be made with the clerk of the district court and may be heard by the county court or the district court as provided in section 25-2740.
Source: Laws 1965, c. 228, § 4, p. 655; Laws 1997, LB 229, § 23.
In counties having more than one judge of the district court, the judges at their annual meeting shall designate at least one judge of the county court or district court to hear cases under the Conciliation Court Law. Such assignment may be exclusive or in conjunction with any other assignment. The judge or judges so designated shall hold as many sessions of the conciliation court as are necessary for the prompt disposition of the business before the court.
Source: Laws 1965, c. 228, § 5, p. 655; Laws 1997, LB 229, § 24.
The judge of the conciliation court may transfer any case before the conciliation court pursuant to the Conciliation Court Law to the presiding judge of the county court or to the presiding judge of the district court, as appropriate, for assignment for trial or other proceedings by another judge of the court, whenever in the opinion of the judge of the conciliation court such transfer is necessary to expedite the business of the conciliation court or to insure the prompt consideration of the case. When any case is so transferred, the judge to whom it is transferred shall act as the judge of the conciliation court in the matter.
Source: Laws 1965, c. 228, § 6, p. 655; Laws 1997, LB 229, § 25.
The presiding judge of the court may appoint a judge of the court other than the judge of the conciliation court to act as judge of the conciliation court during any period when the judge of the conciliation court is on vacation, absent, or for any reason unable to perform his or her duties. Any judge so appointed shall have all of the powers and authority of a judge of the conciliation court in cases under the Conciliation Court Law.
Source: Laws 1965, c. 228, § 7, p. 655; Laws 1997, LB 229, § 26.
(1) In each county with a population of two hundred fifty thousand inhabitants or more, the county court and district court may appoint one counselor of conciliation and one secretary to assist the conciliation court in disposing of its business and carrying out its functions.
(2) The counselor of conciliation so appointed shall have the power to:
(a) Hold conciliation conferences with parties to and hearings in proceedings under the Conciliation Court Law and make recommendations concerning such proceedings to the judge of the conciliation court;
(b) Provide such supervision in connection with the exercise of his or her jurisdiction as the judge of the conciliation court may direct;
(c) Cause such reports to be made, such statistics to be compiled, and such records to be kept as the judge of the conciliation court may direct;
(d) Hold such hearings in all conciliation court cases as may be required by the judge of the conciliation court and make such investigations as may be required by the court to carry out the intent of the Conciliation Court Law;
(e) Make investigations provided for by sections 42-351 and 42-358 as may be directed by the judge of the conciliation court; and
(f) Hold informal hearings under section 42-367 and make recommendations to the court for entry of orders thereunder as may be directed by the judge of the conciliation court.
(3) The judge of the conciliation court may also appoint, with the consent of the board of county commissioners, such associate counselors of conciliation and other office assistants as may be necessary to assist the conciliation court in disposing of its business. Such associate counselors shall carry out their duties under the supervision of the judge of the conciliation court and shall have all the powers of the counselor of conciliation. Office assistants shall work under the supervision and direction of the counselor of conciliation.
(4) Salaries of persons appointed under this section shall be fixed by the board of county commissioners. All persons appointed under this section may be dismissed for any reason by a majority vote of the judges of the county court and the district court of the county.
(5) The board of county commissioners shall furnish adequate office space, equipment, and supplies for the use of the personnel of the conciliation court.
Source: Laws 1965, c. 228, § 8, p. 655; Laws 1989, LB 23, § 3; Laws 1997, LB 229, § 27.
(1) In each county having a population of less than two hundred fifty thousand inhabitants, the county court and district court may appoint, with the consent and approval of the board of county commissioners, the following persons to assist the conciliation court in disposing of its business and carrying out its functions:
(a) One counselor of conciliation who shall have the powers provided in subsection (2) of section 42-808; and
(b) Such associate counselors and office assistants as may be required to properly handle the work of the court.
(2) The salaries of persons appointed under the provisions of this section shall be fixed by the board of county commissioners of the county. All persons appointed under the provisions of this section may be dismissed for any reason by a majority vote of the judges of the district court of the county.
(3) The board of county commissioners shall furnish adequate office space, equipment, and supplies for the use of the personnel of the conciliation court.
(4) The county court and district court or the board of county commissioners may, at any time, abolish any or all positions created pursuant to the provisions of this section.
Source: Laws 1965, c. 228, § 9, p. 657; Laws 1997, LB 229, § 28.
(1) All court hearings or conferences in proceedings under the provisions of the Conciliation Court Law shall be held in private and the court shall exclude all persons except the officers of the court, the parties, their counsel, and witnesses. Conferences may be held with each party and his or her counsel separately and in the discretion of the judge or counselor conducting the conference or hearing, counsel for one party may be excluded when the adverse party is present. All communications, verbal or written, from parties to the judge or counselor in a proceeding under the provisions of such law shall be deemed made to such officer in official confidence.
(2) The files of the conciliation court shall be closed. The petition, supporting affidavit, reconciliation agreement, and any court order made in the matter may be opened to inspection by any party or his or her counsel upon the written authority of the judge of the conciliation court.
Source: Laws 1965, c. 228, § 10, p. 657; Laws 1997, LB 229, § 29.
Whenever any controversy exists between spouses which may, unless a reconciliation is achieved, result in the dissolution or annulment of the marriage or in the disruption of the household, and there is any minor child of the spouses or of either of them whose welfare might be affected thereby, the conciliation court shall have jurisdiction over the controversy, and over the parties thereto and all persons having any relation to the controversy as further provided in sections 42-801 to 42-823.
Source: Laws 1965, c. 228, § 11, p. 658.
Prior to the filing of any action for divorce, annulment, or separate maintenance, either spouse or both spouses may file a petition with the clerk of the district court of the county of the residence of either spouse wherein a conciliation court has been established, invoking the jurisdiction of the conciliation court for the purpose of preserving the marriage by effecting a reconciliation between the parties, or for amicable settlement of the controversy between the spouses, so as to avoid further litigation over the issue involved.
Source: Laws 1965, c. 228, § 12, p. 658; Laws 1996, LB 1296, § 16; Laws 1997, LB 229, § 30.
The petition shall be captioned substantially as follows:
In the (County or District) Court of ................ County, Nebraska
Source: Laws 1965, c. 228, § 13, p. 658; Laws 1997, LB 229, § 31.
The petition shall:
(1) Allege that a controversy exists between the spouses and request the aid of the court to effect a reconciliation or an amicable settlement of the controversy;
(2) State the name and age of each minor child whose welfare may be affected by the controversy;
(3) State the name and address of the petitioner, or the names and addresses of the petitioners;
(4) If the petition is presented by one spouse only, name the other spouse as a respondent, and state the address of that spouse;
(5) Name as a respondent any other person who has any relation to the controversy, and state the address of the person, if known to the petitioner; and
(6) State such other information as the conciliation court may by rule require.
Source: Laws 1965, c. 228, § 14, p. 659.
The clerk of the district court shall provide, at the expense of the county, blank forms for petitions for filing pursuant to the provisions of sections 42-801 to 42-823. All public welfare employees and employees of the conciliation court shall refer to the conciliation court all petitions and complaints made to them in respect to controversies within the jurisdiction of the conciliation court.
Source: Laws 1965, c. 228, § 15, p. 659.
