2023 Nebraska Revised Statutes › Chapter 42 - Households and Families › 42-365 - Decree; alimony; division of property; criteria; modification; revocation; termination.

42-365.
Decree; alimony; division of property; criteria; modification; revocation; termination.
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. Reasonable security for payment may be required by the court. A proceeding to modify or revoke an order for alimony for good cause shall be commenced by filing a complaint to modify. Service of process and other procedure shall comply with the requirements for a dissolution action. Amounts accrued prior to the date of filing of the complaint to modify may not be modified or revoked. A decree may not be modified to award alimony if alimony was not allowed in the original decree dissolving a marriage. A decree may not be modified to award additional alimony if the entire amount of alimony allowed in the original decree had accrued before the date of filing of the complaint to modify. Except as otherwise agreed by the parties in writing or by order of the court, alimony orders shall terminate upon the death of either party or the remarriage of the recipient.
While the criteria for reaching a reasonable division of property and a reasonable award of alimony may overlap, the two serve different purposes and are to be considered separately. The purpose of a property division is to distribute the marital assets equitably between the parties. The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic circumstances and the other criteria enumerated in this section make it appropriate.
Source
Laws 1972, LB 820, § 19;
Laws 1974, LB 1015, § 5;
Laws 1980, LB 622, § 1;
Laws 2004, LB 1207, § 28.
Annotations
1. Generally
2. Equitable property division
3. Marital property / separate property
4. Debts
5. Alimony award
6. Modification or revocation
7. Specific considerations
8. Miscellaneous
1. Generally
In considering the specific criteria of this section concerning an award of alimony, a court's polestar must be fairness and reasonableness as determined by the facts of each case. Alimony should not be used to equalize the incomes of the parties or to punish one of the parties. Alimony may be used to assist the other party during a reasonable time to bridge that period of unavailability for employment or during that period to get proper training for employment. In awarding alimony, a court should consider, in addition to the specific criteria listed in this section, the income and earning capacity of each party as well as the general equities of each situation. In entering a decree awarding alimony, the court may take into account all of the property owned by the parties at the time of entering the decree, whether accumulated by their joint efforts or acquired by inheritance, and make such award as is proper under all the circumstances disclosed by the record. Bauerle v. Bauerle, 263 Neb. 881, 644 N.W.2d 128 (2002).
The ultimate test for determining the appropriateness of a division of property is reasonableness as determined by the facts of each case. Carter v. Carter, 261 Neb. 881, 626 N.W.2d 576 (2001).
The debts of the parties should be considered in making a property division. Property division is not subject to a rigid mathematical formula, but, rather, turns upon the facts and circumstances of each case. The ultimate test for determining an appropriate division of marital property is one of reasonableness. In determining whether alimony should be awarded, in what amount, and over what period the ultimate criterion is one of reasonableness. Regarding property division, when the marriage is of long duration and the parties are parents of all the children, the "one-third to one-half" rule is of particular significance. Preston v. Preston, 241 Neb. 181, 486 N.W.2d 902 (1992).
In determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criterion is one of reasonableness. Stuczynski v. Stuczynski, 238 Neb. 368, 471 N.W.2d 122 (1991); Patton v. Patton, 20 Neb. App. 51, 818 N.W.2d 624 (2012).
A division of property and the awarding of alimony are not subject to a precise mathematical formula. Rather, an appropriate division of marital property and amount of alimony must turn on reasonableness and the circumstances of each particular case in the light of the factors set forth in this section. Kimbrough v. Kimbrough, 228 Neb. 358, 422 N.W.2d 556 (1988).
The ultimate test for the division of property as well as an award of alimony is reasonableness as determined by the facts of each case. Maricle v. Maricle, 221 Neb. 552, 378 N.W.2d 855 (1985).
The division of property in a dissolution case is based on equitable principles, and its purpose is to divide the marital assets equitably. Black v. Black, 221 Neb. 533, 378 N.W.2d 849 (1985).
