(Almost) Everything You Ever Wanted to Know About Divorce – Part II, Ticking Clocks & Temporary Hearings

shutterstock_236572615-thumb-400x267-65243There’s no getting around it: divorce can be unpleasant and daunting. For most people, the legal process of divorce is especially foreign and scary. With (Almost) Everything You Ever Wanted to Know About Divorce, we’ll try to take away some of that fear by answering some of the most frequently asked questions we get from our clients about divorce in Nebraska.

In part one, we answered questions about getting started with a Nebraska divorce. In this installment we cover what to expect after you file for divorce in Nebraska.

Q: What happens after the initial divorce papers are filed?

A: The first step in Nebraska divorce after the Complaint for Dissolution of Marriage (divorce complaint) is called “service of process.” That simply means that your spouse has to be served with your Complaint for Dissolution of Marriage. 

Service of Process is defined by Nebraska law, so it has to be done in a certain way. You can’t just hand the papers to your spouse. The most common methods are through a Voluntary Appearance or service by an authorized process server. 

Filing a Complaint with the Clerk of the District Court starts the clock ticking on service of process. If your spouse isn’t served or does not enter a Voluntary Appearance, the court will dismiss your case.

Q: What is a Voluntary Appearance?

A: A Voluntary Appearance is a document that the other party can sign (if they choose) that waives their right to have a summons officially and personally served upon them by an authorized process server.

Signing the Voluntary Appearance does not waive any other rights in the divorce process. The divorce will carry on just as it would if they had been served personally.    

We usually recommend a Voluntary Appearance instead of personal service because it is less frightening to the other party and tends to start off things on a better foot and create less animosity. 

Q: How does service of process on my spouse happen if he/she is unwilling to sign a Voluntary Appearance?

A: Service is usually done through the local Sheriff’s department in the county where your spouse lives. It can also be done in some instances by a state authorized Constable or Civil Process Server.  

There are alternate ways to achieve service – like publication – but they require court approval.

Q: How will I know if my spouse has been served?

A: Most often, service is done by Sheriff and he or she files a Return of Service with the Clerk’s office and our office gets a copy. We keep our clients informed if a problem with service necessitates an alternate method.

Q: How long will my divorce take? 

A: Each situation is unique. We usually say at least six months, sometimes much longer. It can vary widely depending upon a range of factors like cooperativeness of the other party, success or failure at mediation and the court’s calendar. 

Determining parenting time often contributes most to lengthening the process. As both a certified family law mediator and child custody lawyer, I’ve found parenting plan mediation is a wonderful tool for helping parties reach agreement on the important issue of parenting time.

Q: How quickly can I get divorced? 

A: Nebraska has a minimum 60 day waiting period after the date of filing your Complaint with the Clerk of the Court. 

Even in simple divorces where everything is agreed upon, however, it’s tough to get all the required work done and papers executed in that amount of time. If a final “prove up” hearing in court is required, it may take a bit more time depending on the court’s docket availability. 

If a trial is necessary, on the other hand, the process usually takes much longer.

Q: What if my spouse doesn’t want the divorce? 

A: Nebraska is a no-fault state. It may take a little longer to go through the process if the opposing spouse refuses to cooperate or agree on anything, but we are experienced in working with reluctant opposing parties and can get your divorce accomplished.

Q: What if I change my mind and no longer want to proceed with the divorce?

A: In Nebraska, the Plaintiff (the person who files the divorce action) can dismiss the action at any time for any reason (or for no reason) before final submission of the case.  However, if the other party has filed a counterclaim, that claim will not be dismissed unless they agree – so both parties would need to agree for the entire action to be dismissed. 

The court can dismiss the case itself for lack of progression, however, if a divorce is filed and sits for too long without any further action being taken in the case.

Q: Can I get temporary hearing?

A: A temporary hearing regarding property or spousal support can be set up as soon as the case is filed. If the other party has not been served, we will have them served with the temporary motion at the same time they are served with the Complaint for Dissolution of Marriage. 

If there are children involved, a temporary custody hearing can be scheduled as soon as the party who asks for the hearing takes the parenting class.

