Frequently Asked Questions

It is a divorce case. We call it “Dissolution of Marriage” to try to be friendlier or more politically correct. Spousal support and alimony are also different words for the same thing. Attorneys are also called lawyers or counselors. I feel like judges call me “Counselor” frequently when I’ve pushed my luck too far. We call it “parenting time” now, instead of “visitation.” Same concept, different words. Personally, I do think “parenting time” is a better word choice. Lawyers like lots of words, so sometimes we have multiple words for the same thing. Sometimes we even make up words just to see if anyone is paying attention.

I will almost always try to talk my clients into filing for divorce, instead of separation, unless there is a good, legal reason to do a separation, because every single time that we have ever filed for separation, my client has later asked me to amend the case to ask for divorce. A separation seems like a kinder, gentler way to go, but generally, if you don’t want to live together anymore, you’re eventually going to just want to get a divorce and move on. You might as well just file it as a Dissolution of Marriage case to begin with. There are a few good reasons to file the case as a Legal Separation case though. The most common reason is that at least one spouse must be a resident of Nebraska for at least one year before you can file for a divorce, so if you cannot meet the jurisdictional requirements for divorce, but you still need to determine custody and support issues, we can file it as a separation case and then amend it to a divorce case after you have been in Nebraska for one year. Sometimes people do not want a divorce for religious reasons. I can respect that. That’s valid. Sometimes one party needs to stay on the other party’s health insurance, and you can only do that for up to six months with a divorce, but you can stay on the other party’s health insurance longer with a separation. Occasionally, there will be a pension or annuity of some sort where the spousal benefit would end if the parties divorced, so they need to be separated instead, in order to preserve that asset. Those are all valid reasons to do a separation.

That’s fine. I have seen couples live separately for decades before finally getting a divorce. You may need to file something with the court if you need a court order to establish custody, parenting time, child support, spousal support, or if you want to get remarried. But if you don’t have any property, don’t acquire any property or significant debts while you’re separated, and can agree on how to raise your children while living in separate households, you can just live separate without a court order. However, it becomes a bit of a grey area as to the valuation date of the marital estate if you don’t file something. For example, say the husband moves out of the marital home and into a different home. He starts his own business, and he becomes successful. He pays the wife’s bills each month. Years go by. She doesn’t work because she is being taken care of financially. She is not contributing to his business at all. She runs up $30,000 in credit card bills. If they get divorced or legally separated now, does she get half of the business that he started and grew all on his own after they separated? Is he responsible for half of her credit card debt? What if she had a new lover, and that credit card debt was to take the new guy out to dinner and meet him at a hotel once a week? Filing for a legal separation or divorce can avoid having to fight over questions like that.

You cannot obtain a valid divorce in Nebraska in less than sixty days from the date the other party is served with the Complaint, or from the time when a Voluntary Appearance form is filed. One or the other of those two things (service of process or a Voluntary Appearance being filed) have to happen within six months of the Complaint being filed to avoid dismissal. This sixty-day waiting period is because the legislature has required a cooling off period to ensure that couples really want to get a divorce before proceeding. A small percentage of all divorce filings are dismissed within the first sixty days when couples reconcile their differences. As far as how long it can take, it is common for a divorce case to take a year or longer, especially if it is contested. If it is a high asset divorce, and the parties need to value businesses and real property, it may even take two or three years. For a simple timeline that includes applicable milestones, see page 5 of the Nebraska Parenting Act brochure. Nebraska Parenting Act brochure

If you have minor children, and do not agree on custody, then you will have to attempt mediation before you can set the case for a final hearing or trial. Sometimes the judge will order mediation even if you do not have minor children.

Not in Lancaster County, Nebraska. Some of the other counties also have local rules requiring that you mediate first. You need to check your local rules.

No. The ethical rules prevent attorneys from representing both parties. You can both meet with the same attorney, and the attorney can prepare the settlement documents for both of you to sign. However, keep in mind that the attorney is only representing one of the parties no matter how friendly the attorney is to both of you. So, if your spouse has an attorney, it is best to have your own attorney to ensure that your interests are adequately represented. I often meet with my client and the other side who is unrepresented and prepare documents for both of them to sign. When I do this, I am only representing my client’s interests. That said, personally, I am going to try to divide debts and assets equitably because I want the Court to approve the agreement, and I am going to create a child support calculation in accordance with the guidelines, because again, I want the Court to approve it. Any Parenting Plan I prepare will also have to be approved and accepted by the Court before it will be put into place, so I am still going to have to create a plan that will work for both sides. My personal preference is to be fair and reasonable, but I can’t speak to other attorneys’ positions on that. Keep in mind that if I represent you, and if the other party does not have an attorney, I have to communicate with the other party directly to get the matter settled or to get the information we will need to go to trial, and I still have to bill you for that work, because you are my client, not them.

There is absolutely no formula for that whatsoever. It’s based on a lot of factors like the parties’ health and other circumstances, their income and earning capacity, the length 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. One party might have a high need for alimony, but there just may not be enough money there to support an alimony award. However, if you are an able-bodied forty-year-old male who makes over $100,000 per year, and your wife has been a stay-at-home mother for the last fifteen years of a twenty-year marriage, she gave up her career as a nurse to stay home with the children, and she still has toddlers at home, you will likely be paying alimony. How much? It depends, in part, on how much money you have left from your paycheck after paying your necessary bills, and how much she needs to pay her bills. It is highly case specific. One attorney recently told me that she has seen a trend towards awarding $1,000 of alimony for every $100,000 that the spouse paying alimony earned, but of course, that depends on what the payee spouse made and all of the other factors. It used to be a loose rule of thumb that alimony was awarded for half the term of the marriage if the marriage lasted more than ten years, but judges do not strictly adhere to that rule, and a disabled spouse can potentially receive alimony for a much longer period of time. Also, half the term of marriage may not be feasible if the parties are older and the bread-winner will retire in three years.

Generally, no. The judge does have some discretion, but we have child support guidelines and a child support calculator to make it easier (and more consistent) to determine child support. The biggest factors impacting child support are gross income, health insurance deductions, and the allocation of parenting time.

Probably, yes. Whether a parent has four or seven days out of every fourteen with the children makes a difference. Whether a parent has two or four days out of every fourteen does not make as much difference. That said, judges do not like to see parents fighting for custody just to lower their child support obligation, and that could very well be a reason for a judge to award custody to the other parent if you do that. Child custody should be based on the best interests of the child. The parties should be actively determining a parenting time arrangement that provides stability and comfort for the child, that ensures the child’s physical and emotional needs are met, that maximizes the time the child is with parents instead of in daycare, that provides as little disruption from the old routine as possible, that ensures the child will be getting to school on time, that ensures the child will be taking his or her medications as needed, and that reduces parental conflict. Child custody decisions should not be based on a desire to avoid child support obligations.

No. The court has to address child support in a divorce or custody case, and the judge has to have a child support calculation to attach to the Decree or Order. Sometimes we can do a downward deviation if one parent is providing more of the transportation, and there is expense involved, or if one parent is providing a teenage child with a car, car insurance, and a cell phone. There are often extenuating circumstances that can be taken into consideration with a downward deviation, but the court must approve the downward deviation and sometimes the court doesn’t. Often times, when I am doing a joint custody child support calculation, and the parents’ incomes are similar, one parent will owe the other parent less than $50 per month, and I will ask for a downward deviation because the amount is de minimis.

Probably not. Affidavits are sworn (notarized) written statements from witnesses, including the parties. Affidavits are crucial for the temporary custody hearing and the sooner we can get them from you, your friends, family, etc., the better, for the purposes of that hearing. However, after that, you should be getting your witnesses to agree to come to trial and testify live, and we should be preparing questions to ask them. We use Affidavits at the temporary custody stage, not at the final trial stage. That said, if the other side was not represented, and you knew how to offer an Affidavit at trial, and no one objected based on foundation and hearsay, and the judge accepted it, that would be better than nothing, but those are a lot of “ifs” to satisfy. Alternatively, if you knew for certain that the other side would not show up, you might try to offer them (because there would be no one to object). I have occasionally read appellate opinions referencing Affidavits that were part of the record, and I recently handled an appeal where we cited to the initial child custody Affidavits, so it’s not beyond the realm of possibility that the court would consider them. Best practices for a final hearing, though, is to have live witnesses. When in doubt as to whether Affidavits will be used, or live testimony will be expected, you should ask your attorney, or, if you’re not represented, contact the judge’s bailiff and ask. I still occasionally email the bailiff and ask that question if it’s a kind of hearing that I’m not accustomed to or in a jurisdiction to which I don’t travel often. There’s no shame in asking. The bailiffs are the keepers of the court’s calendar (at least in Lancaster County), and they provide us with hearing dates, provide us with Zoom links, and let us know how the judge wants to receive evidence.