No fee shall be charged by any officer for filing the petition, nor shall any fee be charged by any officer for the performance of any duty pursuant to the provisions of sections 42-801 to 42-823.
Source: Laws 1965, c. 228, § 16, p. 660.
The court shall fix a reasonable time and place for hearing on the petition and shall cause such notice of the filing of the petition and of the time and place of the hearing as it deems necessary to be given to the respondents. The court may, when it deems it necessary, issue a citation to any respondent requiring him to appear at the time and place stated in the citation, and may require the attendance of witnesses as in other civil cases.
Source: Laws 1965, c. 228, § 17, p. 660.
For the purpose of conducting hearings pursuant to the provisions of sections 42-801 to 42-823, the conciliation court may be convened at any time and place within the county, and the hearing may be had in chambers or otherwise, except that the time and place for hearing shall not be different from the time and place provided by law for the trial of civil actions if any party, prior to the hearing, objects to any different time or place.
Source: Laws 1965, c. 228, § 18, p. 660.
The hearing shall be conducted informally as a conference or series of conferences to effect a reconciliation of the spouses or an amicable adjustment or settlement of the issues of the controversy. To facilitate and promote the purposes of sections 42-801 to 42-823, the court may, with the consent of both of the parties to the proceeding, recommend or invoke the aid of physicians, psychiatrists, endocrinologists, or other specialists or scientific experts, or of the pastor or director of any religious denomination to which the parties may belong. Such aid shall not be at the expense of the court or of the county unless the board of county commissioners specifically provides and authorizes such aid.
Source: Laws 1965, c. 228, § 19, p. 660.
(1) At or after the hearing, the court may make such orders in respect to the conduct of the spouses and the subject matter of the controversy as the court deems necessary to preserve the marriage or to implement the reconciliation of the spouses, but in no event shall such orders be effective for more than thirty days from the hearing of the petition, unless the parties mutually consent to a continuation of such time.
(2) Any reconciliation agreement between the parties may be reduced to writing and, with the consent of the parties, a court order may be made requiring the parties to comply therewith.
Source: Laws 1965, c. 228, § 20, p. 660.
(1) During a period beginning upon the filing of the petition for conciliation and continuing until the earlier of (a) thirty days after the hearing of the petition for conciliation or (b) the dismissal of the petition, neither spouse shall file any action for dissolution of marriage, annulment of marriage, or separate maintenance, except that, for the purpose of protecting the minor children of the parties and the parties, the county court and district court shall have authority after proper notice to enter orders for temporary custody of minor children, temporary child support, and temporary alimony, notwithstanding any such reconciliation proceedings. An order for temporary child support or an order for temporary alimony which is a part of an order providing for temporary child support when the spouse and child reside in the same household shall be governed by the provisions of sections 42-347 to 42-381 relating to child and spousal support. Certified copies of such orders shall be filed by the clerk of the court and treated in the same manner as other such orders.
(2) If, after the expiration of the period specified in subsection (1) of this section, the controversy between the spouses has not been terminated, either spouse may institute proceedings for dissolution of marriage, annulment of marriage, or separate maintenance. The pendency of a dissolution of marriage, annulment, or separate maintenance action shall not operate as a bar to the instituting of proceedings for conciliation under the Conciliation Court Law, but if such action is pending before a petition for conciliation is filed, the court may permit proceeding with such action at any time for good cause shown.
Source: Laws 1965, c. 228, § 21, p. 661; Laws 1976, LB 926, § 3; Laws 1982, LB 720, § 3; Laws 1985, Second Spec. Sess., LB 7, § 20; Laws 1996, LB 1296, § 17; Laws 1997, LB 229, § 32.
Whenever any action for divorce, annulment of marriage, or separate maintenance is filed and it appears to the court at any time during the pendency of the action that there is any minor child of the spouses or of either of them whose welfare may be adversely affected by the dissolution or annulment of the marriage or the disruption of the household and that there appears to be some reasonable possibility of a reconciliation being effected, the case may be transferred to the conciliation court for proceedings for reconciliation of the spouses or amicable settlement of issues in controversy, in accordance with the Conciliation Court Law.
Source: Laws 1965, c. 228, § 22, p. 661; Laws 1996, LB 1296, § 18; Laws 1997, LB 229, § 33.
Whenever application is made to the conciliation court for conciliation proceedings in respect to a controversy between spouses, or a contested action for divorce, annulment of marriage, or separate maintenance, but there is no minor child whose welfare may be affected by the results of the controversy, and it appears to the court that reconciliation of the spouses or amicable adjustment of the controversy can probably be achieved, and that the work of the court in cases involving children will not be seriously impeded by acceptance of the case in the same manner as similar cases involving the welfare of children are disposed of, such acceptance may be made. In the event of such application and acceptance, the court shall have the same jurisdiction over the controversy and the parties thereto, or having any relation thereto, that it has under the provisions of sections 42-801 to 42-823 in similar cases involving the welfare of children.
Source: Laws 1965, c. 228, § 23, p. 662.
Sections 42-901 to 42-930 shall be known and may be cited as the Protection from Domestic Abuse Act.
Source: Laws 1978, LB 623, § 1; Laws 1989, LB 330, § 4; Laws 1997, LB 829, § 1; Laws 1998, LB 218, § 17; Laws 2025, LB80, § 39.
The Legislature hereby finds and declares that there is a present and growing need to develop services which will lessen and reduce the trauma of domestic abuse. It is the intent of the Protection from Domestic Abuse Act to provide abused family and household members necessary services including shelter, counseling, social services, and limited medical care and legal assistance.
Source: Laws 1978, LB 623, § 2; Laws 1997, LB 829, § 2.
For purposes of the Protection from Domestic Abuse Act, unless the context otherwise requires:
(1) Abuse means the occurrence of one or more of the following acts between family or household members:
(a) Attempting to cause or intentionally and knowingly causing bodily injury with or without a dangerous instrument;
(b) Placing, by means of credible threat, another person in fear of bodily injury. For purposes of this subdivision, credible threat means a verbal or written threat, including a threat performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct that is made by a person with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the person making the threat had the intent to actually carry out the threat. The present incarceration of the person making the threat shall not prevent the threat from being deemed a credible threat under this section; or
(c) Engaging in sexual contact or sexual penetration without consent as defined in section 28-318;
(2) Department means the Department of Health and Human Services;
(3) Family or household members includes spouses or former spouses, children, persons who are presently residing together or who have resided together in the past, persons who have a child in common whether or not they have been married or have lived together at any time, other persons related by consanguinity or affinity, and persons who are presently involved in a dating relationship with each other or who have been involved in a dating relationship with each other. For purposes of this subdivision, dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement, but does not include a casual relationship or an ordinary association between persons in a business or social context; and
(4) Law enforcement agency means the police department or town marshal in incorporated municipalities, the office of the sheriff in unincorporated areas, and the Nebraska State Patrol.
Source: Laws 1978, LB 623, § 3; Laws 1986, LB 448, § 1; Laws 1989, LB 330, § 5; Laws 1992, LB 1098, § 6; Laws 1993, LB 299, § 4; Laws 1996, LB 1044, § 103; Laws 1998, LB 218, § 18; Laws 2004, LB 613, § 12; Laws 2012, LB310, § 2; Laws 2017, LB289, § 13; Laws 2023, LB157, § 11; Laws 2025, LB80, § 40.
