Guide to Divorce

Expectations

My Expectations of You

• Payment of your bill. You will need to adhere to the provisions in the Fee Agreement which include payment of your retainer and monthly payment on your bill. No exceptions will be made.
• Three Rules.
  • No dating;
  • no use of illegal drugs;
  • if you drink, drink in moderation.

Any of these acts can create unnecessary complications during the divorce process, especially when children are involved. Complications can cause your attorney fees to increase and for the process to be difficult.

• Listen and follow my advice. Use your family and friends for emotional support, not necessarily for legal advice. Your well-meaning family and friends may offer you advice about your case. Frequently such advice is not accurate, and you should be cautious in following it. The facts surrounding your marriage, divorce, children, and property are unique and are different from any other case.
• I will only represent you, not your spouse. If you and your spouse have agreed on everything, it may be possible that I prepare the necessary legal documents to effectuate your settlement, but I will represent and advise only one of you. If you and your spouse disagree later, I will continue to represent only you.
• Tell the truth. If you are not truthful, I will not represent you. In order to effectively represent your interests, I need to know the truth – good or bad. More information is better than too little. I will need to address situations as they arise so I would prefer to be in the know rather than caught off guard, especially by opposing counsel. I also expect you to handle your financial commitments to my office in a prompt and businesslike manner. Please notify me of any change of address or telephone number or of any new information that may affect your case.
• Open communication. Tell me everything you know. Something that may not seem important to you may be critical to your case. If the other side knows something that I do not, the information could be used against you, and I would be unprepared and unable to defend you against it. However, if you give me the information, no matter how bad it may appear, then I can take the proper steps to prepare a defense to avert what could otherwise turn out to be a disaster.

Your Expectations of Me

• Return Phone calls and emails. I generally will try to return telephone calls within the next business day of receiving the phone call or email. However there will be days where I will be in court all day and unable to contact you that
  day. Always feel welcome to leave detailed messages with my assistant as she will
  forward the information to me. I know this process can be overwhelming, confusing and uncertain, so please express your questions or concerns. Please feel free to use emails because I check emails on a regular basis.
• Advocacy. I will zealously represent your interests throughout these proceedings. This means I will be attentive, listen, and always be prepared prior to any court hearing, deposition, or meeting. It does not mean I will always tell you what you want to hear.
• Keeping you Informed. You will receive copies of all documents that were prepared or received by me. I will always keep you advised of court hearings, telephone conferences and outcomes in a timely manner. I will always be available to answer all of your questions. I will keep you informed of any updates and process along the way.
• Confidentiality. I take the attorney client privilege very seriously. I will not talk to family members or friends about your case even if they call, without your permission. I also will not acknowledge you in public unless you approach me first. I understand that I may be the last person you want to see, so please do not think I am being rude. Rather, I am trying to respect your confidentiality as a client.
• Advice. I will advise you on all relevant issues and advise you what you should do and what is in your best interests. This advice is based on my years of experience doing family law. You may not like what I have to say and you may disagree, however I will never sugar coat or tell you what you want to hear just to lead you on. This creates false expectations and frustration. Please note there are no guarantees with regards to outcomes and I never promise any certain outcome. Much of family law is based on the discretion of the Court and therefore depends on the particular judge, his/her experiences and personal biases which can be difficult to determine.
• Fair billing. I bill for the work I do – no more, no less. You will receive a monthly bill detailing the work I did for you for that month and the time dedicated to your case. If you have any questions when receiving the bill, please contact me.

The Legal Process

Grounds

• No Fault Divorce State
  Nebraska is a no fault divorce state. This means that neither party has to prove a reason for the divorce. The Courts will not ask why you are getting divorced. It can be as significant as abuse or as insignificant as the way one dresses. Only one party needs to state that the marriage is irretrievably broken, that all efforts of reconciliation have failed, and any future efforts at reconciliation will prove futile. The other party cannot “fight” the dissolving of a marriage contract.

• Residency Requirements
  Prior to filing the Complaint, you or your spouse must have resided in Nebraska for one year prior to filing the complaint for dissolution. You file in the county that either you or your spouse currently reside in. If you do not meet residency requirement, you may chose to file for Legal Separation until such time as you qualify for a dissolution.

• Legal Separation
  Although legal separation is possible, the reasons for doing so are very case specific. It can be more costly because couples file for a legal separation thinking they want to work on the marriage but often times couples end up divorcing. This leads to higher costs for you. Therefore I would want to discuss the rationale with you for wanting to file for a legal separation. I recommend counseling; and I will be glad to recommend some counselors. Do not use a legal separation as a substitute for effective marriage counseling. If you want the marriage to work, you will probably need counseling. If you do not want a divorce, try to avoid one if reasonably possible. With a legal separation, you only have to reside in Nebraska. The length of time does not matter as it does with a dissolution.

• Annulment
  Annulments are granted by the Court only in certain rare situations. The legal effect is to void a marriage from the very beginning—as if the parties had never married.