Alimony is not awarded as a reward to the receiving spouse or as punishment of the spouse against whom it is charged. It is an effort, insofar as is reasonably possible, to rectify the frequent economic imbalance in the earning power and standard of living of the divorced husband and wife. Its continuation is not dependent on the good conduct of either spouse. Else v. Else, 219 Neb. 878, 367 N.W.2d 701 (1985).
The ultimate criterion in determining alimony is one of reasonableness. Pittman v. Pittman, 216 Neb. 746, 345 N.W.2d 332 (1984); Baird v. Baird, 196 Neb. 124, 241 N.W.2d 543 (1976); Mathias v. Mathias, 194 Neb. 598, 234 N.W.2d 212 (1975); Magruder v. Magruder, 190 Neb. 573, 209 N.W.2d 585 (1973).
In determining what amount of alimony is paid over what period of time, the ultimate criterion is reasonableness, and the Supreme Court is not inclined to disturb the trial court's award unless it is patently unfair on the record. Johnson v. Johnson, 209 Neb. 317, 307 N.W.2d 783 (1981).
There is no mathematical formula by which awards of alimony or division of property in an action for dissolution of marriage can be precisely determined. They are to be determined by the facts of each case and the court will consider all pertinent facts in reaching an award that is just and equitable. Cole v. Cole, 208 Neb. 562, 304 N.W.2d 398 (1981).
The award of alimony and the division of property are determined by the circumstances of the parties at the time of the dissolution of the marriage. Amen v. Amen, 207 Neb. 694, 301 N.W.2d 74 (1981).
The fixing of alimony or distribution of property rests in the sound discretion of the district court and in the absence of an abuse of discretion will not be disturbed on appeal. Lockwood v. Lockwood, 205 Neb. 818, 290 N.W.2d 636 (1980).
The criteria to be used in determining the amount to be awarded in a property settlement is what appears to be fair and equitable between the parties under the circumstances present in the case. Steele v. Steele, 201 Neb. 549, 270 N.W.2d 903 (1978).
In determining an award of alimony, the trial court must consider the circumstances of the parties, the duration of the marriage, and the ability of the supported party to engage in gainful employment. Gregg v. Gregg, 193 Neb. 811, 229 N.W.2d 546 (1975); Yelkin v. Yelkin, 193 Neb. 789, 229 N.W.2d 59 (1975).
Upon the dissolution of a marriage, the court may order the payment of such alimony by one party to the other as may be reasonable under the circumstances of the parties. Walker v. Walker, 193 Neb. 540, 227 N.W.2d 878 (1975).
Division of property and award of alimony in a divorce action are to be determined by all pertinent facts in each case. Bliven v. Bliven, 190 Neb. 492, 209 N.W.2d 168 (1973).
Having regard for circumstances in each case, court may order payment of such alimony by one party to the other as may be reasonable. Albrecht v. Albrecht, 190 Neb. 392, 208 N.W.2d 669 (1973); Corn v. Corn, 190 Neb. 383, 208 N.W.2d 678 (1973).
In addition to the specific criteria listed in this section, a court should consider the income and earning capacity of each party and the general equities of the situation. Nelson v. Richardson-Nelson, 30 Neb. App. 15, 964 N.W.2d 463 (2021).
In addition to the specific criteria listed in this section, in dividing property and considering alimony upon a dissolution of marriage, a court is to consider the income and earning capacity of each party, as well as the general equities of each situation. Patton v. Patton, 20 Neb. App. 51, 818 N.W.2d 624 (2012); Titus v. Titus, 19 Neb. App. 751, 811 N.W.2d 318 (2012); Grams v. Grams, 9 Neb. App. 994, 624 N.W.2d 42 (2001).
The purpose of property division is to equitably distribute the marital assets between the parties, and the polestar for such distribution is fairness and reasonableness as determined by the facts of each case. Shuck v. Shuck, 18 Neb. App. 867, 806 N.W.2d 580 (2011).
The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic circumstances and the other criteria enumerated in this section make it appropriate. Kramer v. Kramer, 1 Neb. App. 641, 510 N.W.2d 351 (1993).
2. Equitable property division
A district court need not choose one single date to value the entire marital estate, so long as the valuation date rationally relates to the property being valued. Rohde v. Rohde, 303 Neb. 85, 927 N.W.2d 37 (2019).