Annotations
"Affinity" means the relationship that arises as a result of the marriage contract between one spouse and the blood relations of the other, in contradistinction from consanguinity or relationship by blood. Aguilar v. Valdez-Mendoza, 318 Neb. 402, 16 N.W.3d 130 (2025).
Not only is the recipient or target of a credible threat a "victim" of abuse eligible for a domestic abuse protection order under section 42-924, so too are those family members for whose safety the target reasonably fears because of the threat. Robert M. on behalf of Bella O. v. Danielle O., 303 Neb. 268, 928 N.W.2d 407 (2019).
The "credible threat" language in this section means that the evidence at trial must include some threat of intentional physical injury or any other physical threat. Linda N. v. William N., 289 Neb. 607, 856 N.W.2d 436 (2014).
The legislative intent of the language in this section is to allow a victim of abuse, law enforcement, and prosecutors to take steps toward preventing a threatened act of domestic abuse from actually becoming an act that leads to physical harm of the victim. Linda N. v. William N., 289 Neb. 607, 856 N.W.2d 436 (2014).
Subsection (1) of this section does not impose any limitation on the time during which a victim of domestic abuse resulting in bodily injury can file a petition and affidavit seeking a protection order. However, this does not mean that the remoteness of the abuse is irrelevant to the issue of whether a protection order is warranted. Sarah K. v. Jonathan K., 23 Neb. App. 471, 873 N.W.2d 428 (2015).
The term "physical menace" within the meaning of the abuse definition means a physical threat or act and requires more than mere words. Beemer v. Hammer, 20 Neb. App. 579, 826 N.W.2d 599 (2013).
Text messages cannot be construed to be within the meaning of physical menace, because words alone are not a physical threat or act within the purview of subsection (1)(b) of this section. Cloeter v. Cloeter, 17 Neb. App. 741, 770 N.W.2d 660 (2009).
The phrase "imminent bodily injury" within the context of subsection (1)(b) of this section means a certain, immediate, and real threat to one's safety which places one in immediate danger of bodily injury; that is, bodily injury is likely to occur at any moment. Cloeter v. Cloeter, 17 Neb. App. 741, 770 N.W.2d 660 (2009).
The term "physical menace" as used in subsection (1)(b) of this section means a physical threat or act and requires more than mere words. Cloeter v. Cloeter, 17 Neb. App. 741, 770 N.W.2d 660 (2009).
The department shall establish and maintain comprehensive support services to aid victims of domestic abuse and to provide prevention and treatment programs to aid victims of domestic abuse, their families, and abusers.
Source: Laws 1978, LB 623, § 4.
The comprehensive support services shall include, but not be limited to:
(1) Emergency services for victims of abuse and their families;
(2) Support programs that meet specific needs of victims of abuse and their families;
(3) Education, counseling, and supportive programs for the abuser;
(4) Programs to aid in the prevention and elimination of domestic violence which shall include education and public awareness; and
(5) Assistance in completing the standard petition and affidavit forms for persons who file a petition and affidavit for a domestic abuse protection order under the Protection Orders Act.
Source: Laws 1978, LB 623, § 5; Laws 1989, LB 330, § 6; Laws 1998, LB 218, § 19; Laws 2025, LB80, § 41.
Cross References
The department shall provide the support services as provided in section 42-905 to any person who seeks such services.
Source: Laws 1978, LB 623, § 6.
The department shall provide emergency services which shall consist of up to seventy-two hours of crisis intervention services including:
(1) Constant access and intake to services;
(2) Immediate transportation from a victim's home or other location to a hospital or a place of safety;
(3) Immediate medical services or first aid;
(4) Emergency legal counseling and referral;
(5) Crisis counseling to provide support and assurance of safety;
(6) Emergency financial aid; and
(7) Safe living environments that will provide a supportive, nonthreatening shelter to victims, their families, and household members.
Source: Laws 1978, LB 623, § 7.
The department shall, as soon as possible after initial contact with the victim, determine through diagnostic assessment which programs are needed and desired by the victim and family members. The department shall make appropriate referral and conduct appropriate followup. The department shall, to the extent possible, use private sources to provide the support services.
Source: Laws 1978, LB 623, § 8.
The department shall, in addition to the emergency services, provide support services as needed to a victim of domestic abuse for up to thirty days. The support services shall be problem oriented and formulate a plan of action for the victim. Such services may include relocation, financial security, employment, advocacy, assertiveness training, substance abuse counseling, and alternatives to returning to the abuser. Also, the department shall provide services for children including day care, education, and counseling.
Source: Laws 1978, LB 623, § 9.
The department shall provide services for children which may include:
(1) Emergency services which provide housing, food, clothing, and transportation to school;
(2) Counseling for trauma which occurs when children witness or experience family violence;
(3) Programs which provide for the appropriate educational needs of the individual child; and
(4) Services for child care in the necessary absence of the victim parent.
Source: Laws 1978, LB 623, § 10.
The department shall provide complete resource information for victims and their families on legal, medical, financial, vocational, welfare, child care, housing, and other support services.
Source: Laws 1978, LB 623, § 11.
The department shall develop a means of client feedback and collect statistical data to assist it in evaluating program effectiveness.
Source: Laws 1978, LB 623, § 12.
The department shall provide such programs and services as it deems appropriate for the person who commits domestic abuse.
Source: Laws 1978, LB 623, § 13.
The department shall develop, in cooperation with the State Department of Education, a kindergarten through postsecondary educational curriculum relating to domestic violence.
Source: Laws 1978, LB 623, § 14.
The department shall assist in developing community support systems for families to aid in the deterrence of all family crisis situations.
Source: Laws 1978, LB 623, § 15.
The department shall provide a family program, especially for children, to prevent the generational continuation of abuse within the family.
Source: Laws 1978, LB 623, § 16.
The delivery of all services provided for under the Protection from Domestic Abuse Act shall be done in cooperation with existing public, private, state, and local programs whenever possible to avoid duplication of services. Special effort shall be taken to coordinate programs with the Department of Labor, the State Department of Education, the Department of Health and Human Services, and other appropriate agencies, community service agencies, and private sources.
Source: Laws 1978, LB 623, § 17; Laws 1980, LB 684, § 17; Laws 1995, LB 275, § 2; Laws 1996, LB 1044, § 104; Laws 2004, LB 1083, § 90; Laws 2007, LB296, § 61; Laws 2009, LB154, § 8.
Under the Protection from Domestic Abuse Act, strict confidence shall be observed in all contact with victims of spouse abuse and their families. Any record, report, or files maintained by the department pursuant to the act shall be confidential, except that the department may release statistical information, while not revealing names. Violation of this section shall be a Class V misdemeanor.
Source: Laws 1978, LB 623, § 18; Laws 1997, LB 829, § 3.
All programs under the Protection from Domestic Abuse Act shall be separate and administered independent of any welfare assistance program.
Source: Laws 1978, LB 623, § 19; Laws 1997, LB 829, § 4.
The department may construct, lease, purchase, purchase on contract, utilize vendor payment, and contract for services connected with the operation of the Protection from Domestic Abuse Act as needs and interest demand.
Source: Laws 1978, LB 623, § 20; Laws 1997, LB 829, § 5.
The department may accept gifts, grants, devises, and bequests of real and personal property from public or private sources to carry out the purposes of the Protection from Domestic Abuse Act. The department may sell, lease, exchange, invest, or expend such gifts, grants, devises, and bequests or the proceeds, rents, profits, and income therefrom according to the terms and conditions thereof.
