If you are getting divorced in Nebraska, what property do you get to keep and what do you have to split with your spouse? And who will be responsible for the marital debt?
Nebraska is an equitable distribution state, meaning that the marital property will be split between the spouses in a way that is just and reasonable. The court decides what’s just and reasonable based on the complete picture of how each of you contributed to the marriage and what each spouse will need to move forward after divorce. The division does not have to be equal, but it must be fair.
The court is only involved in the property division when the spouses can't resolve their property division on their own. Throughout the divorce process, you will have opportunities to work with your spouse to decide how the property should be divided. The court will usually accept a written property settlement agreement that details what each of you will keep and what you will split up. (You could also use this agreement to tell the court your plans for alimony, child custody, and child support.) It is only where you are unable to reach a compromise with your spouse that the court will step in and divide your property for you.
Learn more about Divorce in Nebraska.
Before the court can divide your property, it needs to know which property belongs to the marriage, which belongs to the spouses separately, and how much there is of each. Generally, marital property is all property acquired or earned during the marriage. Non-marital property is property you owned before marriage. It also includes some property that you acquire during marriage, like an inheritance, a gift (as long as the gift is not from your spouse), and any rents or profits that you make off of your non-marital property.
Likewise, if your non-marital property – say, the house your grandmother left you in her will – increases in value during marriage, then that increase is also your non-marital property. Later, if you sell the house and use the proceeds to buy a vacation cabin, the cabin remains yours alone because you obtained that property in exchange for non-marital property--as long as you keep it in your sole name.
The distinction between marital and non-marital property is important because the court divides only the marital property when the marriage ends. Any non-marital property remains in the hands of the spouse who owned it before or during marriage. The only exception is that the court can use non-marital property to satisfy an order for alimony.
The most common types of property divided at divorce are real property like the family home, personal property like jewelry, and intangible property like income, and pensions. The court will treat debt the same as any other intangible property. Before dividing a debt, the court has to characterize it as marital or non-marital property. Then, if it can’t be excluded as non-marital property, the court will divide it between the spouses based on the same equitable principles applied to distribution of assets.
In Nebraska, the court distributes marital property based on a set of factors that account for the unique circumstances of the marriage and each spouse’s economic condition at divorce. These factors include the length of the marriage and the spouses’ monetary and non-monetary contributions – like homemaking and child care – to the acquisition of property. It also considers what a spouse may have sacrificed for the benefit of the marriage. For instance, if you gave up your education to work in your spouse’s hardware business, or if you postponed your career so that you could raise the children, then the court may give you a larger share of the marital assets to adjust for your loss in earning capacity.
Additionally, the court considers the best interests of your children. If you have custody of the children, then your employment opportunities as a single parent may be compromised. If it is difficult for you to find gainful employment because of the children’s needs, then the balance of property will likely tip in your favor.
As the court shifts property from one spouse to the other, it is not limited by certain numerical guidelines. If it is equitable and reasonable, the court could give you 90% of the marital property and leave your spouse with the other 10%. Although that’s possible, most of the time the court will award a spouse one-third to one-half of the marital property to achieve an equitable result. Of course, that means that the other spouse could get up to two-thirds of the marital property. Nonetheless, courts refer to this guideline as the “one-third to one-half” rule.
In Nebraska, the court considers the same factors for alimony as it does for division of property, but it can’t lump the two calculations together. The court must determine alimony separately to address the specific purpose of the award. It is meant to be a reasonable payment based on one spouse’s needs relative to the other spouse’s ability to pay. For this, the court evaluates the spouses’ marital and non-marital property in addition to their contributions to the marriage and employability, and may order payments from a non-marital source.
You can read the law on division of property and alimony in the Nebraska Revised Statute 42-365.