The Right to Divorce – Lifting the Legal Limbo for Same Sex Couples

shutterstock_34797877-thumb-400x301-65252Whether or not you are among those cheering last week’s Supreme Court decision recognizing Constitutional protection for same sex marriage, there is no denying that it has changed state of the law in the United States in a big way.

The Other Side of the Marriage Coin

While most of the attention from the ruling has been on the right to get married, there is, of course, another side to the coin that’s just as important, legally speaking. When you have the right to marry, you have the right to divorce. Last week’s decision was good news for many gay and lesbian couples in Nebraska and across the country – those looking to get married and those looking to get divorced.

Before last week’s decision, the patchwork of state laws on same sex marriage left Nebraska same sex couples who married in another state in legal limbo. They couldn’t get a divorce because Nebraska didn’t recognize their marriage in the first place. If you weren’t married in the eyes of the law, there was no marriage to dissolve with a divorce proceeding. You were stuck.

Pack your Bags and Settle in

Until last week, for Nebraska same sex couples to get a divorce, one spouse had to move to a state recognizing same sex marriage and establish residency before being allowed to file for divorce. Most states’ residency requirement is six months to one year.

For many, that sort of relocation flexibility isn’t possible, so they were stuck in a world of uncertainty regarding their rights and obligations – including the right to inherit, the right to sell property and the right to utilize income from that property.

Leaving Legal Limbo

Now, not only can same sex couples in Nebraska go to their county clerk’s office for a marriage license, they can go to the court clerk and file their divorce petition. For many this is going to be a huge relief.

The Supreme Court has held that a marriage is a marriage. That means the same laws that apply to opposite sex divorce in Nebraska now apply to same sex divorce. If a marriage is a marriage, a divorce is a divorce.

If you need help with a Nebraska divorce, the confident, clear, committed attorneys at Hightower Reff Law are here to help. Contact us online or call us at 402-932-9550.

Got a Felony Warrant? Here’s What to Expect – Part I, Lawyering up and Your Arrest

shutterstock_256858591-thumb-400x261-65250Finding out there’s a felony warrant for your arrest turns your world upside down. Not only are your freedom and your future on the line – if it is your first arrest, you’ll have no idea what to expect. This series will give you the basic information you’ll want to know if you or a loved one is facing a felony criminal charge in Nebraska. 

In Part I, you’ll learn your options once you learn of the warrant and what to expect once you are arrested.

(Don’t) Take it on the Run, Baby

You will be taken into police custody – usually by walking into the police station. If you hire us, we will take you in and be with you through the booking process. 

Whether you have a preliminary hearing will be up to you and your attorney, and will depend upon your case. During the preliminary hearing, the prosecutor has to show probable cause for every element of the crimes with which you are charged to show the court that they have enough evidence to go forward with the case against you. 

It’s a catchy sounding song lyric “take it on the run,” but not a good idea if you find out there’s a felony warrant out for your arrest. No attorney worth their salt would ever tell you to do it. Neither will Hightower Reff Law. What you should do – call us BEFORE you talk to the police or turn yourself in. 

We can contact the police for you and arrange for your peaceful, quiet surrender, and make sure your rights are protected from the beginning of the case.

We will talk to the police for you in most cases. What you say to them can be used against you, but what we say to them can’t.  Also, it’s perfectly legal for police to trick you into saying things –  but we know all the tricks. 

The Arrest

A police officer will advise you of your rights and the charges against you before or after booking. During the booking process, you will be finger printed, photographed, and your personal belongings will be inventoried and taken for safekeeping. For this reason, we advise clients to leave all watches, money, and jewelry at home when they turn themselves in. 

Depending on the charge, you may be held in jail pending a hearing to set your bond. In most felony cases, you will go to jail when you surrender. 

Shut it, shut it, shut it

You have the right to shut it. So, shut it. You have the right to remain silent – that means to NOT speak to the police. In most cases, that is exactly what we will advise you to do. Despite what you may have seen on your favorite crime drama show, people almost never talk the police out of arresting them. Usually, they just add nails to their coffins instead. 