Source: Laws 1978, LB 623, § 21; Laws 1997, LB 829, § 6.
The department shall adopt and promulgate such rules and regulations and perform all other acts as may be necessary or appropriate to carry out the Protection from Domestic Abuse Act. Such rules and regulations shall include, but not be limited to, rules and regulations relating to fees charged, training of personnel, and administration of the program.
Source: Laws 1978, LB 623, § 22; Laws 1997, LB 829, § 7.
The department shall determine the ability of the spouses or individuals to pay for services but shall not charge more than the actual cost. The department shall prepare and adopt a uniform fee schedule to be used. The scheduled fees may be reduced or waived by authorization of the department according to the rules of the department and as may be considered necessary to further the objective of the Protection from Domestic Abuse Act. The use of facilities and services established by the act shall not be denied residents of Nebraska because of inability to pay scheduled fees. Any fees received under this section shall be deposited in the General Fund.
Source: Laws 1978, LB 623, § 23; Laws 1997, LB 829, § 8.
Transferred to section 26-103.
Transferred to section 26-116.
Transferred to section 26-121.
Transferred to section 26-117.
Transferred to section 26-109.
Transferred to section 26-114.
All law enforcement agencies in the state shall provide officers employed by them with an education and training program designed to inform the officers of the problems of domestic abuse, procedures to deal with such problems, no-contact periods under sections 26-201 to 26-207, the Protection from Domestic Abuse Act, the Protection Orders Act, and the services and facilities available to abused family and household members.
Source: Laws 1978, LB 623, § 27; Laws 1997, LB 829, § 9; Laws 2025, LB80, § 42; Laws 2026, LB935, § 39.
Operative date: 2027-01-01.
Cross References
Transferred to section 26-119.
Transferred to section 26-120.
(1) By January 1, 1998, each law enforcement agency shall develop a system for recording incidents of domestic abuse within its jurisdiction. All incidents of domestic abuse, whether or not an arrest was made, shall be documented with a written incident report form that includes a domestic abuse identifier.
(2) By January 1, 1998, the Nebraska Commission on Law Enforcement and Criminal Justice shall develop or shall approve a monthly reporting process. Each law enforcement agency shall compile and submit a monthly report to the commission on the number of domestic abuse incidents recorded within its jurisdiction.
(3) The commission shall submit a report annually to the Governor, the Legislature, and the public indicating the total number of incidents of domestic abuse reported by each reporting agency. The report submitted to the Legislature shall be submitted electronically.
Source: Laws 1997, LB 829, § 10; Laws 2012, LB782, § 43.
Transferred to section 26-123.
Sections 42-932 to 42-940 shall be known and may be cited as the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
Source: Laws 2003, LB 148, § 90.
For purposes of the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act:
(1) Foreign protection order means a protection order issued by a tribunal of another state;
(2) Issuing state means the state whose tribunal issues a protection order;
(3) Mutual foreign protection order means a foreign protection order that includes provisions in favor of both the protected individual seeking enforcement of the order and the respondent;
(4) Protected individual means an individual protected by a protection order;
(5) Protection order means an injunction or other temporary or final order, issued by a tribunal under the domestic violence, family violence, or antistalking laws, broadly construed, of the issuing state, to prevent an individual from engaging in violent or threatening acts against, harassment of, contact or communication with, or physical proximity to, another individual;
(6) Respondent means the individual against whom enforcement of a protection order is sought;
(7) State means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band that has jurisdiction to issue protection orders; and
(8) Tribunal means a court, agency, or other entity authorized by law to issue or modify a protection order.
Source: Laws 2003, LB 148, § 91.
(a) A person authorized by the law of this state to seek enforcement of a protection order may seek enforcement of a valid foreign protection order in a tribunal of this state. The tribunal shall enforce the terms of the order, including terms that provide relief that a tribunal of this state would lack power to provide but for this section. The tribunal shall enforce the order, whether the order was obtained by independent action or in another proceeding, if it is an order issued in response to a complaint, petition, or motion filed by or on behalf of an individual seeking protection. In a proceeding to enforce a foreign protection order, the tribunal shall follow the procedures of this state for the enforcement of protection orders.
(b) A tribunal of this state may not enforce a foreign protection order issued by a tribunal of a state that does not recognize the standing of a protected individual to seek enforcement of the order.
(c) A tribunal of this state shall enforce the provisions of a valid foreign protection order which govern child custody, parenting time, visitation, or other access, if the order was issued in accordance with the applicable federal and state jurisdictional requirements governing the issuance of orders relating to child custody, parenting time, visitation, or other access in the issuing state.
(d) A foreign protection order is valid if it:
(1) identifies the protected individual and the respondent;
(2) is currently in effect;
(3) was issued by a tribunal that had jurisdiction over the parties and subject matter under the law of the issuing state; and
(4) was issued after the respondent was given reasonable notice and had an opportunity to be heard before the tribunal issued the order or, in the case of an order ex parte, the respondent was given notice and has had or will have an opportunity to be heard within a reasonable time after the order was issued, in a manner consistent with the rights of the respondent to due process.
(e) A foreign protection order valid on its face is prima facie evidence of its validity.
(f) Absence of any of the criteria for validity of a foreign protection order is an affirmative defense in an action seeking enforcement of the order.
(g) A tribunal of this state may enforce provisions of a mutual foreign protection order which favor a respondent only if:
(1) the respondent filed a written pleading seeking a protection order from the tribunal of the issuing state; and
(2) the tribunal of the issuing state made specific findings in favor of the respondent.
Source: Laws 2003, LB 148, § 92; Laws 2007, LB554, § 37.
(a) A law enforcement officer of this state, upon determining that there is probable cause to believe that a valid foreign protection order exists and that the order has been violated, shall enforce the order as if it were the order of a tribunal of this state. Presentation of a protection order that identifies both the protected individual and the respondent and, on its face, is currently in effect constitutes probable cause to believe that a valid foreign protection order exists. For purposes of this section, the protection order may be inscribed on a tangible medium or may have been stored in an electronic or other medium if it is retrievable in perceivable form. Presentation of a certified copy of a protection order is not required for enforcement.
(b) If a foreign protection order is not presented, a law enforcement officer of this state may consider other information in determining whether there is probable cause to believe that a valid foreign protection order exists.
(c) If a law enforcement officer of this state determines that an otherwise valid foreign protection order cannot be enforced because the respondent has not been notified or served with the order, the officer shall inform the respondent of the order, make a reasonable effort to serve the order upon the respondent, and allow the respondent a reasonable opportunity to comply with the order before enforcing the order.
(d) Registration or filing of an order in this state is not required for the enforcement of a valid foreign protection order pursuant to the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
Source: Laws 2003, LB 148, § 93.
(a) Any individual may register a foreign protection order in this state. To register a foreign protection order, an individual shall:
(1) present a certified copy of the order to the Nebraska State Patrol for the registration of such orders; or
(2) present a certified copy of the order to another agency designated by the state and request that the order be registered with the Nebraska State Patrol.
(b) Upon receipt of a foreign protection order, the agency responsible for the registration of such orders shall register the order in accordance with this section. After the order is registered, the responsible agency shall furnish to the individual registering the order a certified copy of the registered order.