Q: What should I expect at a temporary hearing? 

A: A temporary hearing is used to resolve any issues that need to be addressed right away to provide stability for the parties and their children as the case progresses. 

The Judge can enter temporary orders on almost anything that needs to be addressed. Common issues in temporary hearings are temporary legal custody of children, parenting time, child support, debt payments, spousal support, possession of the marital home and health insurance.

Q: Do I have to be there for the temporary hearing? 

A: Usually the parties don’t have to appear at the temporary hearing. It’s normally heard in the Judge’s chambers.  

Each attorney will present an affidavit to the Judge 48 hours before the hearing and argue the points in the affidavit at the hearing. It is important you work with your attorney to get a solid affidavit completed in a timely manner. If you don’t, it will make it more difficult – if not impossible – for your attorney to argue your side at the hearing.

Next time in the series

Watch for part III of (Almost) Everything You Ever Wanted To Know About Divorce: Divorce ABC’s & QDRO’s

In the meantime, if you need help with a divorce, call Hightower Reff Law at 402-932-9550, or contact us online. We are experienced Omaha area attorneys who can help you through this difficult process. 

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

Everything You Ever Wanted to Know About Nebraska Divorce (Almost) – Part I

In the (Almost) Everything You Ever Wanted to Know About Divorce series, we’ll try to take some of the fear out of the divorce process by answering some of our clients top Nebraska divorce questions.

Part I – Getting the Divorce Ball Rolling

In part one of our Nebraska Divorce series, we focus on the most common questions we’re asked about getting started with a Nebraska divorce.

Q: How much is a divorce going to cost? 

A: It’s usually not possible to know up front exactly how much a divorce will end up costing you because the facts and circumstances are different in every case. If your divorce is contentious and you can’t reach a settlement agreement, the costs can add up.

Generally, the more you and your spouse agree on, the less you’ll spend on legal fees and court costs.  

Costs of trial can also vary depending on the number and complexity of issues.   

Q: What is a retainer?

A: A retainer payment is money you (the client) pay in advance before the lawyer begins working on your case. The amount of your initial retainer will vary based on the factors surrounding your case. 

Your retainer fund is deposited into a client trust account separate from the firm’s regular business account until the retainer is earned by the firm. The amount of time the lawyer works on the case is paid out of the retainer as the fees are billed.

If the full amount of the retainer is not earned, you get a refund for the money unearned.  If the circumstances of your case deplete the retainer, you will be asked to refresh your retainer fund.

Q: What is the difference between legal separation and divorce? 

In a legal separation, you and your spouse stay legally married. A divorce means you are no longer legally tied to each other through marriage.  

At the conclusion of both a legal separation case and a divorce case, the judge enters a final order to divide assets, real and personal property and retirement accounts. If you have children, that order will also establish child support and parenting time for each party. A legal separation case can be converted to a divorce case at any time.

Q: How long do I have to live in this state before I can file for a Nebraska divorce? 

A: To file for a Nebraska divorce, you or your spouse must live in the state, with the intention of making it your permanent home, for at least one year before filing your divorce. There is one exception: you may file if you were married in Nebraska, have been married less than one year and have lived in Nebraska the entire time since your marriage.

Q: How do I start the divorce process? 

A: The first step to start a divorce is to file a Complaint for Dissolution with the District Court. The court charges a filing fee of $157.

Q:  In what county will my divorce be filed? 

The Complaint for Dissolution can be filed with the Clerk of the District Court in the County where you or your spouse lives.

Q: What about Domestic Violence?

A: In cases of domestic violence, we can help you get linked in with resources to help keep you safe and provide emotional support from the very beginning of the divorce process. 

Additionally, some procedures, like mediation, may be handled differently if there is domestic violence in your marriage. 

For our clients accused of domestic violence, we are able to tie in with counseling services and other resources as well.

Next time in the series

Watch for part II of (Almost) Everything You Ever Wanted To Know About Divorce: Ticking Clocks and Temporary Hearings

In the meantime, if you need help with a divorce, call Hightower Reff Law at 402-932-9550, or contact us online. We are experienced Omaha area attorneys who can help you through this difficult process. 

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts.