Nebraska Marital Property

Note: This summary is not intended to be an all inclusive discussion of the law of separation agreements in Nebraska, but does include basic and other provisions.

General Summary:

To promote the amicable settlement of disputes between the parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written property settlement agreement containing provisions for the maintenance of either of them, the disposition of any property owned by either of them, and the support and custody of minor children.

The terms of such an agreement, except for terms providing for the support and custody of minor children, are binding on the court unless it finds the agreement is unconscionable.

While agreements for child custody and support are not "binding" on the court, as are those involving matters other than child custody and support, even the latter are subject to independent court scrutiny and a finding of conscionability is a prerequisite to their binding effect.

Statutes:

Nebraska Revised Statutes

Title 42

Husband and Wife

Property settlements; effect; enforcement; modification:

(1) To promote the amicable settlement of disputes between the parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written property settlement agreement containing provisions for the maintenance of either of them, the disposition of any property owned by either of them, and the support and custody of minor children.

(2) In a proceeding for dissolution of marriage or for legal separation, the terms of the agreement, except terms providing for the support and custody of minor children, shall be binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.

(3) If the court finds the agreement unconscionable, the court may request the parties to submit a revised agreement or the court may make orders for the disposition of property, support, and maintenance.

(4) If the court finds that the agreement is not unconscionable as to support, maintenance, and property:

(a) Unless the agreement provides to the contrary, its terms may be set forth in the decree of dissolution or legal separation and the parties shall be ordered to perform them; or

(b) if the agreement provides that its terms shall not be set forth in the decree, the decree shall identify the agreement and shall state that the court has found the terms not unconscionable, and the parties shall be ordered to perform them.

(5) Terms of the agreement set forth in the decree may be enforced by all remedies available for the enforcement of a judgment, including contempt.

(6) Alimony may be ordered in addition to a property settlement award.

(7) Except for terms concerning the custody or support of minor children, the decree may expressly preclude or limit modification of terms set forth in the decree.

(8) If the parties fail to agree upon a property settlement which the court finds to be conscionable, the court shall order an equitable division of the marital estate. The court shall include as part of the marital estate, for purposes of the division of property at the time of dissolution, any pension plans, retirement plans, annuities, and other deferred compensation benefits owned by either party, whether vested or not vested. Section 42-366.

Case Law:

To promote the amicable settlement of disputes between parties to a dissolution action, the parties may enter into a written "property settlement agreement" containing provisions for the maintenance of either of them, the disposition of any property owned by either of them, and the support and custody of minor children." Neb. Rev. Stat. § 42-366(1) (Reissue 1993). The terms of such an agreement, except for terms providing for the support and custody of minor children, are binding on the court unless it finds the agreement is unconscionable. § 42-366(2).

In reviewing a property settlement agreement entered into by the parties, the court is required not to regard the agreement lightly but, rather, is required to carefully scrutinize the agreement in order to be sure that neither party takes an unconscionable advantage over the other through fraud. Colson v. Colson, 215 Neb. 452, 454-55, 339 N.W.2d 280, 281-82 (1983).

While agreements for child custody and support are not "binding" on the court, as are those involving matters other than child custody and support, even the latter are subject to independent court scrutiny and a finding of conscionability is a prerequisite to their binding effect. Zerr v. Zerr, 7 Neb. App. 885 (1998) 586 N.W.2d 465.

It is true that where a property settlement is voluntarily executed and is approved by the court and incorporated into a divorce decree from which no appeal is taken, the decree will ordinarily not thereafter be vacated or modified as to such property provisions in the absence of fraud or gross inequity. Pascale v. Pascale, 229 Neb. 49, 424 N.W.2d 890 (1988); Robbins v. Robbins, 3 Neb. App. 953, 536 N.W.2d 77 (1995). However, this rule of law applies to the property dispositions therein, not matters concerning children. Under Nebraska law, a decree in a divorce case, insofar as minor children are concerned, is never final in the sense that it cannot be changed. Wulff v. Wulff, 243 Neb. 616, 619, 500 N.W.2d 845, 849 (1993).

Where a party to a divorce action, represented by counsel, voluntarily executes a property settlement agreement which is approved by the court and incorporated in a divorce decree from which no appeal is taken ordinarily the decree will not be vacated or modified as to property provisions in absence of fraud or gross inequity. Klabunde v. Klabunde, 194 Neb. 681, 234 N.W.2d 837 (1975).