(c) The agency responsible for the registration of foreign protection orders shall register an order upon presentation of a copy of a protection order which has been certified by the issuing state. A registered foreign protection order that is inaccurate or is not currently in effect shall be corrected or removed from the registry in accordance with the law of this state.
(d) An individual registering a foreign protection order shall file an affidavit by the protected individual stating that, to the best of the protected individual's knowledge, the order is currently in effect.
(e) A foreign protection order registered under the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act may be entered in any existing state or federal registry of protection orders, in accordance with applicable law.
(f) A fee shall not be charged for the registration of a foreign protection order.
Source: Laws 2003, LB 148, § 94.
This state or a local governmental agency, or a law enforcement officer, prosecuting attorney, clerk of the court, or any state or local governmental official acting in an official capacity, is immune from civil and criminal liability for conduct arising out of the registration or enforcement of a foreign protection order or the detention or arrest of an alleged violator of a foreign protection order if the conduct was done in good faith in an effort to comply with the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
Source: Laws 2003, LB 148, § 95.
A protected individual who pursues remedies under the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act is not precluded from pursuing other legal or equitable remedies against the respondent.
Source: Laws 2003, LB 148, § 96.
In applying and construing the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
Source: Laws 2003, LB 148, § 97.
The Uniform Interstate Enforcement of Domestic Violence Protection Orders Act applies to protection orders issued before January 1, 2004, and to continuing actions for enforcement of foreign protection orders commenced before January 1, 2004. A request for enforcement of a foreign protection order made on or after January 1, 2004, for violations of a foreign protection order occurring before January 1, 2004, is governed by the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
Source: Laws 2003, LB 148, § 98.
Sections 42-1001 to 42-1011 shall be known and may be cited as the Uniform Premarital Agreement Act.
Source: Laws 1994, LB 202, § 1.
As used in the Uniform Premarital Agreement Act:
(1) Premarital agreement means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.
(2) Property means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.
Source: Laws 1994, LB 202, § 2.
Annotations
The parties' premarital agreement providing that each party would retain "full and complete ownership of all real and personal property that they now own" and "full and complete ownership of all property which shall come into their possession as the result of each party's work and labor, investments, inheritance or otherwise" was enforceable. Cook v. Cook, 26 Neb. App. 137, 918 N.W.2d 1 (2018).
A premarital agreement must be in writing and signed by both parties.
Source: Laws 1994, LB 202, § 3.
(1) Parties to a premarital agreement may contract with respect to:
(a) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
(b) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
(c) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
(d) The modification or elimination of spousal support;
(e) The making of a will, trust, or other arrangement, to carry out the provisions of the agreement;
(f) The ownership rights in and disposition of the death benefit from a life insurance policy;
(g) The choice of law governing the construction of the agreement; and
(h) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
(2) The right of a child to support may not be adversely affected by a premarital agreement.
Source: Laws 1994, LB 202, § 4.
Annotations
The proceeds from a wrongful death action are not the property of a decedent's estate and are therefore not contemplated as a property right waived in a premarital agreement unless the language of the premarital agreement specifically waives such a right. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020).
The parties' premarital agreement providing that each party would retain "full and complete ownership of all real and personal property that they now own" and "full and complete ownership of all property which shall come into their possession as the result of each party's work and labor, investments, inheritance or otherwise" was enforceable. Cook v. Cook, 26 Neb. App. 137, 918 N.W.2d 1 (2018).
Subsection (1)(d) of this section applies to both permanent and temporary spousal support. Edwards v. Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008).
Subsection (1)(d) of this section is more specific than section 42-357 on the issue of modification or elimination of temporary spousal support. Edwards v. Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008).
A premarital agreement becomes effective upon marriage.
Source: Laws 1994, LB 202, § 5.
(1) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
(a) That party did not execute the agreement voluntarily; or
(b) The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(i) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(ii) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(iii) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
(2) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.
(3) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
Source: Laws 1994, LB 202, § 6.
Annotations
The following factors may be used to determine whether a premarital agreement was entered into voluntarily: (1) coercion that may arise from the proximity of execution of the agreement to the wedding, or from surprise in the presentation of the agreement; (2) the presence or absence of independent counsel or of an opportunity to consult independent counsel; (3) inequality of bargaining power—in some cases indicated by the relative age and sophistication of the parties; (4) whether there was full disclosure of assets; and (5) the parties' understanding of the rights being waived under the agreement or at least their awareness of the intent of the agreement. Mamot v. Mamot, 283 Neb. 659, 813 N.W.2d 440 (2012).
The party opposing enforcement of a premarital agreement has the burden to prove that the agreement is not enforceable. Mamot v. Mamot, 283 Neb. 659, 813 N.W.2d 440 (2012).
The proceeds from a wrongful death action are not the property of a decedent's estate and are therefore not contemplated as a property right waived in a premarital agreement unless the language of the premarital agreement specifically waives such a right. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020).
Evidence of lack of capacity, duress, fraud, and undue influence, as demonstrated by a number of factors uniquely probative of coercion in the premarital context, would be relevant in establishing the involuntariness of a premarital agreement. Edwards v. Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008).
That a party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party is not alone sufficient to make the agreement unenforceable. Edwards v. Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008).
The party opposing enforcement of a premarital agreement has the burden of proving that the agreement is not enforceable. Edwards v. Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008).
The provisions of this section do not in any way suggest that if any part of a premarital agreement is unconscionable, the entire agreement is unenforceable. Edwards v. Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008).
When considering whether a party executed a premarital agreement voluntarily, courts should consider whether the evidence demonstrates coercion or lack of knowledge, the presence or absence of independent counsel, inequality of bargaining power, disclosure of assets, and the parties' understanding of the rights being waived or the intent of the agreement. Edwards v. Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008).
If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.
Source: Laws 1994, LB 202, § 7.
Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.
Source: Laws 1994, LB 202, § 8.
The Uniform Premarital Agreement Act shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of the act among states enacting it.
Source: Laws 1994, LB 202, § 9.
If any provision of the Uniform Premarital Agreement Act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of the act are severable.
Source: Laws 1994, LB 202, § 10.
The Uniform Premarital Agreement Act takes effect on July 16, 1994, and applies to any premarital agreement executed on or after that date.
Source: Laws 1994, LB 202, § 11.
Sections 42-1101 to 42-1113 shall be known and may be cited as the Spousal Pension Rights Act.
Source: Laws 1996, LB 1273, § 1.
For purposes of the Spousal Pension Rights Act:
(1) Alternate payee means a spouse, former spouse, child, or other dependent of a member who is recognized by a domestic relations order as having a right to receive all or a portion of the benefits payable by a statewide public retirement system with respect to such member;
(2) Benefit means an annuity, a pension, a retirement allowance, a withdrawal of accumulated contributions, or an optional benefit accrued or accruing to a member under a statewide public retirement system;
(3) Domestic relations order means a judgment, decree, or order, including approval of a property settlement agreement, which relates to the provision of child support, alimony payments, maintenance support, or marital property rights to a spouse, former spouse, child, or other dependent of a member and is made pursuant to a state domestic relations law of this state or another state;
(4) Earliest retirement date means the earlier of (a) the date on which the member is entitled to a distribution under the system or (b) the later of (i) the date that the member attains fifty years of age or (ii) the earliest date that the member could receive benefits under the system if the member separated from service;
(5) Qualified domestic relations order means a domestic relations order which creates or recognizes the existence of an alternate payee's right, or assigns to an alternate payee the right, to receive all or a portion of the benefits payable with respect to a member under a statewide public retirement system, which directs the system to disburse benefits to the alternate payee, and which meets the requirements of section 42-1103;
(6) Segregated amounts means the amounts which would have been payable to the alternative payee during the period of time that the qualified status of an order is being determined. Such amounts shall equal the amounts payable for such period if the order had been determined to be a qualified domestic relations order; and
(7) Statewide public retirement system means the Retirement System for Nebraska Counties, the Nebraska Judges Retirement System as provided in the Judges Retirement Act, the School Employees Retirement System of the State of Nebraska, any Class V school employees retirement system, the Nebraska State Patrol Retirement System, and the State Employees Retirement System of the State of Nebraska.