Equitable property division is a three-step process. The first step is to classify the parties’ property as marital or nonmarital. The second step is to value the marital assets and liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties in accordance with the principles contained in this section. Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017); Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004); Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004); Patton v. Patton, 20 Neb. App. 51, 818 N.W.2d 624 (2012); Sughroue v. Sughroue, 19 Neb. App. 912, 815 N.W.2d 210 (2012); Ging v. Ging, 18 Neb. App. 145, 775 N.W.2d 479 (2009).
The purpose of a property division is to distribute the marital assets equitably between the parties. Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004); Ging v. Ging, 18 Neb. App. 145, 775 N.W.2d 479 (2009).
The purpose of a property division is to distribute the marital assets equitably between the parties. Although the division of property is not subject to a precise mathematical formula, the general rule is to award a spouse one-third to one-half of the marital estate, the polestar being fairness and reasonableness as determined by the facts of each case. Equitable property division under this section is a three-step process. The first step is to classify the parties' property as marital or nonmarital. The second step is to value the marital assets and marital liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties in accordance with the principles contained in this section. Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002).
Equitable property division under this section is a three-step process. The first step is to classify the parties' property as marital or nonmarital. The second step is to value the marital assets and marital liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties in accordance with the principles contained in this section. Heald v. Heald, 259 Neb. 604, 611 N.W.2d 598 (2000).
A division of property is not subject to a precise mathematical formula. Rather, an appropriate division of marital property must turn on reasonableness and the circumstances of each particular case in the light of the factors set forth in this section. Keim v. Keim, 228 Neb. 684, 424 N.W.2d 112 (1988); Sullivan v. Sullivan, 223 Neb. 273, 388 N.W.2d 516 (1986).
How property owned at marriage and acquired by gift or inheritance will be considered in determining division of property or award of alimony must depend upon the facts of the particular case and the equities involved. Lord v. Lord, 213 Neb. 557, 330 N.W.2d 492 (1983).
The equitable division of property is a three-step process: (1) classify the parties' property as marital or nonmarital, setting aside the nonmarital property to the party who brought that property to the marriage; (2) value the marital assets and marital liabilities of the parties; and (3) calculate and divide the net marital estate between the parties in accordance with the principles contained in this section. Cook v. Cook, 26 Neb. App. 137, 918 N.W.2d 1 (2018).
3. Marital property / separate property
A party's separate property, while not subject to division in a property settlement, may properly be taken into account when determining alimony. Ainslie v. Ainslie, 249 Neb. 656, 545 N.W.2d 90 (1996).
It was reasonable for the trial court to exclude from the marital property subject to division, property held jointly by the husband and his sister for which there was no evidence of any contribution by the husband and property held jointly by the husband and the parties' son when the evidence showed that the property was placed in joint ownership in order to provide for son's education and future needs. Witcig v. Witcig, 206 Neb. 307, 292 N.W.2d 788 (1980).
Any given property can constitute a mixture of marital and nonmarital interests; a portion of an asset can be marital property while another portion can be separate property. Ramsey v. Ramsey, 29 Neb. App. 688, 958 N.W.2d 447 (2021).
Generally, all property accumulated and acquired by either spouse during a marriage is part of the marital estate. Exceptions include property that a spouse acquired before the marriage, or by gift or inheritance. Ramsey v. Ramsey, 29 Neb. App. 688, 958 N.W.2d 447 (2021).
Separate property becomes marital property by commingling if it is inextricably mixed with marital property or with the separate property of the other spouse. But if the separate property remains segregated or is traceable into its product, commingling does not occur. The burden of proof rests with the party claiming that property is nonmarital. Ramsey v. Ramsey, 29 Neb. App. 688, 958 N.W.2d 447 (2021).
A workers' compensation award is marital property to the extent it recompenses for the couple's loss of income during the marriage. To the extent that it compensates an employee for loss of premarriage or postdivorce earnings, it is that person's separate property. Gibson-Voss v. Voss, 4 Neb. App. 236, 541 N.W.2d 74 (1995).
