A separation is a couple’s conscious choice to live apart. Nebraska law is clear that in a separation couples must reside separately and physically apart. Continuing to live in different bedrooms in the same house doesn’t constitute a separation under Nebraska law. If you want the legal benefits of a separation, you and your spouse must live in different households beginning on your claimed date of separation.
A couple may decide to informally separate by living apart for a short trial period. Informal separations are sometimes helpful to test the waters and determine whether you want to pursue a divorce. Informal separations may last a short time or may span years. In either case, an informal separation is not formally recognized by a court, meaning you won’t reap many of the benefits of a legal separation.
You can seek a formal legal separation by filing a petition with the court. You don’t need to prove fault to bring a legal separation action. Nebraska allows a couple to obtain a legal separation even if only one spouse agrees. A judge will schedule a hearing to consider all factors such as each spouse’s assets and debts, income and earning potential, the best interests of any children, and whether there’s any possibility of reconciliation.
Alternatively, Nebraska allows couples to seek a legal separation without setting foot inside a courtroom. Certain requirements must be met to avoid a hearing. Specifically, 60 days should have passed since either spouse served the petition for legal separation on the other. Both spouses must waive the hearing requirement. Additionally, both spouses must provide a written certification that they’re living apart and submit a written separation agreement. A judge may enter a separation order without a hearing once all requirements have been satisfied.
Separations are temporary solutions to an unhappy marriage. A separation may give you and your spouse time to sort out your differences or your finances. Your separation order may cover all the same issues that would be decided in a divorce. Often, a judge will issue an asset freeze during a separation period where neither spouse is allowed to incur additional debts or sell off assets. A separation period is ultimately a period of waiting. You’re not truly free to move on with your life until you’re divorced.
A divorce decree dissolves your marriage. There’s a finality associated with the divorce process that doesn’t happen with a legal separation. When you’re legally separated you can’t get remarried. Depending on the nature of your separation, you could be liable for a spouse’s debts incurred during a separation period. You can appeal or terminate a separation order, but once you’re divorced, the only way to reconcile is by getting remarried.
Separation orders should cover all issues that may come up during a separation period. Specifically, your separation order should divide property, address spousal support, assign responsibility for debts, designate custody and award child support. If you have additional assets that need dividing such as responsibility for rental properties or a family business, a separation order should also address those issues. Although separation orders rarely last more than a few years, they are permanent orders that are legally enforceable by the court.
Generally, courts will issue legal separation orders after a hearing, during which a judge assesses your assets, family circumstances, and children’s needs. A separation order must meet the same requirements of a divorce decree—it must be reasonably fair to each spouse and serve a child’s best interests.
In many cases, a judge will convert a separation order into a final divorce decree if a couple decides to pursue a divorce. Unless your family’s circumstances take a drastic change for the worse, it will be difficult to change temporary custody orders as part of your divorce.
For example, if your spouse was awarded primary custody, and you were awarded weekend visitation in your separation order, a judge is unlikely to award something different if your child is thriving. However, if your child’s grades are slipping, and she is acting out in school, a judge might adjust custody in a divorce order.
Property orders, like alimony and debt division in your divorce decree, will probably follow the terms of your separation order.
Generally, a judge won’t disturb maintenance or separation orders unless there’s been a material change in circumstances. Because separation orders will impact a future divorce decree, it’s essential to understand your rights and responsibilities in a legal separation. If you’re unsure, you should consult with a local family law attorney.