Source: Laws 1996, LB 1273, § 2; Laws 2004, LB 1097, § 21; Laws 2011, LB509, § 12; Laws 2025, LB295, § 8.
Cross References
A domestic relations order is a qualified domestic relations order only if such order or accompanying document:
(1) Clearly specifies the following:
(a) The name, social security number, and last-known mailing address, if any, of the member;
(b) The name, social security number, and last-known mailing address, if any, of the alternate payee covered by the order;
(c) The statewide public retirement system or systems to which the order applies;
(d) The number of payments or period to which such order applies; and
(e) The amount or percentage of the member's benefits to be paid by each statewide public retirement system to each alternate payee or the manner in which such amount or percentage is determined;
(2) Does not require a statewide public retirement system to provide any type or form of benefit, or any option, not otherwise provided under the plan;
(3) Does not require a statewide public retirement system to provide increased benefits determined on the basis of actuarial value;
(4) Does not require a statewide public retirement system to pay to an alternate payee benefits which are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order; and
(5) Does not require the payment of benefits to an alternate payee before the earliest retirement date of a member.
Source: Laws 1996, LB 1273, § 3; Laws 2006, LB 1113, § 37.
(1) A qualified domestic relations order may provide for the payment of benefits to an alternate payee beginning on or after the member's earliest retirement date but before the member terminates employment. Payment of the benefit to the alternate payee pursuant to a qualified domestic relations order shall commence either on the member's retirement date or on the first day of the month immediately following the month in which the alternate payee notifies the statewide public retirement system of the election to begin payment, but not prior to the member's earliest retirement date.
(2) If payment begins after the member's earliest retirement date but prior to the member's retirement date, the alternate payee is only entitled to the actuarial equivalent of the alternate payee's share of the member's benefit payable on the member's earliest retirement date or the alternate payee's election date, whichever is later.
Source: Laws 1996, LB 1273, § 4.
An alternate payee under a qualified domestic relations order shall receive the form of benefit payment specified in the order or, if not specified, selected by the alternate payee, if such form is a form available to the member and is not a joint and survivor annuity with the alternate payee's subsequent spouse.
Source: Laws 1996, LB 1273, § 5.
If the alternate payee dies prior to receiving any payment of his or her interest in the member's benefit under a qualified domestic relations order, such interest reverts to the member. If the alternate payee dies after commencement of payments of his or her interest, then the alternate payee's beneficiary is entitled to the balance of the payee's interest under the payment option provided by the order or selected by the payee, except a joint and survivor annuity option with the alternate payee and alternate payee's spouse.
Source: Laws 1996, LB 1273, § 6.
A qualified domestic relations order may provide that a spouse under a judgment for separate maintenance or a former spouse is considered the surviving spouse under the plan. If the order requires the member to select a payment option with survivorship rights, the Public Employees Retirement Board shall require consent by such spouse for the selection of the annuity option by the member or for any change in the selection of the annuity option by the member. The order may specifically require that the annuity option be a joint and survivor annuity.
Source: Laws 1996, LB 1273, § 7.
The alternate payee shall file a copy of the domestic relations order involving benefits under a statewide public retirement system with the Public Employees Retirement Board within ninety days after the date that the order was entered. Upon good cause shown, the board may accept an order after ninety days following its entry. Within ten days, the board shall notify in writing the member and alternate payee that the board has received the domestic relations order. Such notice shall include a description of the procedure to determine if the domestic relations order is a qualified domestic relations order under the Spousal Pension Rights Act. The Public Employees Retirement Board shall be held harmless by the alternate payee and the member for any amounts paid in violation of an order prior to the date on which the order is filed with the board.
Source: Laws 1996, LB 1273, § 8; Laws 1998, LB 1191, § 41.
The Public Employees Retirement Board shall adopt and promulgate rules and regulations to establish reasonable procedures to determine the qualified status of domestic relations orders and to administer distributions under such orders. Such procedures shall allow an alternate payee to designate a representative for receipt of copies of notices.
Source: Laws 1996, LB 1273, § 9.
(1) The Public Employees Retirement Board, or the board's designee, shall determine, within a reasonable period of time after receiving a domestic relations order, if the order is a qualified domestic relations order under the Spousal Pension Rights Act. The board may determine that an order is not qualified for the following reasons:
(a) The order fails to fulfill all the requirements under section 42-1103;
(b) The order requires the board to act contrary to the statutory provisions of the statewide public retirement system; or
(c) The order requires payment to the alternate payee in the form of a joint and survivor annuity with respect to the alternate payee and his or her subsequent spouse.
(2) Failure to file an order within ninety days after its entry shall not be the basis for determining that an order is not a qualified domestic relations order.
(3) Within seven days after making the determination, the board or its designee shall notify the alternate payee and the member whether the domestic relations order is a qualified domestic relation order under the act. If the order is not a qualified domestic relations order, the notice shall specify the basis for such determination.
(4) A determination by the board or its designee that a domestic relations order is not a qualified domestic relations order does not prohibit a member or an alternate payee from filing an amended order with the board.
Source: Laws 1996, LB 1273, § 10.
(1) During the period of time that a determination, by the board, its designee, or a court of competent jurisdiction, is being made as to whether a domestic relations order is a qualified domestic relations order, the executive director of the Nebraska Public Employees Retirement Systems shall separately account for the segregated amounts.
(2) If a member of the statewide public retirement systems participates in a defined contribution account, the member shall maintain investment authority over the entire account until the order is determined to be a qualified domestic relations order, but upon such determination, the alternate payee shall receive investment authority over the alternate payee's share of the account.
(3) If within the eighteen-month period the order is determined to be a qualified domestic relations order, the executive director of the Nebraska Public Employees Retirement Systems shall pay the segregated amounts plus interest to the alternate payee or payees entitled thereto.
(4) If within the eighteen-month period the order is determined not to be a qualified domestic relations order or the qualified status of the order is not resolved, the executive director of the Nebraska Public Employees Retirement Systems shall pay the segregated amounts plus interest to the member or other beneficiaries entitled thereto.
(5) If the determination that the order is a qualified domestic relations order is made after the eighteen-month period, the order will be applied prospectively only.
(6) For purposes of this section, the eighteen-month period begins on the date that the first payment would be required under the domestic relations order.
Source: Laws 1996, LB 1273, § 11; Laws 2003, LB 451, § 17; Laws 2026, LB820, § 11.
Operative date: 2026-07-18.
A domestic relations order filed with the Public Employees Retirement Board prior to July 19, 1996, shall be deemed a qualified domestic relations order under the Spousal Pension Rights Act if the statewide public retirement system is making payments under the order on July 19, 1996, and such order conforms to section 414(p)(11) of the Internal Revenue Code.