4. Debts
The debts of the parties should be considered in making a property division pursuant to a divorce. While income tax liability incurred during the marriage should generally be treated as marital debt, an innocent spouse who filed separate tax returns and paid taxes in a timely fashion should not be forced to share in the statutory penalties for the late filings of a dilatory spouse. Carter v. Carter, 261 Neb. 881, 626 N.W.2d 576 (2001).
Debts, like property, ought to also be considered in dividing marital property upon dissolution. Ramsey v. Ramsey, 29 Neb. App. 688, 958 N.W.2d 447 (2021).
When one party's nonmarital debt is repaid with marital funds, the value of the debt repayments ought to reduce that party's property award upon dissolution. Ramsey v. Ramsey, 29 Neb. App. 688, 958 N.W.2d 447 (2021).
A marital debt is one incurred during the marriage and before the date of separation by either spouse or both spouses for the joint benefit of the parties. McGuire v. McGuire, 11 Neb. App. 433, 652 N.W.2d 293 (2002).
5. Alimony award
An alimony award which drives an obligor's net income below the basic subsistence limitation of Neb. Ct. R. section 4-218 of the Nebraska Child Support Guidelines is presumptively an abuse of judicial discretion unless the court specifically finds that conformity with section 4-218 would work an "unjust or inappropriate" result in that particular case. Gress v. Gress, 274 Neb. 686, 743 N.W.2d 67 (2007).
Any alimony award included in a decree entered on or after July 1, 2004, will be governed by the language in this section unless the decree or a written agreement of the parties includes explicit language stating that the death of either party and/or remarriage of the alimony recipient shall not terminate the alimony order. Holm v. Holm, 267 Neb. 867, 678 N.W.2d 499 (2004).
In determining whether alimony should be awarded, the ultimate criterion is one of reasonableness, and the trial court should consider the enumerated factors in this section. Thiltges v. Thiltges, 247 Neb. 371, 527 N.W.2d 853 (1995).
When considering an award of alimony, the need for maintenance is not precluded by a baseline of income or level of employment potential. The ultimate test for determining correctness in the amount of alimony is reasonableness. In awarding alimony, a court should consider the income and earning capacity of each party as well as the general equities of each situation. Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994).
When determining whether to award alimony, a court should consider what effect, if any, the marriage had on the spouses' ability to secure gainful employment in the future and the spouses' earning capacity. When a spouse sacrifices employment seniority for the sake of a marriage, a court may consider that loss of seniority as favoring an award of alimony. Reichert v. Reichert, 246 Neb. 31, 516 N.W.2d 600 (1994).
Alimony is proper when one spouse has earning potential far exceeding the other, who must receive further education or training to engage in gainful employment. Druba v. Druba, 238 Neb. 279, 470 N.W.2d 176 (1991).
Alimony is not to be used simply to equalize the income of the parties or to punish one of the parties; it may be used to assist the other party during a reasonable time to bridge that period of unavailability for employment or during that period to get proper training for employment. Murrell v. Murrell, 232 Neb. 247, 440 N.W.2d 237 (1989).
The ultimate test in determining correctness in the amount of alimony awarded as well as the appropriateness of the division of property is reasonableness as determined by the facts of each case. Busekist v. Busekist, 224 Neb. 510, 398 N.W.2d 722 (1987).
The test for the award of alimony is one of reasonableness as determined by the facts of each case. Ray v. Ray, 222 Neb. 324, 383 N.W.2d 752 (1986).
After looking at the overall circumstances of the parties, the court should attempt, if possible, to provide for the award of alimony for such period of time and under such conditions as would minimize any substantial and unnecessary disruption in the lives of the parties occasioned by reason of the dissolution of the marriage. Pyke v. Pyke, 212 Neb. 114, 321 N.W.2d 906 (1982).
Alimony awards in gross are not excluded from the workings of this section. A provision in a court order which states that certain alimony payments shall be made "until the total alimony award. . . is paid in full" is not an order providing "otherwise." Kingery v. Kingery, 211 Neb. 795, 320 N.W.2d 441 (1982).
