Legal Separation

Divorce vs. Legal Separation

General Principles

The Nebraska Dissolution Statutes govern the granting of divorce in Nebraska. Actions for dissolution and legal separation presuppose the existence of an existing marriage. Without a valid marriage, the trial court cannot grant any of these forms of relief.

Dissolution of Marriage

The Nebraska Dissolution Statutes provide for two forms of relief: dissolution and legal separation. Nebraska law defines a dissolution of marriage as “the termination of a marriage by decree of a court of competent jurisdiction upon a finding that the marriage is irretrievably broken.” Dissolution is synonymous with divorce. The effect of dissolution is to sever completely the marital relationship.

Legal Separation

The Nebraska Dissolution Statutes define legal separation as “a decree of a court of competent judges providing that two persons who have been legally married shall thereafter live separate and apart and providing for any necessary adjustment of property, support, and custody rights between the parties but not dissolving the marriage.” A legal separation is what was once commonly known as a divorce from bed and board. The parties continue to be legally married, but all other aspects of their marital relationship are severed. A legal separation does not require a finding that the marriage is irretrievably broken.

Legal separation is an option for those persons who, for religious or other reasons, do not believe in divorce. It is also an option for new residents because there is no durational residency requirement for a legal separation. Thus, petitioners who cannot satisfy the one year durational requirement for a dissolution because they have not yet lived in the state for a sufficient period of time can file an action for legal separation and, once the necessary length of residence has been achieved, they can amend the complaint to ask for a dissolution.

Legal separation decrees are final, appealable orders. Accordingly, a notice of appeal must be filed within 30 days of the entry of the legal separation decree to challenge the provisions thereof. Nonetheless, because parties are still legally married following the granting of a legal separation decree, either party may later bring an action for dissolution of the marriage.

The power to alter the provisions of the legal separation decree in the subsequent dissolution action depends on the type of provision being challenged. The court can award alimony in the dissolution action even though none was awarded in the legal separation decree. The court cannot alter the division of property made in the legal separation decree, however, although it can divide property between parties that was not divided in the previous legal separation decree. If custody was granted in the legal separation decree, the grant of custody can be changed in the dissolution decree when there has been a material change in circumstances that would suggest that the custodial parent is unfit or that the best interests of the children dictate changing custody.

Procedure

The procedure for dissolution and legal separation is the same except that the state residency requirement for dissolution does not apply to legal separations and there is no need to show that the marriage is irretrievably broken. For example, the standards for awarding custody of children, dividing property, and ordering support and alimony are the same for both types of proceedings. Dissolution and legal separation proceedings are equitable in nature, and therefore, there is no right to a jury trial. The procedure to be followed in both is governed by the Nebraska Dissolution Statutes and to the extent, it is not inconsistent with Chapter 25 (Civil Procedure) of the Nebraska Revised Statutes. When a child custody determination is to be made, Chapter 43 shall also apply. In sum, you need a good divorce attorney whether you decide to file for divorce or legal separation.

Grounds for Annulment

An annulment may only be granted for one of the statutory grounds. These grounds are found at § 42-374:

 1. The marriage between the parties is prohibited by law;

 2. Either party is impotent at the time of marriage;

 3. Either party has a spouse living at the time of the marriage;

 4. Either party was mentally ill or a person with mental retardation at the time of marriage; or

 5. Force or fraud.