Divorce has become a common experience. For many people, it’s one of their first real experiences with the courts, lawyers, and the legal system. Many people who are divorcing don’t want to go to trial and would like to keep their experience with the court (and their attorney fees!) to a bare minimum. By settling your divorce case, you can do just that.
A Step-by-Step Guide to Divorce Settlements
What does it mean to settle your divorce?
A divorce that settles is when both spouses agree to all the terms of the divorce. This includes an agreement as to how the property and debts are divided, as well as all issues regarding any children and support.
Even when you settle a divorce case, your divorce case goes through the court system. Your divorce case is finalized when a divorce decree is signed by a judge and entered by the Court. In some cases, you never need to appear in Court but you do need a court order to legally end your marriage, even when you agree on all the terms.
Divorce settlement: What are the General Steps?
Below is a general idea of how to complete the steps for a stipulated divorce decree, by looking specifically at how things are generally handled in Nebraska Courts.
1. File Your Divorce Action – Filing the Complaint
Your divorce case is a process. Generally, the first step is filing your divorce action. The process varies somewhat from state to state but here we will focus on Nebraska. In Nebraska, the first step is to file the Complaint for Dissolution of Marriage. When you file the Complaint, you will also be required to submit information with your statistical information. This stays as a confidential document that is part of your court file but not accessible to the public. This includes things like your birth date and social security number. This helps the County keep track of who is married and divorced. You will also need to pay the Court filing fee. The Court will assign your case a judge and a case number. Your divorce action has officially begun.
2. Serve the Other Party – the Voluntary Appearance
Serving the other party generally means to have the sheriff hand them the Complaint and any related paperwork. This counts as “service” of the divorce action. However, in a case where the spouses are cooperating, you can often waive this step. To waive this step, the spouse who did not file the divorce action files a Voluntary Appearance. This Voluntary Appearance is signed by the spouse who did not file the divorce action and acknowledges that they received a copy of the Complaint. This Voluntary Appearance is filed with the Court and counts as service without getting the sheriff involved.
3. Mandatory Waiting Period – 60 days until Divorced
Some states, like Nebraska, have a mandatory waiting period. Thus, you want to get your divorce action filed and served promptly. Once the other party is served, the mandatory waiting period to finalize your divorce action begins. In Nebraska, the mandatory waiting period is 60 days. Thus, even if you and your spouse agree to all terms at the time the Complaint is filed, you must wait until 60 days after the other party is served before you can finalize your divorce action. The idea of the 60 days is to give spouses a chance to reconcile or change their minds about divorcing. Even if there is no chance of reconciliation, you can’t waive the 60 days in Nebraska, although in some states it is waivable.
4. Gather Your Financials – Determine What You Have
Once you have started the 60 days, it is time to gather up any financials that you have not already reviewed. You will want to make sure you have accounted for all of your debts and all your assets, especially any debts or assets that are jointly titled with your spouse. You determine which part of the assets and debts are martial and which part are pre-marital or non-marital. Generally, only the assets and debts that accrued during the marriage are divided. The other assets and debts are usually considered the separate property of whoever brought them into the marriage. Often this involves creating a balance sheet to make sure all assets and debts are accounted for and to help determine a fair division of the marital estate. In most cases, a goal often includes dividing the property in such a way that there is no longer any jointly titled property or debt. If the asset or debt can’t be transferred to one party’s name at this time, the divorce decree often includes terms as to each party’s responsibility or rights to the property until the asset or debt is either sold, paid off, or transferred to one party’s name.
This step also includes gathering income info to determine if a spouse will pay alimony or child support to the other spouse and what amount is fair.
5. Determine What is Fair – Protecting Your Interests
Now that you know what you have. You want to make sure that you protect your interests and receive your fair share in the divorce action. For a short marriage with no children and not much property, this might be fairly simple. The value brought into the marriage by either party might be relatively low and it may make sense for each party to just keep that which has always been in their own name.
On the other hand, if you have property or debts of value, the process becomes more complicated. There are two ways of determining what is fair. One is what a party sees in their mind as fair. Maybe a party feels that they worked harder than the other party during the marriage and thus they should be entitled to 75% of the assets of the marriage. They see this as “fair.” The second type of fair is what the law and the Courts see as “fair.” In most cases, this often is closer to a 50/50 share of the assets. In order to make an education decision as to what is “fair” in your case, you will want to have an idea of what the Court would likely see as a “fair” division of your marital estate. You can then analyze from there if the agreement you are contemplating is “fair” and protects your interests.
6. Create the Parenting Plan – Protect your Children
If there are children involved, you will need to create a parenting plan that addresses the specifics of your parenting. This includes not only the normal weekly parenting time schedule but also how to handle things like holidays and summer vacation. If you are in agreement on all terms, you can draft the parenting plan and have both parents sign off on it. Often either an attorney or mediator will assist the parents in creating the plan so that terms are ones that the Court can understand and enforce in the future if necessary. In Nebraska, the parents are also required to take a one-time class about co-parenting tips and file their certificate of completion of the class with the Court before finalizing their divorce action. In some cases, the parenting plan also must be reviewed and approved by a separate part of the Court that handles parenting plans before the Judge will accept the parenting plan as part of the divorce decree.