Allowances of alimony in the amount of ten thousand dollars annually plus child support of four hundred dollars per month, which would require approximately seventy-five percent of former husband's present net income, were beyond the reasonable reach and capacity of former husband; and considering property division made by the trial court and the circumstances of the parties, such allowances were excessive and represented an abuse of discretion. Petersen v. Petersen, 208 Neb. 1, 301 N.W.2d 592 (1981).
Alimony should not be used to equalize the incomes of the parties or to punish one of the parties. Patton v. Patton, 20 Neb. App. 51, 818 N.W.2d 624 (2012).
Disparity in income or potential income may partially justify an award of alimony. Patton v. Patton, 20 Neb. App. 51, 818 N.W.2d 624 (2012).
Factors which should be considered by a court in determining alimony include: (1) the circumstances of the parties; (2) the duration of the marriage; (3) the history of contributions to the marriage, including contributions to the care and education of the children, and interruption of personal careers or educational opportunities; and (4) the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of each party. Zoubenko v. Zoubenko, 19 Neb. App. 582, 813 N.W.2d 506 (2012).
The criteria listed in this statute are not an exhaustive list, and the income and earning capacity of each party as well as the general equities of each situation must be considered. Zoubenko v. Zoubenko, 19 Neb. App. 582, 813 N.W.2d 506 (2012).
Although disparity in income or potential income may partially justify an award of alimony, it is error to award alimony under this section if the sole reason for the award of alimony is a disparity in the parties' incomes or potential incomes. Kosiske v. Kosiske, 8 Neb. App. 694, 600 N.W.2d 840 (1999).
6. Modification or revocation
Where the parties have not expressly precluded or limited modification of alimony pursuant to section 42-366(7), an alimony provision that was agreed to by the parties as part of a property settlement agreement may later be modified in accordance with this section. Grothen v. Grothen, 308 Neb. 28, 952 N.W.2d 650 (2020).
In an action to modify a decree of dissolution, it is the decree that was affirmed as modified, from the time it was originally entered, that provides the appropriate frame of reference for the subsequent application to modify. Finney v. Finney, 273 Neb. 436, 730 N.W.2d 351 (2007).
To determine whether there has been a material and substantial change in circumstances warranting modification of a divorce decree, a trial court should compare the financial circumstances of the parties at the time of the divorce decree, or last modification of the decree, with their circumstances at the time the modification at issue was sought, and an intervening appellate decision has no bearing on the analysis. Finney v. Finney, 273 Neb. 436, 730 N.W.2d 351 (2007).
A petition for the modification or termination of alimony shall be denied if the change in financial condition is due to fault or voluntary wastage or dissipation of one's talents and assets. Pope v. Pope, 251 Neb. 773, 559 N.W.2d 192 (1997).
A tax dependency exemption is nearly identical to an award of child support or alimony and is thus capable of being modified as an order of support. Hall v. Hall, 238 Neb. 686, 472 N.W.2d 217 (1991).
An increase in income is a circumstance that may be considered in determining whether alimony should be modified. Northwall v. Northwall, 238 Neb. 76, 469 N.W.2d 136 (1991).
In a proceeding to modify an alimony award, that matter is initially entrusted to the sound discretion of the trial judge, which matter, on appeal, will be reviewed de novo on the record and affirmed in the absence of an abuse of the trial judge's discretion. Kelly v. Kelly, 220 Neb. 441, 370 N.W.2d 161 (1985).
Good cause means a material and substantial change in circumstances and depends upon the circumstances of each case. Creager v. Creager, 219 Neb. 760, 366 N.W.2d 414 (1985).
Good cause for altering alimony provisions in a divorce decree is demonstrated by a material and substantial change of circumstances. An alimony recipient's obtaining employment after the date of the decree is a circumstance that permits the situation of the parties to be reexamined. In dissolution of marriage cases one may in good faith make an occupational change even though that may reduce his ability to meet his financial obligations. Cooper v. Cooper, 219 Neb. 64, 361 N.W.2d 202 (1985).
Material change in circumstances in reference to modification of child support is analogous to modification of alimony for good cause. Morisch v. Morisch, 218 Neb. 412, 355 N.W.2d 784 (1984).
