Perhaps you and your spouse have decided to live apart from one another but aren’t quite ready to or don’t want to get divorced. Or, maybe you’ve decided that you do want to part ways and get divorced but you want to do a trial separation before proceeding. Whatever your specific situation may entail, if you and your spouse are thinking about separating and you live in the State of Nebraska, it’s important to find out how divorce law – and also legal separation – works in Nebraska.
Understanding How Legal Separation Works in Nebraska
What is a Separation?
Legal separation refers to a couple’s conscious decision to live apart from one another. You are still married but no longer together. According to Nebraska law, and specifically, Nebraska Revised Statute Section 42-361.01, married couples who decide to legally separate are required to live in separate locations and physically apart from one another. If you and your spouse are using different bedrooms in the same house, this type of living arrangement would not generally qualify for legal separation under Nebraska law.
In a legal separation, you are still married and the legal spouse of the other party. However, the Court may order specific provisions regarding your assets, debts, and custody of your children.
A legal separation can help define your rights and duties to your spouse. If you would like to receive the benefits that are associated with a legal separation, you and your spouse will usually need to live in separate households with different addresses.
Is There a Difference Between a Formal and an Informal Separation?
Yes, there is a difference between both types of separation – formal and informal.
An informal separation isn’t a legal separation. You are still just married, even if you are living apart. If you and your spouse decide to live apart from one another, this would be known as an informal separation but it isn’t a “legal” separation. For many couples, an informal separation can be an effective way to test the waters, so to speak, to determine whether or not you would actually like to move forward and pursue a divorce.
The amount of time that an informal separation can last varies, ranging from a few months to several years. However long you and your spouse decide to separate, if it is on an informal basis, your separation is not a legal separation.
Formal Separation – The Legal Separation
If you or your spouse decide that you would like to seek a Legal Separation, you would need to file a Complaint for Legal Separation with the Court. This opens the Legal Separation action. Similar to a divorce, the legal separation action is a legal process, not just one-time paperwork. In Nebraska, a married couple is permitted to obtain a legal separation, even if only one of the spouses wants the legal separation and the other wishes to stay married.
The legal separation action is similar to the divorce action in many ways. Like a divorce action, the Complaint for Legal Separation must be served on the other party. Alternatively, the other spouse can sign a document called a Voluntary Appearance to count as service. Either way, once the party is served, the action begins.
If you have children together, the Nebraska Parenting Act requires you to take a class on co-parenting. This is usually a one-time class and can generally be taken online. Unless you and your spouse can agree regarding the support and schedule for the children, the Court will likely order you two to attempt mediation to try to agree to a schedule for the children, called a parenting plan. If either party requests support, the Court may enter a Temporary Order setting forth who has custody of the children, who pays child support, alimony, etc. while the case is pending. If you can reach an agreement on these things, you can prepare the Parenting Plan without the need for mediation or a temporary hearing.
If you two can’t reach an agreement, your case can be set for trial. At trial, the Court will set forth each party’s rights and responsibilities in a Decree of Legal Separation. This document would normally address support concerns, such as alimony and child support, as well as addressing custody and parenting time. There is often some division of assets, even though some accounts may remain joint or continue to be used by both parties since the parties are remaining married.
It is rare for a Legal Separation case to go to trial. This is because either party can ask to change the Legal Separation to a divorce action (technically a Dissolution of Marriage action). If either party wants to divorce instead of just legally separate, the Court will generally grant the request.
In fact, the most common time we see a Legal Separation action filed in Nebraska is when the spouses would prefer to divorce. At least one spouse has to be a resident of Nebraska for at least a year before you can file a divorce action in Nebraska. There isn’t a lengthy residency requirement to file a Legal Separation. What do you do if you’ve moved to Nebraska less than a year ago and the spouses want to divorce? You file a Legal Separation action to at least have the Court enter a temporary order while the case is pending. This way, you have a court order to help define your obligations to each other while you are waiting for the one-year residency. Once the one-year residency mark passes, the legal separation action is converted into a divorce action and finalized as a divorce.
However, some legal separations are filed with truly the intent of wanting to remain married but apart.
This can be on a trial basis reason. For example, if a spouse has alcohol or substance abuse problems, you may need to protect yourself and your children and reside outside the home. You hope to resume the marriage once the spouse successfully completes treatment, but you also need your custody/parenting time and support obligations legally defined in the meantime.
You no longer wish to be together but your religion strongly stigmatizes those who divorce. You may wish to remain “married” but have your duties and obligations to each other as otherwise legally separated as possible.
You no longer wish to be married but only one party has health insurance and the other party has a serious health condition. You may wish to remain married so the party continues to qualify as a “spouse” for health insurance coverage but otherwise generally wish to separate from each other. Especially if the spouses have children together, this may be a good option for a tough situation.
If you remain legally married, you continue to qualify as their “spouse” and enjoy the legal benefits of being married. This includes tax filing benefits, health insurance benefits, and the benefits of being a “spouse” for inheritance purposes.
Legal Separation in Nebraska Without Appearing in Court
In the State of Nebraska, you have to file your legal separation action with the Court for it to be a “legal separation.” However, if you and your spouse are in agreement as to the terms in your Decree for Legal Separation, you may never have to appear in Court. Once 60 days after service have passed, you can submit your Decree of Legal Separation and Hearing Waiver to the Court. If your judge accepts the paperwork, the Court can grant you a legal separation without ever making an in-person court appearance.
Separation vs Divorce: What’s the Difference?
A legal separation order can cover most of the same issues that a judge would decide if you were to proceed with a divorce. Typically, this would include some division of assets and debts as well as orders regarding custody, parenting time, child support, and alimony.
If you are later to file a divorce, the Court would likely consider that the parties have been legally separated. If one party’s net worth increases significantly since the legal separation, this can make a big difference in the overall division of assets and debts in the divorce. The Court may decide to use the time of the legal separation as the time of the division of assets. This would exclude the additional accumulation of assets from the marital division.
With a divorce decree, your marriage will be dissolved. You are no longer married and no longer the other party’s legal spouse. You won’t qualify as their spouse for health insurance purposes, taxes, inheritance, etc. However, you also end your legal duties to the other party as their spouse.
In a legal separation, you are still married and still legally the “spouse” of the other party.
In short, a divorce finalizes the end of a marriage and ends your legal relationship as a “spouse.” In a legal separation, the Court helps define some of your duties and responsibilities to each other but you still continue to qualify as their legal spouse and are still legally married.
What Does a Separation Order Entail?
The legal separation order often looks very similar to a divorce decree. It can address support from your spouse, divide shared property and assets, name who is responsible for debts, and designate who is granted custody and awarded any child support.
While a legal separation order often doesn’t last years, it is final court order like a divorce decree. Thus, it can continue to be enforced legally by the court. In fact, the final legal separation order stays in place permanently unless another court order is entered. The legal separation can be terminated by a subsequent divorce or by the parties’ agreement to terminate (“vacate”) the order due to the spouses’ reconciliation. This termination would be done by a formal order filed with the Court to officially end the legal separation order.
Legal Separation in Nebraska
If you and your spouse have fallen on difficult times and are considering filing for divorce, a legal separation may be another option to consider.
Law Office of Julie Fowler, PC, LLO | Divorce Lawyers Omaha
Child Custody | Child Support | Divorce Lawyers Omaha
If you are looking for an attorney in a child support case or divorce in Omaha, Nebraska, or the surrounding areas (including Papillion, Bellevue, Gretna, Elkhorn, Lincoln, Nebraska City, Sarpy, and Lancaster), contact our office to set up a consultation.