What is the difference between legal separation and divorce?

Nebraska law recognizes two methods of ending a traditional marriage — one is dissolution of marriage or divorce, and the other is legal separation.  The chosen method depends on a number of factors, such as the religious beliefs of the couple, financial or personal reasons, whether residency requirements have been satisfied for a divorce, or what the parties long-term intentions are with the marriage.

If a court orders a legal separation in Nebraska, it is the functional equivalent of divorce, except the marriage itself is not formally dissolved.  A decree of legal separation would address matters such as division of property (assets and debts), child custody and visitation, child support, and potentially spousal support or “spousal maintenance.”  Sometimes this is the permanent outcome intended by parties due to religious or philosophical reasons.

A legal separation in Nebraska can also be a temporary step on the path to a formal dissolution of the marriage once residency requirements are met.  If the parties have not resided in Nebraska long enough, the lawyer may filed a petition for legal separation.  A pending court case seeking legal separation in Nebraska can be modified later to request that the court dissolve the marriage.

When is legal separation a trial separation compared to a permanent separation?

Understandably, people can be confused by what it means to be separated.  In Nebraska, though, there is only one type of separation recognized by the statutes and case law, and that is a permanent legal separation.  However, it is possible for married couples to explore intermediate steps prior to having a legal separation decreed by a  Nebraska court.  There is a key distinction though, in that the parties rights over property and children are not affected until a legal separation is ordered by the judge.  It is important to understand when property is marital or joint property as opposed to individual or separate property.

Informal trial separation.  A trial separation generally refers to a situation when a spouses choose to live apart for a trial period or test period, in order to help them decide whether or not to divorce or permanently separate.  Because the marriage is not legally impacted, generally all of the property and income they accumulate and debts that they incur are considered marital property during a trial separation.  Court orders regarding financial matters of child custody and visitation are not possible for a trial separation.

Permanent legal separation. When spouses choose to permanently break up, they can opt to ask a court for a permanent legal separation or a divorce.  Usually all assets received and most debts incurred after permanent separation are the separate property or responsibility of the spouse incurring them. However, debts that are incurred after physical separation and before divorce are usually joint debts if they are incurred for certain “marital necessities,” such as maintaining the marital home or providing for children.  Consult with an experienced family law attorney before making these important decisions.

In a legal proceeding seeking a legal separation, the money awarded for support of the spouse and children may be referred to as “separate maintenance” rather than alimony and child support.  A lawyer can filed a motion for temporary relief requesting a temporary order of separate maintenance.   The ultimate issues to be decided by the court in a legal separation case are very similar to a divorce case, in which the trial court has the following authority:

When dissolution of a marriage is decreed, the court may order payment of such alimony by one party to the other and division of property as may be reasonable, having regard for the circumstances of the parties, duration of the marriage, a history of the contributions to the marriage by each party, including contributions to the care and education of the children, and interruption of personal careers or educational opportunities, and the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of such party.

Neb. Rev. Stat. § 42-365.

legal separation v. divorce

Is a court hearing required for a decree of legal separation in Nebraska?

In 2012, the Nebraska Legislature passed a law allowing for legal separation to be decreed by a Nebraska trial court without a hearing when:
(a) Both parties waive the requirement of the hearing and the court has sufficient basis to make a finding that it has subject matter jurisdiction over the legal separation proceeding and personal jurisdiction over both parties; and
(b) Both parties have certified in writing that they shall thereafter live separate and apart, both parties have certified that they have made every reasonable effort to effect reconciliation, all documents required by the court and by statute have been filed, and the parties have entered into a written agreement, signed by both parties under oath, resolving all issues presented by the pleadings in their legal separation proceeding.

Neb. Rev. Stat. § 42-361.01.

Family law attorneys can provide advice about whether legal separation or divorce is appropriate

Are you contemplating legal separation?  Having the advice of an experienced Nebraska family law attorney can help you make these important decisions.  Modern Law Firm is a Nebraska law firm with offices in west Omaha, NE, and has a legal separation lawyer available to assist.  Call toll-free 1-888-934-0198 or schedule online now a free meet and greet or a formal consultation with an Omaha divorce lawyer now.

Our Omaha lawyer is available to assist with family law matters in  Omaha, Elkhorn, Bennington, Gretna, La Vista, Papillion, Ralston, Bellevue, Fremont, Blair and surrounding communities in Douglas County, Sarpy County, Dodge County, and Washington County.  Call 1-888-934-0198 to see if we are available in your community.


Ben Thompson
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