A material change in circumstances, not within the reasonable contemplation of the parties at the time of the alimony award, and not accomplished by the mere passage of time, may constitute good cause to justify modification of the award. Sholl v. Sholl, 216 Neb. 289, 343 N.W.2d 742 (1984).
Where parties recognize that child support payments will terminate when the children reach majority, such termination is not such a change in circumstances as to modify an alimony award. Sloss v. Sloss, 212 Neb. 610, 324 N.W.2d 663 (1982).
An unqualified allowance of alimony in gross made before July 6, 1972, is not subject to modification. Watley v. Watley, 208 Neb. 155, 302 N.W.2d 690 (1981); Bryant v. Bryant, 191 Neb. 539, 216 N.W.2d 162 (1974); Karrer v. Karrer, 190 Neb. 610, 211 N.W.2d 116 (1973).
Subject to section 42-365, R.R.S.1943, Reissue 1978, and section 42-364, R.R.S.1943, Reissue 1974, amount of support can be modified after the decree has been entered. State v. Easley, 207 Neb. 443, 299 N.W.2d 439 (1980).
Based on the facts of this case, the wife is entitled to one-half of the value of the property acquired during the twenty-seven-year marriage and the decree is modified accordingly. Chrisp v. Chrisp, 207 Neb. 348, 299 N.W.2d 162 (1980).
Alimony provisions may be modified, even if based upon property settlement agreements, unless the parties or the court provide otherwise in writing. Euler v. Euler, 207 Neb. 4, 295 N.W.2d 397 (1980).
The phrase "good cause" depends upon circumstances of individual case, and finding of its existence lies largely in discretion of officer or court to which decision is committed. Chamberlin v. Chamberlin, 206 Neb. 808, 295 N.W.2d 391 (1980).
Where the only changed circumstances are an increase in the payor spouse's gross income and a relief from debts through bankruptcy, the payor's petition to reduce alimony payments was properly denied. Anderson v. Anderson, 206 Neb. 655, 294 N.W.2d 372 (1980).
Where the decree expressly precludes modification, the award is such a definite and final adjustment of mutual rights and obligations as to be capable of a present vesting and to constitute an absolute judgment. Van Pelt v. Van Pelt, 206 Neb. 350, 292 N.W.2d 917 (1980).
Property distributions which are punitive in nature may be subject to modification. Falcone v. Falcone, 204 Neb. 800, 285 N.W.2d 694 (1979).
Remarriage of a party will not terminate alimony payments if there is a written agreement between the parties or a court's decree which provides a specific amount of alimony to be paid for a specific time with termination only on the occurrence of the specific event set out in the agreement or decree and otherwise not subject to modification or revision. Watters v. Foreman, 204 Neb. 670, 284 N.W.2d 850 (1979).
An alimony award may be modified if it appears the court abused its discretion in considering the circumstances of the parties and their relative earning capacities. Jenks v. Jenks, 200 Neb. 298, 263 N.W.2d 469 (1978).
The court did not err in ordering alimony should terminate upon death of either party or remarriage of the wife. Van Bloom v. Van Bloom, 196 Neb. 792, 246 N.W.2d 588 (1976).
Orders for alimony may be modified for good cause shown but nunc pro tunc decree entered without notice is a nullity. Howard v. Howard, 196 Neb. 351, 242 N.W.2d 884 (1976).
Unless amounts have accrued prior to date of service on a petition to modify, orders for alimony may be modified or revoked for good cause shown, but when alimony is not allowed in the original decree dissolving a marriage, such decree may not be modified to award alimony. Haug v. Haug, 195 Neb. 377, 238 N.W.2d 455 (1976).
Alimony orders may be modified or revoked for good cause shown. Good cause means a material and substantial change in circumstances and depends on the circumstances of each case. Metcalf v. Metcalf, 17 Neb. App. 138, 757 N.W.2d 124 (2008).
Because alimony may be modified only for good cause shown, a petition for modification will be denied if a change in financial condition is due to fault or voluntary wastage or dissipation of one's talents and assets. Lambert v. Lambert, 9 Neb. App. 661, 617 N.W.2d 645 (2000).
