Navigating Legal Separation In Nebraska: What Couples In Douglas County Need To Know
Posted By: Kelly Shattuck
What you will learn in this guide:
- The differences between legal separation and divorce.
- Whether alimony and spousal support can be awarded during legal separation.
- How property is divided during a legal separation.
What Is Legal Separation And How Does It Differ From A Divorce?
Ending a marriage can be a messy affair and one with a lot of mental and emotional strain. Still, you have to make the right decisions not only for yourself but also for the family. Among the choices you have to make is whether you want a legal separation or a divorce.
A legal separation is a decree from our courts, providing that two spouses who are legally married will live separate and apart going forward. It will also provide for issues such as:
- Property division
- Allocation of marital assets and debts
- Address child custody and parenting time
- Child support and spousal support
The key difference between a legal separation and a traditional divorce is that in a legal separation, the parties remain married. In contrast, in a dissolution action, they are formally and legally divorced.
Is Legal Separation Recognized In All States, Or Just In The State Where It Has Been Filed?
When moving forward with a legal separation, you need to understand how it is enforced and what is within your limits, mainly because, from a legal perspective, you are still married.
The state you file in will recognize the legal separation, and there are also means to enforce a legal separation in other states, similar to how a decree of dissolution would be enforced.
Are Alimony Or Spousal Support Awarded During Legal Separation?
Yes, alimony and spousal support can be awarded during a legal separation; however, not all cases are subject to an award. Alimony and spousal support can be awarded during legal separation just as it would be ordered in a traditional divorce.
Our Courts may order payment of alimony by one party to the other 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.
In addition, in considering alimony upon a dissolution of marriage or legal separation, a trial court is to consider the income and earning capacity of each party, as well as the general equities of each situation. In determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criterion is one of reasonableness.
How Is Property Divided In A Legal Separation In Nebraska?
A legal separation allows for an equitable division of marital assets and debts. This happens in the same way as in a divorce proceeding, with a few exceptions. All property accumulated and acquired by either spouse during the marriage will be part of the marital property to be divided, unless it falls within an exception to the general rule (gift, inheritance, or premarital property). Once the marital assets and debts are identified and the corresponding value of each asset and debt is determined, the marital estate will need to be equitably divided between both parties based on what is fair and reasonable in the circumstances of each case.
What Are The Main Benefits Of Legally Separating Instead Of Getting A Divorce?
There are several benefits to legal separations, which include the following:
- No residency requirement necessary:
Divorces are filed in the state where either spouse resides. In Nebraska, in order to file for a divorce, one of the parties must have lived in Nebraska for at least one year immediately prior to filing. If you haven’t met this requirement, you cannot file for divorce in Nebraska, but you can still file for a legal separation. - The court addresses the same issues as in a dissolution:
You have the opportunity to move forward with a legal separation without having to wait for that one-year residency requirement. Additionally, the legal separation will address spousal support and division of marital assets and debts in the same fashion as a dissolution.
Furthermore, if a complaint for legal separation is filed, it can be amended into a Complaint for Dissolution of Marriage once the one-year residency requirement is met. Legal separation is a mechanism for individuals to start the process without necessarily having to wait for the one-year residency requirement to be met, as is required when filing a divorce action. - Medical Benefits:
With a legal separation, you may be able to stay on your spouse’s health insurance plan indefinitely. This is not the case in divorce actions. If there are serious health or medical issues in play, having the ability to remain covered on a spouse’s insurance plan can be a substantial benefit.
What Is The Most Common Misunderstanding Clients Have About The Legal Separation Process?
In my experience, there is much confusion regarding the ability to amend a complaint for legal separation to a divorce action. If a legal separation is filed and the necessary residency requirement is met, either spouse can elect to amend the complaint for legal separation to an action for dissolution of marriage.
The main difference between a legal separation and a divorce is that under a legal separation, you must live separately and apart, but you are still legally married. Under a dissolution action, you are legally divorced. The misunderstanding would be that just because you elect to file a legal separation, it does not keep you from moving forward with a divorce thereafter. Filing legal separation does not prevent filing for divorce later on.
How Do You Reframe These Misconceptions So I Can Better Understand The Process?
It’s important to demystify the different misconceptions about legal separations to ensure you understand the process. One key point is to emphasize that a legal separation may very well be amended to a formal divorce action.
Also, in both situations, the court is going to have the full authority to address factors such as:
- Child custody
- Parenting time
- Child support
- Property division
The key difference is that in a legal separation, you would remain legally married despite living separately and apart.
Still Have Questions? Ready To Get Started?
For more information on Navigating Legal Separation In Nebraska, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (402) 235-6070 today.