Source: Laws 1996, LB 1273, § 12.
The member and alternate payee shall hold the statewide public retirement system and its fiduciaries harmless from any liabilities which arise from (1) treating a domestic relations order as being, or not being, a qualified domestic relations order, or (2) taking action pursuant to section 42-1111. The system's obligation to the member and each alternate payee shall be discharged to the extent of any payment made pursuant to the Spousal Pension Rights Act.
Source: Laws 1996, LB 1273, § 13.
Sections 42-1201 to 42-1210 shall be known and may be cited as the Address Confidentiality Act.
Source: Laws 2003, LB 228, § 1.
The Legislature finds that persons attempting to escape from actual or threatened abuse, sexual assault, kidnapping, or stalking frequently establish new addresses in order to prevent their assailants or probable assailants from finding them. The purposes of the Address Confidentiality Act are to enable state and local agencies to respond to requests for public records without disclosing the location of a victim of abuse, sexual assault, kidnapping, or stalking, to enable interagency cooperation with the office of the Secretary of State in providing address confidentiality for victims of abuse, sexual assault, kidnapping, or stalking, and to enable state and local agencies to accept a program participant's use of an address designated by the Secretary of State as a substitute mailing address.
Source: Laws 2003, LB 228, § 2; Laws 2022, LB691, § 1.
For purposes of the Address Confidentiality Act:
(1) Abuse means causing or attempting to cause physical harm, placing another person in fear of physical harm, or causing another person to engage involuntarily in sexual activity by force, threat of force, or duress, when committed by (a) a person against his or her spouse, (b) a person against his or her former spouse, (c) a person residing with the victim if such person and the victim are or were in a dating relationship, (d) a person who formerly resided with the victim if such person and the victim are or were in a dating relationship, (e) a person against a parent of his or her children, whether or not such person and the victim have been married or resided together at any time, (f) a person against a person with whom he or she is in a dating relationship, (g) a person against a person with whom he or she formerly was in a dating relationship, or (h) a person related to the victim by consanguinity or affinity;
(2) Address means a residential street address, school address, or work address of an individual as specified on the individual's application to be a program participant;
(3) Dating relationship means an intimate or sexual relationship;
(4) Kidnapping has the same meaning as in section 28-313;
(5) Program participant means a person certified as a program participant under section 42-1204;
(6) Sexual assault has the same meaning as in section 28-319, 28-319.01, 28-320, 28-320.01, or 28-386;
(7) Stalking has the same meaning as in sections 28-311.02 to 28-311.05; and
(8) Trafficking victim has the same meaning as in section 28-830.
Source: Laws 2003, LB 228, § 3; Laws 2006, LB 1199, § 31; Laws 2017, LB280, § 1; Laws 2022, LB691, § 2.
(1) An adult, a parent or guardian acting on behalf of a minor, or a guardian acting on behalf of an incapacitated person as defined in section 30-2601 may apply to the Secretary of State to have an address designated by the Secretary of State serve as the substitute address of such adult, minor, or incapacitated person. The Secretary of State shall approve an application if it is filed in the manner and on the form prescribed by the Secretary of State and if it contains:
(a) A sworn statement by the applicant that the applicant has good reason to believe (i) that the applicant, or the minor or incapacitated person on whose behalf the application is made, is a victim of abuse, sexual assault, kidnapping, stalking, or trafficking and (ii) that the applicant fears for his or her safety, his or her children's safety, or the safety of the minor or incapacitated person on whose behalf the application is made;
(b) A designation of the Secretary of State as agent for purposes of service of process and receipt of mail;
(c) The mailing address and the telephone number or numbers where the applicant can be contacted by the Secretary of State;
(d) The new address or addresses that the applicant requests not be disclosed for the reason that disclosure will increase the risk of abuse, sexual assault, kidnapping, stalking, or trafficking; and
(e) The signature of the applicant and of any individual or representative of any office designated in writing under section 42-1209 who assisted in the preparation of the application and the date on which the applicant signed the application.
(2) Applications shall be filed in the office of the Secretary of State.
(3) Upon filing a properly completed application, the Secretary of State shall certify the applicant as a program participant. Such certification shall be valid for four years following the date of filing unless the certification is withdrawn or invalidated before that date. The Secretary of State may by rule and regulation establish a renewal procedure.
(4) A person who falsely attests in an application that disclosure of the applicant's address would endanger the applicant, the applicant's children, or the minor or incapacitated person on whose behalf the application is made, or who knowingly provides false or incorrect information upon making an application, is guilty of a Class II misdemeanor.
Source: Laws 2003, LB 228, § 4; Laws 2017, LB280, § 2; Laws 2022, LB691, § 3.
(1) If a program participant obtains a name change, he or she shall forfeit his or her certification as a program participant unless the program participant applies to the Secretary of State for recertification and provides documentation of the legal name change.
(2) The Secretary of State may cancel a program participant's certification if there is a change in the mailing address from the one listed on the application under section 42-1204, unless the program participant provides the Secretary of State with notice of the change of address in such manner as is provided by rules and regulations adopted and promulgated by the Secretary of State.
(3) The Secretary of State may cancel certification of a program participant if mail forwarded to the program participant's address is returned as undeliverable.
(4) The Secretary of State shall cancel certification of a program participant who applies using false information.
Source: Laws 2003, LB 228, § 5.
(1) A program participant may request that state and local agencies use the address designated by the Secretary of State as the program participant's substitute address. When creating a new public record, a state or local agency which has a bona fide statutory, tax situs, or administrative requirement for the participant's residence address may request that the participant verbally provide the agency with such residence address if the agency has the capability to use such address for such bona fide purpose without permanently entering it into the agency's records. If the agency does not have such capability, it shall accept the address designated by the Secretary of State as a program participant's substitute address, unless the Secretary of State determines that:
(a) The state or local agency has a bona fide statutory, tax situs, or administrative requirement for the use of the address which would otherwise be confidential under the Address Confidentiality Act; and
(b) The address will be used only for such bona fide statutory, tax situs, or administrative requirement.
(2) The Secretary of State shall forward all first-class mail to each program participant's substitute address.
Source: Laws 2003, LB 228, § 6.
(1) A program participant who is otherwise qualified to vote may apply to vote early under sections 32-938 to 32-951. The county clerk or election commissioner shall transmit the ballot for early voting to the program participant at the address designated by the program participant in his or her application as an early voter. Neither the name nor the address of a program participant or a registered voter with a court order issued as described under section 32-331 shall be included in any list of registered voters available to the public.
(2) The county clerk or election commissioner shall not make a program participant's address contained in voter registration records available for public inspection or copying except under the following circumstances:
(a) If requested by a law enforcement agency, to the law enforcement agency; or
(b) If directed by a court order, to a person identified in the order.
Source: Laws 2003, LB 228, § 7; Laws 2005, LB 98, § 33; Laws 2022, LB843, § 50.
The Secretary of State shall not make any records in a program participant's file available for inspection or copying, other than the substitute address designated by the Secretary of State, except under the following circumstances:
(1) If requested of the Secretary of State by the chief commanding officer of a law enforcement agency or the officer's designee in the manner provided for by rules and regulations adopted and promulgated by the Secretary of State;
(2) To a person identified in a court order upon the receipt by the Secretary of State of that court order which specifically orders the disclosure of a particular program participant's address and the reasons stated therefor; or
(3) To verify the participation of a specific program participant, in which case the Secretary of State may only confirm or deny information supplied by the requester.