• Premarital or Antenuptual Agreement
  Prenuptial and antenuptial agreements are the same thing. They are different names for a document that sets out the terms of a marriage when there is a death or divorce. If you signed one of these prior to your marriage, let me know. That document may control certain terms of the dissolution of your marriage, depending on the language, how and when it was executed etc. It also can be contested under certain circumstances.

• Marriage Contract
  At the end of the process, the Court will dissolve the marriage contract. Once the dissolution of the marriage contract is final, three basic things happen:

• Allows each other to remarry. In Nebraska, there is a six (6) month waiting period, wherein you cannot remarry anyone in the world for a period of six (6) months from the date the Decree is entered.
• Neither party can inherit from the other.
• Spouse (now ex-spouse) no longer has any claim (contractual, equitable, legal or marital) to personal or real property which you acquire after the divorce date.

Process

• Filing-Complaint
  The legal document that starts the proceeding is referred to as the Complaint for Dissolution of Marriage or the Complaint. It also covers certain technical matters and asks the Court for anything you might want. There is a filing fee. The Complaint is a pleading in which you ask for the relief you are seeking from the Court. If the complaint seems long or includes more than what you think is appropriate, think of it as a wish list. If the wording seems strange, remember that it is a formal legal document and much of the wording is required by law. If your spouse has already filed, be sure that your lawyer has a copy of the Complaint as soon as possible. The spouse who files first is the plaintiff. The other spouse is the defendant and must respond to the complaint in a formal document known as an answer. The defendant may also file a counter-complaint requesting similar relief from the Court.

• Service
  Once a Complaint is filed then the spouse can be served with filed copies of the Complaint one of three ways. First, I can send the spouse a Voluntary Appearance with a letter explaining who I am and request s/he sign the Voluntary Appearance. Second, you can hand deliver the paperwork to your spouse requesting your spouse to sign the Voluntary Appearance and return to my office. Third, the spouse can be served the papers by the sheriff. Generally I use this as a last resort if the spouse refuses to sign a Voluntary Appearance. Service must be obtained before we can move forward with the divorce.

• Waiting Period
  The Court will not grant a divorce, or sign a decree of dissolution, until at least sixty (60) days after service is obtained on the spouse. This is a minimum interval. My experience indicates a typical divorce takes approximately eight (8) to ten (10) months.
  
  During this time, we will work out the details of custody, parenting time, financial support, and property settlement, or, if necessary, prepare for trial.

• Answer
  Once served, you will need to file an Answer within 30 days from getting “served” (either by the sheriff or signing the Voluntary Appearance). The Answer allows you to give your side of the story and to admit or deny each claim in the Complaint. You may also file a “Counter-Complaint” and request a divorce in response to your spouse seeking a divorce.

• Temporary Orders
  Once a complaint is filed and service is obtained, either party can seek temporary relief from the Court regarding issues of custody, parenting time, child support, spousal support, restraining orders and who is to continue residing in the family home. These issues can be temporarily dealt with until a final resolution can be made. The judge will issue a temporary order that will remain in effect until the time a final divorce decree is signed.

• Mediation Requirements
  Mediation of custody and visitation is mandatory in every lawsuit (dissolution, paternity, modification) when custody and parenting time are at issue. The parties need to sign up and attend “What About the Children” class. It is a one time session and the parties do not need to attend together. Please call as soon as possible to sign up for the class. Once both parents have taken a class, then you will meet with a mediator. The rule requires both parties at least attempt mediation to resolve custody and visitation issues. The agreement, if any, then is reduced to a Parenting Plan which is ultimately signed by the judge. These steps must be complied with before a trial date will be set.

• Discovery
  Discovery generally takes place over the next several weeks and/or months. Discovery can include written questions, known as Interrogatories or Request for Production of Documents, or face-to-face questions before a court reporter known as a Deposition. Interrogatories and Request for Production of Documents must be responded to properly and the responses filed within thirty (30) days of receipt. The answers are sworn under oath to be true and accurate. It is important to disclose all assets and liabilities during this process.

• Settlement/Trial
  After discovery is complete, the next step is to work on settling any or all issues outside of Court or to obtain a trial date to resolve the issues in controversy. The parties, with the assistance of counsel, can work towards a resolution of the issues in controversy outside the courtroom. After full disclosure of all assets and liabilities, the attorney can meet with the client; reduce to writing terms you feel are fair for settlement purposes. We can also schedule a settlement conference in which parties and attorneys meet face to face to discuss settlement terms.
  • Settling out of court provides a few advantages:
    (1) it allows each spouse to maintain a certain amount of control over the terms they agree to;
    (2) it can shorten the process;
    (3) it encourages compliance if each spouse is able to consciously agree to the terms, rather than the Court forcing its own opinion onto the parties; and
    (4) it avoids appeal.
• If the parties cannot agree on part or all of the issues in the action, a proposed scheduling order will need to be filed with the Court in order to obtain a trial date. The actual date is dependent upon the individual Court and its calendar. Many times the Court’s docket is very full and depending upon how much time is needed, a trial date may be set several months down the road. This is something that is out of control of both parties and attorneys.
  