Action to modify alimony obligation must satisfy the procedural requirements of section 42-352. Osborn v. Osborn, 4 Neb. App. 802, 550 N.W.2d 58 (1996).
7. Specific considerations
Under this section, a trial court may adjust its equitable division of the marital estate to account for the tax consequences of the parties' filing of separate income tax returns. If a party seeking an equitable adjustment presents the court with the tax disadvantages of filing separate returns, a trial court may consider whether the other party unreasonably refused to file a joint return. Evidence of a tax disadvantage would normally include the parties' calculated joint and separate returns for comparison. Bock v. Dalbey, 283 Neb. 994, 815 N.W.2d 530 (2012).
No matter which party has the larger pension, the value acquired during the marriage should be divided relatively equally, and it would be incongruous to reduce one party's equitable share simply because one has elected to retire early, while the other continues to work. Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006).
Serious health problems experienced by either party may support an award of alimony which does not terminate according to the default provisions of this section. An alimony recipient's inability to work or improve his or her earning capacity is a circumstance which may support an award of alimony which does not terminate according to the default provisions of this section. An obligor spouse's tenuous financial condition or unique economic circumstances may support an award of alimony which does not terminate according to the default provisions of this section. The specific criteria in this section, such as duration of the marriage, contributions to the marriage, and contributions to the care and education of the children, are also circumstances which may support an award of alimony which does not terminate according to the default provisions of this section. Bauerle v. Bauerle, 263 Neb. 881, 644 N.W.2d 128 (2002).
The attainment by one spouse of a professional degree with aid from the other is one factor a district court may consider in the division of assets and award of alimony in a marital dissolution proceeding. Schaefer v. Schaefer, 263 Neb. 785, 642 N.W.2d 792 (2002).
The division of property and the awarding of alimony in dissolution cases are matters initially entrusted to the discretion of the trial judge. On appeal, such matters will be reviewed de novo on the record and affirmed in the absence of an abuse of discretion. The earning capacity of a spouse operating a business is an element to be considered in determining alimony. Ritz v. Ritz, 229 Neb. 859, 429 N.W.2d 707 (1988).
To be properly within the purview of this section as property divisible and distributable in a dissolution proceeding, goodwill must be a business asset with value independent of the presence or reputation of a particular individual; an asset which may be sold, transferred, conveyed, or pledged. Taylor v. Taylor, 222 Neb. 721, 386 N.W.2d 851 (1986).
The actual earning capacity or ability of a spouse to engage in gainful employment is frequently more important than the profitability of a spouse's business in resolving questions of alimony. Gleason v. Gleason, 218 Neb. 629, 357 N.W.2d 465 (1984).
In making an award of alimony and a division of property the court should not consider the issue of whether the unilateral acts of one party to the marriage led to its irretrievable breakdown. Campbell v. Campbell, 202 Neb. 575, 276 N.W.2d 220 (1979).
Among matters to be considered in making allowance of alimony are the circumstances of the parties, the duration of the marriage, the contributions to the marriage by each party, and the ability of the supported party to engage in gainful employment. Tuttle v. Tuttle, 193 Neb. 397, 227 N.W.2d 27 (1975).
Amount of alimony allowed, considered under rules of this section and circumstances in case, and approved. Casselman v. Casselman, 191 Neb. 138, 214 N.W.2d 278 (1974).
An anomaly or substantial fluctuation in the income of one party should be considered in determining whether alimony should be awarded and in what amount and also in the calculation of child support. It was not error for a trial court to credit a party with the full amount of assets liquidated during the pendency of the divorce, to refuse to consider as debt the unproven balances of certain credit cards, or to opine that certain obligations and awards were in the nature of support and maintenance and therefore nondischargeable in bankruptcy, even though that is a matter properly left to the bankruptcy court. Halouska v. Halouska, 7 Neb. App. 730, 585 N.W.2d 490 (1998).
The fact that property is inherited and therefore excluded from division does not prevent the income it generates from being considered when determining alimony. Ainslie v. Ainslie, 4 Neb. App. 70, 538 N.W.2d 175 (1995).