It depends on the issues. If everyone is in agreement on a parenting plan and we just have to prepare a parenting plan and submit it to the court, I do not need a lot of documents. In a contested case, usually text messages between the parties are the most relevant. I like to have a few photos of my client with the children, and photos of the home to show the child has his or her own bedroom, or at least his or her own bed, and the house is clean and in good condition. If you’re the dad, and your child is older than four years old, find me the Acknowledgement of Paternity you signed. If you’re trying to show the court that the other party is a meth head, give me some pictures or texts proving this. If you’re saying his house is filthy, give me some photos of his or her house. If you’re trying to tell me that the other parent is abusive, do you have photos of bruises? Have you called CPS? What documents or photos do you have that show you are a fit parent? What do you have to show the other person is not? I also need the information pertinent to child support (paystubs, W2s, health insurance information, etc.). If there is another case filed elsewhere, you must tell me about it and give me the order from that state. You do not want to litigate your custody case for two years, only to find out that the judge’s order is void because there was already a case filed in a different state.

When I started practicing family law, there was a hard, solid, impenetrable wall to bringing custody cases on behalf of a dad (or sometimes the mom) if the child was over four years of age. There was then, and still is now, a four-year statute of limitations for paternity cases. It used to be that if you filed one past four years of age for the child, you held your breath and waited to see if the opposing party would raise the statute of limitations as a defense. Sometimes you could get around it if the State brought a paternity action to establish child support because the statute of limitations does not apply to the State. Now, though, we have another way around the statute of limitations. If there is a signed Acknowledgement of Paternity, that document will establish paternity, and then the statute of limitations is no longer applicable. You can check with Vital Records to see if you signed one, if you don’t have it.

The biggest reason to get a prenuptial agreement, or at least to visit with an attorney about a prenup, is so you know the rules that apply in the event of a death or divorce. Maybe the default rules are fine, and you just want to stick with the default rules. That’s okay, but realize those rules can change during your marriage, and you might be stuck with rules that you would not have wanted, and that were not yet applicable when you married your spouse. For example, the treatment of premarital real property in a divorce, and especially farmland owned by one party before the marriage, has changed significantly in the last five years. With a prenup, you and your future spouse can determine the rules that will apply to the division of your property, the payment of alimony and some other issues. It is also very helpful to make a list of your debts and assets, and the values of each, and attach that to the prenup, so you do not spend so much money in a divorce arguing about who had what property or debts. On the probate side of things, if you get married later in life, and you already have children with someone else, a prenup will allow you to leave more property to your children and less to your future spouse. Your future spouse may have his or her own children and desire to leave property to them as well. In short, the value of the prenup comes in having proof of your debts and assets and in being able to set your own rules regarding the handing of your property, rather than leaving it up to the legislature and the courts to decide how your marital estate or probate estate will be divided.

Not precisely, no. I charge for the initial consultation at the same rate as any other work I do on the case. I do not usually charge for the initial phone call unless it is excessive (i.e. more than one hour long, or I am asked to do multiple searches on Justice for case filings). My general practice is to talk to you on the phone and determine if you are a good fit for legal representation. If I like you and think I can help solve your legal problem, I will email a retainer agreement and a questionnaire to you. Once you return the completed questionnaire, we can set up an initial appointment. Once in a while, I will have someone who does not know if they want to get a divorce or to file anything, and they just want to talk about it, not hire me. In that case, I will make arrangements for an agreed-upon consultation fee, when there won’t be an ongoing relationship.

It depends on the complexity of the case and the current market conditions. Most family law attorneys charge different rates and different retainers depending on the specific details of the case. I do have a set hourly rate for most cases, and a set retainer for most kinds of cases, but I have a few questions that I ask potential clients before I can answer that question, including whether it’s a custody case, involves the division of businesses, involves extensive travel, requires expert witnesses, etc. I do charge a retainer for most cases, and I do require that to be paid in advance before I file anything in the case. You can pay your retainer in more than one payment, but I don’t file anything with the court until the whole retainer is paid. If the entire retainer is not used for legal fees, costs and expenses, then any unused portion will be refunded to you.

Yes. I prefer cash or check, because of credit card fees, but I do accept credit cards. I can email you a link to pay the retainer or your bill with a credit card.

Sometimes, but only through the Volunteer Lawyers Project, or occasional private referrals. I do not take pro bono cases from people calling my office and asking for free representation.