Source: Laws 2003, LB 228, § 8.
The Secretary of State shall designate state and local agencies and nonprofit entities that provide counseling and shelter services to victims of abuse, sexual assault, kidnapping, stalking, or trafficking to assist persons applying to be program participants. Any assistance or counseling rendered by the office of the Secretary of State or its designees to such applicants shall not be deemed legal advice or the practice of law.
Source: Laws 2003, LB 228, § 9; Laws 2017, LB280, § 3; Laws 2022, LB691, § 4.
The Secretary of State may adopt and promulgate rules and regulations to carry out the Address Confidentiality Act.
Source: Laws 2003, LB 228, § 10.
Transferred to section 30-701.
Transferred to section 30-702.
Transferred to section 30-704.
Transferred to section 30-705.
(1)(a) The Department of Health and Human Services shall designate a Family Resource and Juvenile Assessment Center Pilot Program in cities of the metropolitan class areas.
(b) The pilot program shall: (i) Operate twenty-four hours a day, seven days a week, (ii) be developed in partnership with local grassroots organizations, community stakeholders, and advisors representing youth and families impacted by the juvenile justice system, and (iii) terminate five years after September 1, 2025.
(2) A Family Resource and Juvenile Assessment Center means a facility designed to provide support, assessment, and intervention services for youth and families involved in, or at risk of, entering the juvenile justice system. The goal of the centers is to offer comprehensive, community-based solutions that address underlying issues contributing to juvenile delinquency, including family dynamics, mental health, substance abuse, and educational challenges.
Source: Laws 2025, LB48, § 1.
The Revisor of Statutes, as authorized by section 49-705(1)(g), has corrected a manifest clerical error in Laws 2025, LB48, section 1, by changing the word "establish" to the word "designate" in subdivision (1)(a) of section 42-1401.
The pilot program established pursuant to section 42-1401 shall:
(1) Provide comprehensive support resources to prevent youth from entering or escalating within the juvenile justice system;
(2) Minimize individual and community harm by addressing issues before they lead to greater involvement with social services, family services, and adult criminal justice systems; and
(3) Foster community trust and engagement by integrating culturally relevant services delivered by, and for, the communities served.
Source: Laws 2025, LB48, § 2.
(1) The Department of Health and Human Services shall establish a designation process for family resource and juvenile assessment centers to ensure adherence to high-quality standards in service delivery, staff qualifications, and organizational effectiveness.
(2) A center seeking designation shall complete a comprehensive self-assessment based on the national Standards of Quality for Family Strengthening and Support or a similar benchmark framework and shall submit an application and the self-assessment to the department for review.
(3) The department shall conduct site visits and staff interviews as part of the review process to verify self-assessment findings and confirm compliance with designation standards.
(4) A center that meets the designation criteria will receive official designation. A center that does not meet the designation criteria shall receive feedback and technical assistance so that such center may improve and reapply for designation.
(5) Two centers shall be selected for the pilot program established pursuant to section 42-1401.
Source: Laws 2025, LB48, § 3.
The Revisor of Statutes, as authorized by section 49-705(1)(g), has corrected a manifest clerical error in Laws 2025, LB48, section 3, by changing the word "designate" to the word "establish" in subsection (1) of section 42-1403.
To receive designation as a family resource and juvenile assessment center under section 42-1403, an applicant shall meet the following criteria: (1) Offer a range of core services, including parenting support, youth counseling, economic success initiatives, early childhood programs, conflict resolution, mental health services, and substance abuse prevention; (2) employ professionals trained in family support principles, cultural competency, trauma-informed care, and the strengthening families framework; (3) develop partnerships with local grassroots organizations to provide culturally relevant services, outreach, and trust-building within the community; (4) demonstrate a clear, effective organizational framework that supports service delivery, continuous quality improvement, and sustainable operations; and (5) implement data collection processes to assess service impact and outcomes for youth and families, ensuring program adjustments based on feedback.
Source: Laws 2025, LB48, § 4.
(1) Each family resource and juvenile assessment center shall host multiple community providers, grassroots organizations, and embedded community navigators to assess and serve the immediate and ongoing needs of youth and families.
(2) Each center shall provide assessments and services free of charge to families and maintain active membership in the National Assessment Center Association.
(3) The purpose of the assessment shall be to (a) enable youth and families to discuss a family's unique dynamic, challenges, and goals in a safe, culturally respectful environment, (b) identify the origin of presenting issues and provide comprehensive service referrals in partnership with local organizations and businesses, and (c) engage youth and families in creating tailored action plans for long-term success.
Source: Laws 2025, LB48, § 5.
(1) Each family resource and juvenile assessment center shall integrate culturally relevant and trauma-informed services, including (a) tutoring, (b) mentoring from community leaders, including those with lived experience in the justice system, (c) conflict resolution and anger management training, (d) mental health and wellness services provided by culturally sensitive professionals, (e) social skills and job-readiness training, (f) financial literacy programs, (g) youth and family counseling, (h) cognitive behavioral therapy, (i) drug and substance abuse prevention and intervention, and (j) food and clothing assistance and resource navigation.
(2) Each center shall establish community partnerships to provide apprenticeships, vocational training, and mentorship opportunities with local businesses, trades, and community organizations.
Source: Laws 2025, LB48, § 6.
Each family resource and juvenile assessment center shall (1) have a youth advisory council and parent advisory board composed of community members to provide ongoing feedback to ensure services remain relevant, effective, and responsive, (2) host regular outreach events, workshops, and open houses in partnership with schools, faith-based groups, and community organizations, to create a bridge for preventive engagement with at-risk youth and their families, and (3) employ individuals with established community ties and lived experience to guide youth and families through available services, act as mentors, and assist with follow-up to ensure sustained engagement.
Source: Laws 2025, LB48, § 7.
Each family resource and juvenile assessment center shall implement a data collection system to assess program effectiveness, track youth and family outcomes, and incorporate feedback directly from those served. The data collected shall be used to adjust and refine services, with a focus on measuring progress toward keeping youth out of the juvenile justice system and achieving positive life outcomes.
Source: Laws 2025, LB48, § 8.
Each family resource and juvenile assessment center shall offer ongoing support to youth after they complete the initial service period. This support may include alumni mentoring programs, periodic check-ins, or additional family resources as youth transition into adulthood or exit from other systems of care.
Source: Laws 2025, LB48, § 9.
Funding for family resource and juvenile assessment centers shall be allocated to prioritize partnerships with local grassroots organizations and businesses to sustain services and provide direct community investment. Subject to available funds, each designated center shall receive up to five hundred thousand dollars per center annually from the Medicaid Managed Care Excess Profit Fund. If such funds are not available from the Medicaid Managed Care Excess Profit Fund, no General Funds may be used. No more than ten percent of funds appropriated for the Family Resource and Juvenile Assessment Center Pilot Program, up to fifty thousand dollars per year, shall be used to administer the pilot program.
Source: Laws 2025, LB48, § 10.
The Department of Health and Human Services shall conduct an annual evaluation of the Family Resource and Juvenile Assessment Center Pilot Program's impact on youth and family well-being, community trust, and reduction in juvenile justice system involvement to inform future program developments under sections 42-1401 to 42-1411.
Source: Laws 2025, LB48, § 11.
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