First Court Appearance

After your arrest, you will have a hearing in county court called an Arraignment and Bond Setting Hearing (unless you are charged with a felony and the prosecutor has taken special steps. Then, you may have this hearing in district court). 

You will appear in court, the judge will advise you of the charges against you and possible penalties, and you will enter a plea. Your attorney will talk about plea options with you before the hearing. 

In felony cases, you usually can’t enter a guilty plea in at the initial appearance, even if you could, we recommend our clients enter a not guilty plea while we do the ground work on the case that’s necessary to do a full evaluation of your best options. 

You will also tell the court whether you want to exercise your right to a preliminary hearing. 

Preliminary Hearing – Maybe yes, Maybe no

If you waive the preliminary hearing at the initial appearance, the judge will send your felony case to district court. 

If you have a preliminary hearing and the prosecutor is able to provide the required probable cause – your case will be also sent to district court or, “bound over.” 

Next Time in the Series

Watch for Part II of our felony FAQ series – To Plea or Not to Plea.  

In the meantime, if you or a loved one needs help with a criminal case, Hightower Reff can help. Contact us online, or call us at 402-932-9550

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. 

(Almost) Everything You Ever Wanted to Know About Divorce = Part IV

shutterstock_339672179There’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. 

Part IV – Child Custody & Support Must-Have Info

In part one, we answered questions about getting started with a Nebraska divorce. In part two of the series, we talked about what to expect after you file for divorce in Nebraska. Next, in part three of our series, we covered some divorce basics including Qualified Domestic Relations Orders (QDRO’s). This week, we give you the basic info you need to know about child custody & support.  

Q: Do I have to take a parenting class?  

A.  Yes. It’s required by the Nebraska Parenting Act in any case involving access to a child (parenting time & grandparent visitation). Every adult involved in the case must take an approved class.

Q: What will I learn at the parenting class?

A: The Nebraska Supreme Court approved parenting classes mandated by the Nebraska Parenting Act cover Nebraska’s legal process; divorce timeline; requirements of the Parenting Act; contents of a parenting plan; mediation process; helping children during transitions; and about other resources you might find helpful.

Q: Can I take the Parenting Class Online?

A:  Maybe. There are two levels of parenting class – Basic & Second Level. The basic class is what is required in most cases, and can be taken online. However, if Nebraska Law requires the parties to take the Second Level class, or the judge, orders it, it must be done in person with a Nebraska provider. More information is available at the Nebraska Supreme Court website.

Q: How much does the parenting class cost?

A: Fees vary by provider. Most basic classes cost around $50. If you cannot afford to pay for the class, you may ask the judge to waive the fee. 

Q: What if I refuse to take the class, or the other party refuses?

A:  In Douglas County one party takes the class then the other party is sent a notice to take the class.  If he or she fails to take the class, that person will get a second notice.  In the event the party still does not take the class the matter is closed by Conciliation Court.  The matter then goes into default or will be set for trial.  In all other Nebraska counties if either party fails to take the matter is set for trial or goes into default.

If you have an attorney, he or she should advise you to take the class as soon as the case gets started – regardless of whether you are Plaintiff or Defendant. Failing to take the parenting class may hurt your claim for custody or parenting time & just doesn’t look very good to the court. 

Q: What is the difference between physical & legal custody?

A: Physical custody means physical possession of the child, while legal custody means authority to make decisions for the child about things like where they will go to school, what sports or activities in which they participate, and what religion they will observe. 

Q: What is a parenting plan?

A: A parenting plan is a document that sets forth who has physical and legal custody of the child and who the child when (parenting time). It will also specify things like who will spend which holidays and birthdays, vacation time, or other special occasions with the child. It can also include any other provisions necessary to your circumstances to provide smooth stable relationships related to parenting after the divorce or separation.