8. Miscellaneous
The Nebraska Child Support Guidelines exclude alimony between parents from their total monthly income for the purpose of calculating child support obligations for their children. Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018).
A trial court does not have discretion to compel parties seeking marital dissolution to file a joint income tax return. Bock v. Dalbey, 283 Neb. 994, 815 N.W.2d 530 (2012).
The antiassignment clause of the Social Security Act and the Supremacy Clause of the U.S. Constitution prohibit a direct offset to adjust for disproportionate Social Security benefits in the property division of a dissolution decree. Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006).
This section's language with regard to service of process was not repealed by implication as a result of an amendment to section 25-217, which states that an action is commenced on the date the petition is filed with the court. Only those amounts which have not accrued prior to the date of service of process are subject to modification. A decree under which all rights and obligations have accrued is not subject to modification in any respect. Hamilton v. Hamilton, 242 Neb. 687, 496 N.W.2d 507 (1993).
This section gives guidance to the trial court as to how the property of the parties is to be divided and whether alimony is to be awarded. Ruhnke v. Ruhnke, 218 Neb. 355, 355 N.W.2d 339 (1984).
Section 42-365, R.R.S.1943, Reissue 1978, is limited in its application to those situations in which, except for section 42-372, R.R.S.1943, Reissue 1978, the court could not otherwise modify or vacate the decree. Howard v. Howard, 207 Neb. 468, 299 N.W.2d 442 (1980).
Despite the language of section 42-379(3), R.R.S.1943, the provisions of section 42-365, R.R.S.1943, do not apply to awards of alimony in gross entered prior to July 6, 1972. Chamberlin v. Chamberlin, 206 Neb. 808, 295 N.W.2d 391 (1980).
A decree that provides that alimony is not terminable, as permitted by this section, creates an unqualified allowance of alimony in gross which is a definite and final adjustment of rights and obligations between the parties capable of present vesting and constituting an absolute judgment. Torrey v. Torrey, 206 Neb. 485, 293 N.W.2d 402 (1980).
Under the no fault divorce statute neither the granting, denial, or reduction of alimony nor the division of property are to be considered as punitive. Ragains v. Ragains, 204 Neb. 50, 281 N.W.2d 516 (1979).
On appeal, judgment modified to allow wife alimony, in addition to settlement award fixed by trial court. Brown v. Brown, 199 Neb. 394, 259 N.W.2d 24 (1977).
A married person's interest in the marital status is not a property right, the state has plenary powers with regard to it, and Nebraska divorce laws are not unconstitutional. Buchholz v. Buchholz, 197 Neb. 180, 248 N.W.2d 21 (1976).
Rule for allowance of alimony and division of property under 1974 statute quoted and prior decision distinguished. Browers v. Browers, 195 Neb. 743, 240 N.W.2d 585 (1976).
Under this section a court may order payment of alimony by one party to the other having regard for the circumstances. Essex v. Essex, 195 Neb. 385, 238 N.W.2d 235 (1976).
Reasonable security for payment of alimony may be required but such remedy should be invoked in the original decree only under compelling circumstances. Wheeler v. Wheeler, 193 Neb. 615, 228 N.W.2d 594 (1975).
The Supreme Court is not necessarily bound by decision under the former law in determining alimony under the no fault divorce law. Barnes v. Barnes, 192 Neb. 295, 220 N.W.2d 22 (1974).
Under the no fault divorce statute, the father and mother of minor children have an equal and joint right to their custody and control, and while the father has the primary responsibility to support his children, the court has the responsibility of adjusting the equities between the parties. Kockrow v. Kockrow, 191 Neb. 657, 217 N.W.2d 89 (1974).
A forced sale of all the parties' property was held unreasonable where the trial court made no findings to explain its order forcing the sale rather than distributing the property in kind. Kellner v. Kellner, 8 Neb. App. 316, 593 N.W.2d 1 (1999).
Installments of alimony become vested as they accrue, and courts are generally without authority to retroactively cancel or reduce such amounts. Mathis v. Mathis, 4 Neb. App. 307, 542 N.W.2d 711 (1996).