  At trial, both parties will have an opportunity to testify before the Court. There are no jury trials in any family law case. The trial is a bench trial—meaning it is set before the judge. Evidence, trial exhibits and witnesses will be presented. You will be subject to cross-examination. We will prepare several weeks in advance to prepare you and your witnesses. After the trial, the Court will take the matter under advisement. The Court then generally issues its findings in writing after the trial.

• Final Order
  The dissolution of marriage and orders contained in the Final Decree are final thirty (30) days from the entry of the Final Decree. You have certain legal rights after a Final Decree is entered if you are not satisfied with the outcome. You have the right to file a Motion for New Trial within ten (10) days from the entry of the Decree before the District Court Judge and you have the right to file a Notice of Appeal within thirty (30) days from the entry of the Final Decree before the Court of Appeals.
  
  Orders of the Court for alimony (if originally ordered), child support, custody, and parenting time may be modified after the entry of the Decree upon a showing of a material change in circumstances. The Court cannot modify property settlements, attorney fees or order spousal support if no support was originally ordered.

• Appeal
  If you wish to appeal any of the Orders of the Court, you have thirty (30) days from the date of the Final Decree. Failure to file within thirty (30) days from the entry date the Decree of Dissolution causes your right to appeal to be permanently lost.

Issues Court will deal with during dissolution

Minor (Under 19) Children in a Divorce

Not in the Middle

If you have children, the divorce will likely be as difficult for them as it is for you. Children will normally feel fear, confusion, guilt, depression, anger, and other emotions. Although you will be feeling these emotions too, you have a lifetime of experience to help you. The children only have two parents who they look up to and who now seem to be a source of distress rather than reassurance.

You need to take steps to ease the burden on your children. Part of this involves how you tell them about the divorce and what you say about your spouse. If possible, it is usually better if you tell the children about the divorce together. Do not dump your bad feelings about your spouse on your children. Simply tell them that the grown-ups have decided it is better to live apart. Tell the children that the divorce is not their fault and that they will still have both parents. Avoid talking badly about the other parent. A child is derived from both parents. If they are forced to look upon a parent as bad, they cannot help but feel badly about part of themselves. Also, the Court does not like it nor will the Court tolerate such behavior. Tell the children it is all right to love both parents. Never get mad and compare your child to the other parent. “You are just as bad as your no-good mother/father,” are not words a child needs to hear.

Counseling may help many children as they adapt to life after their parents separate. I will be glad to recommend a counselor if you want one. There are also some good books out there to help your children cope with divorce. For younger children, The Dinosaurs Divorce by Laurence Krasny Brown and Marc Brown is helpful because they can relate to the pictures. For school-age children, The Boys and Girls Book About Divorce by Richard A. Gardner is a good choice. Your public library can also help you with reading material for your children.

Legal Standard

The legal standard in deciding who will get custody is what is in the “best interests of the children.” Every judge sees it differently.

Custody cases are the most destructive litigation. Be sure that the children would be significantly better off with you than the other parent before you get involved in a custody fight. Custody cases are high in both the emotional cost and in the legal cost. The damage caused by winning a custody case can be significant as well as the damage caused by losing.

The children may need their own lawyer. This type of lawyer is known as a Guardian Ad Litem or attorney for the child (ren). The Guardian Ad Litem is appointed by the Court to look into the best interest of the child (ren). This can add significantly to the cost of your case.

Property Division

It is critical you tell me all you know about all the assets. Property includes real estate, and personal property, (both tangible and intangible). Property can include real estate, pensions (both vested and unvested plans), stock options, motor vehicles, businesses, coin or art collections—almost anything. Next, you must determine whether the particular piece of property is separate property and remains with the person who owned it. Separate property is usually acquired before the marriage or outside the marriage, such as by gift or inheritance. Marital property is usually acquired during the marriage. Under certain circumstances, marital property can include increases in value to separate property that occur during the marriage. Please fill out the Family Financial packet to the best of your ability.

If you and your spouse can agree on how things will be divided and if your agreement is reasonable, it will be approved by the Court. Otherwise, Nebraska is an equitable distribution state and the Court has the discretion to divide assets and liabilities as it deems is fair, just and not unconscionable. Courts generally will offset gifts, inheritance, all premarital property as your separate property as long as the asset has not been comingled into the marital estate and you are able to trace the nonmarital asset. The Court ultimately makes this determination.

Despite an agreement for one spouse to pay a debt that is in both parties’ names, there can still be problems with the enforcement of the payment for the debt. If the party responsible for the debt does not pay the debt, the other party can still be sued for the debt.

For example, the wife gets the house and agrees to pay the mortgage which is in the husband and wife’s name and the wife dies and/or goes bankrupt. The mortgage company can foreclose on the house if the payments go unpaid and sue the husband for any unpaid balance after foreclosure. The best way to protect the husband in this case would be for the wife to refinance the property and to remove the husband from the debt, if possible. Sometimes this is financially impossible for large debts such as houses wherein a spouse may be unable to refinance on their own.

Do not hide assets. These assets are usually found; and if they are found, you will have committed fraud on the Court. You will lose credibility with the Court and may have attorney fees assessed against you as a result. Be honest throughout this process.