Q: How is child support calculated?

A: The Nebraska Supreme Court has developed a formula for child support calculation & child support guidelines based on the custody arrangement and the income and obligations of each party.  There may be circumstances that warrant a deviation from child support guidelines, however. If child support is an issue in your case, it’s important to have an attorney that is knowledgeable about this specialized practice area so they know how to spot circumstances that may be appropriate for a deviation. 

Q: Can the other parent & I agree to a different amount of child support, other than that required by the Nebraska Child Support Guidelines?

A: Maybe, but the court will have to approve it. Child support is for the benefit of your child. It is up to the discretion of the judge to grant a request for deviation, even if the parties have an agreement. The judge will base his or her decision on the best interests of your child. 

Q: How long do I have to pay child support?

A: In Nebraska cases, it will be until your child reaches the age of 19. There are some circumstances when support may terminate at a different time, but they are relatively uncommon. 

Q: Will my wages be garnished to pay child support?

A: Yes. In Nebraska it’s mandatory that your child support is withheld from your paycheck. If you are self-employed or have other employment arrangements where you are not paid through a regular payroll, you will pay through the Nebraska Child Support Payment Center

Q: Is there a minimum amount of child support?

A: Yes. In cases involving extreme circumstances like poverty, the court may order the minimum support of $50 per month.

Next time in the series

Watch for part V of (Almost) Everything You Ever Wanted to Know About Divorce: Getting the Final Order & After the Ink’s Dry – Why The End of Your Divorce Case Doesn’t Necessarily Mean it’s Finished

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. 

(Almost) Everything You Ever Wanted to Know About Divorce – Part III, Divorce ABC’s & QDRO’s

shutterstock_284011172-thumb-400x267-65245-thumb-300x200-65246There’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 part two of the series, we talked about what to expect after you file for divorce in Nebraska. For part III of our series, we are covering some divorce basics, including Qualified Domestic Relations Orders (QDRO’s). 

Q: What is marital property?

A:  Marital property is anything acquired during the marriage, unless it was inherited or gifted specifically to you or your spouse. This may seem straightforward, but it can be tricky. In some instances, if your spouse contributed to the improvement of property or paid for it after the marriage, the court may award your spouse all or part of that property or its value. 

Q: How does the court divide marital property?

A:  If you and your spouse can’t agree on what each of you will take, or how much money you will receive in settlement of the property issues, the judge will decide. Your attorney and your spouse’s attorney will both present evidence at a trial and argue their case. Then, the judge will make what he or she believes is an equitable distribution of marital property, according to Nebraska law. 

Keep in mind, equitable and equal are not the same. 

Q: Do I get to keep my retirement accounts?

A:  Probably not. Retirement funds accrued during the marriage will likely be equitably divided between the parties.

If it’s an employer sponsored retirement program, the court will have to enter a Qualified Domestic Relations Order (QDRO), which can be incorporated into the divorce decree.

Under the requirements of Federal law, there are steps that have to be taken to ensure that the court’s order will meet the requirements of a QDRO. Among them – approval by the retirement plan’s administrator.

Other retirement investment accounts, like individual retirement accounts (IRA), don’t require a QDRO. 

Q: Will I have to pay spousal support?

A:  Spousal support (also commonly known as alimony) can be awarded if a party gave up a career during the marriage to raise children, or is unable to support himself/herself for other reasons. 

In most cases these days, spousal support is “rehabilitative” in nature, and may last for only what the judge determines is a reasonable amount of time for the spouse receiving support to get on his or her feet. 

Q: Can I go back to my maiden name?

A:  Yes, but let your attorney know ahead of time so he or she can make the request in the early pleadings to avoid the time and expense of amending them later. 

The name change will then be part of the final Divorce Decree, which can be used to change your social security card and driver’s license.  

Next time in the series

Watch for part IV of (Almost) Everything You Ever Wanted to Know About Divorce: Child Custody and Support Must-Have Info

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.