7. Create the Divorce Decree – Putting the Agreement into Writing
Once you’ve decided on all the terms, it is now time to create the divorce decree. For a short divorce with no children and few marital assets to divide, this document may be fairly simple and short without any attachments. On a case with children or a lot of property to divide, this document can be quite lengthy with multiple attachments. If you have children together, your divorce decree likely includes the parenting plan and the child support calculation as attachments. There may be a separate property settlement agreement, a detailed personal property list, a detailed balance sheet, or other attachments depending on the case. Some courts also require specific attachments or document included specific to their courtroom or their county.
8. Time to Sign – Use a Notary
Once the parties have their agreement reduced to writing, it is time to sign. You will likely need to sign your divorce decree in front of a notary, but you may also need to sign other attachments or documents as well.
9. Submit the Divorce Decree – Time for Judge to Review
Once all parties have signed the divorce decree, you need to submit this to the Judge for the Judge’s approval. Sometimes this is done by requesting a hearing and presenting the divorce decree to the Judge at the hearing. Other times, you can sign a waiver of hearing so that the Judge accepts the divorce decree without either spouse ever entering a courtroom.
10. Wrap Up – More Work Post-Decree
Once the divorce decree is entered by the Court, you are divorced. However, it is very common for there to be a number of steps you need to do after the divorce decree is entered. For example, if the Court divided a 401(K) between the parties, it is often necessary to prepare and submit a Qualified Domestic Relations Order to property complete the transfer of a share of the funds from one party to the other. If a party was granted real estate, a quit claim deed needs to be signed and filed with the Register of Deeds. If your maiden name was restored, you have deadlines to meet to submit your documentation to complete your name change on your driver’s license, your social security card, etc. These are just a few of the many additional possible tasks that need to be completed after your divorce decree is entered.
Can Both Parties Agree on a Divorce Settlement?
Yes, when both parties agree on a divorce settlement, it is called an uncontested divorce. An uncontested divorce can often be resolved with little to no time in a courtroom.
Keep in mind that an uncontested divorce means that both parties accept all the terms and conditions of their settlement. There is no counterpoint from either party, and both are happy enough with the conditions as specified in the written divorce decree to settle the case.
Usually, an uncontested divorce is the fastest type of divorce, with less time spent in the legal system to reach an agreement or find a resolution. Most people would prefer to settle their divorce case and reach a fair resolution for both parties. The tricky part is reaching an agreement as what is “fair” and to the specific terms.
What if Both Parties Don’t agree on the Terms of the Divorce Settlement?
If the terms of the divorce can’t be agreed upon, it becomes a contested divorce. Often both spouses want the process to be quick and easy, but they also won’t agree to less than what they see as their fair share.
However, even with contested divorces, most divorce cases settle without a trial. It is standard practice for settlement offers to be sent back and forth between attorneys until the parties reach an agreement. In a contested case, you are at a greater disadvantage if you don’t have your own attorney. You might have several court appearances to prepare for and attend prior to the trial date. At each hearing, you might have more and more information as to what the Court sees as “fair” to make it easier to reach a divorce settlement that is “fair.” Thus, a contested divorce still often leads to a divorce settlement agreement being reached by both parties, although is often a more expensive and time-consuming legal process.
Do You Really Need an Attorney for a Divorce Settlement?
You aren’t required, but you may really need an attorney for your divorce settlement. There is no legal requirement that an attorney assists in your divorce action. On the other hand, you are also not entitled to court-appointed counsel to assist, even if you are low-income and can’t afford an attorney. Trying to draw up a divorce settlement without the experience of a family law attorney often creates legal gaps with provisions missing from the Decree or language that the Court can’t meaningfully interpret if there are issues. Further, it isn’t uncommon for people to agree to an unfair settlement as they didn’t understand what they were entitled to as “fair” under the law. As the property settlement part of a divorce decree is not modifiable, some mistakes can’t be fixed once included as part of the divorce decree.
A divorce attorney is recommended even if you believe you and your spouse can agree on the terms. Even when uncontested and easy, there will likely be language or terms that your attorney will add to make sure that your rights are protected and that what you are receiving is “fair” under the eyes of the law. Further, the attorney can also help make sure that what you agreed to is actually what is legally stated in your divorce decree.
What Happens Before the Divorce Settlement?
Before the divorce settlement, there is usually some want and expression by both spouses that they want their divorce to be peaceable and fair, even though they want to end the marriage. In an ideal situation, both parties will also be forthright with sharing their financial documents and commit to having respectful and business-like conversations to try to reach the terms of their agreement.
What Happens After the Divorce Settlement?
Once the terms of the agreement are reached and the divorce decree is signed by the Judge, you now have a legal document and court order enforceable by Court action. Similar to other legal documents, the terms within the divorce decree are binding like a legal contract. If the terms are not being adhered to by one (or either) party, a party can file an action before the Court for the Court’s assistance in enforcing the terms. Depending on the situation, the sanctions for not following the terms of the Decree can be severe. Especially for the willful and more egregious violations, the Court can even use jail time to sanction a party for violating the terms of the divorce decree.
The property settlement terms are generally not modifiable, but some terms of the divorce decree may continue to be modified. For example, once the final divorce decree is entered, you generally have no right to come back years later and ask for the house that was awarded to the other party to now be awarded to you. On the other hand, child support is often modified years after the divorce decree is entered. As the children grow and the incomes of the parents change, it is common for child support to modified over time.
As you may continue to experience the effects of the terms of your original divorce decree for the rest of your life, it generally makes sense to get an attorney to assist you even in cases where the parties believe they can reach an agreement as to the terms.
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.