Nebraska Alimony Explained
During the course of a divorce proceeding, you may hear the term "spousal support" used with reference to your final settlement. "Spousal support" is the legal term used for what most people call "alimony." Nebraska favors the terms "spousal support" and "spousal maintenance" over the more commonly heard "alimony." The terms describe the same legal concept even if they each have slightly different meanings.
Alimony payments are not child support. Alimony is paid between 2 adult parties, not between a parent and a child. Child support is paid from the 1st party in a divorce to the 2nd party, but alimony is paid from 1 party to the divorce to the other party. While a court will determine what alimony – spousal support or spousal maintenance – will be paid in 2 adult party divorce cases , a court cannot simply determine how much child support will be paid and the amounts of alimony paid in 2 adult party divorces are not comparable to paying child support for a child.
Nebraska law defines alimony as money one spouse pays to the other during or after a divorce. The money can be broken up into smaller time periods, but the total time period will be determined by the end of the divorce. For example, a spouse may say that they will pay their soon-to-be former spouse $500 per month for 8 months. The former spouse then has the option of taking one lump sum payment of $4,000 or receiving 8 separate payments of $500 per month over the coming 8 months. Meanwhile, in a child support case, the $500 would be paid every month until the child turns of age, finishes high school and graduated, or turns 19.
Who Is Eligible for Alimony in Nebraska?
While Nebraska provides courts with discretion in deciding whether to grant an alimony request, it has not provided any concrete requirements that spouses must meet in order to qualify for support. As a result, many factors are open to judicial interpretation, including the length of the marriage, the ability of the supported spouse to self-support, the financial conditions of the supported and supporting spouses, and the contributions that both spouses made during their relationship.
Courts generally require that spouses have been married for at least 10 years before they can be considered eligible for alimony. Alimony isn’t always awarded, however: If it is determined that the requesting spouse has been sufficiently self-supporting outside the marriage through, for example, education or a strong work history, courts may deny requests for alimony. Financial conditions and circumstances and the assets and obligations of each spouse are also important factors of eligibility. In some cases, spouses may agree to waive their right to spousal support.
Nebraska courts are hesitant to award alimony purely on the basis of fault in the marital relationship, which means that a judge would likely be disinclined to give alimony to one spouse if the other spouse was guilty of domestic violence, drug or alcohol abuse, marital infidelity or another type of misconduct. Financial mismanagement or abuse may also be considered to be valid reasons to award alimony to one spouse.
The Different Types of Alimony
In Nebraska, courts recognize several types of alimony, also known as spousal support, each with its own specific criteria and circumstances for award.
Temporary Alimony: Temporary (pendente lite) alimony is the type of alimony that is in effect from the time of separation to the time the Court enters its final decree of divorce (and for several weeks thereafter). Pending appeal or post-appeal delay time, courts typically continue temporary alimony until all appellate proceedings are resolved. Courts awarding temporary alimony attempt to maintain the economic status quo of the parties until a full and fair hearing can be held for determination of permanent alimony. A temporary award of alimony is generally not modified unless the Court finds a significant change in circumstances.
Rehabilitation Alimony: Rehabilitation alimony is awarded to allow a receiving spouse the time and resources to acquire supplementary education, retraining or development of necessary job skills so that the recipient can achieve economic independence. Rehabilitation alimony is meant to be a bridge to self-sufficiency and typically has a definite term, or limit, on its duration before the recipient is expected to support him or herself.
Permanent Alimony: Permanent alimony is intended to maintain the status quo of the marriage or to provide the payee spouse with the same standard of living enjoyed during the marriage. Courts award permanent alimony only after a finding that a spouse is unable to secure sufficient present or future income from appropriate employment by reason of age, health, disability or absence of skills. This type of alimony is dependent upon the equitable circumstance of the parties and cannot be awarded unless warranted by the situation. Permanent alimony is generally predictable from case to case, and is only awarded when economic and/or psychological barriers preclude reasonable efforts at self-support. A permanent alimony award can be terminated if there is a showing that the circumstances no longer warrant the same.
Because most alimony awards do not fit neatly into one category of classification, it is often the case that courts can consider the award to be any combination of the three types of alimony listed above. As Nebraska courts weigh the factors for granting alimony, including the length of the marriage and the circumstances of the parties, the award of alimony will be different in each case.
How Is the Amount Ordered in Alimony Determined?
Relevant to the determination of alimony is the relative ability of each party to provide for his or her own future and whether either party shows a need for alimony. Courts speak in terms of "the circumstances of the parties" as well as the parties’ conduct during the marriage. They do not place an undue emphasis on any one factor in determining whether alimony is appropriate or in determining the amount of alimony. Rather, they look at the totality of the circumstances.
With respect to the duration of the marriage, the relevant time frame begins with the issuance of the marriage license until the decree is entered. In Nebraska, short-term marriages generally do not warrant alimony. At least one court has said that if the marriage lasted less than seven years, a majority of other courts have ruled there was no justification for alimony. Because there is no precise dividing line between a short-term and a long-term marriage, in the end it will be up to the judge hearing the evidence to make the determination.
Another factor to consider is whether the parties’ marriage was one of short duration with little or no accumulation of money and assets. For example, in one case, the parties had little or no opportunity to acquire property and assets due to their limited means. The Nebraska Supreme Court found that in light of the short duration and lack of commingling the district court did not abuse its discretion in failing to award alimony.
Nebraska courts have also considered the use of marital funds for items such as gambling and excessive gifts to others, including dissolving a marriage by an extramarital relationship. As has been noted by at least one court, marital funds acquired during the marriage should generally be used to benefit the marriage. The improper use of these funds may be a relevant factor in determining whether alimony should be awarded and, if so, in determining the amount.
As in most matters before the court, you can count on the parties’ relative incomes to be a factor in determining whether alimony is warranted and, if so, in determining the amount of the alimony award. The trial court will look at the actual incomes the parties receive from all sources. Poor financial habits are simply no substitute for sufficient income. The court will also consider education, age, health and the burdens imposed by custody of children.
Can Alimony Be Modifed and/or Terminated?
A party seeking to change a spousal support obligation must demonstrate in a material change in circumstances that justifies the relief sought and which occurred after entry of the decree or order being modified. A material change in circumstances must be "substantial, continuing, and probably affecting the recipient spouse’s financial status in an important way." A petitioner is not required to show a change in circumstances analogous to those listed under the uniform parentage act, but such changes may be considered. Additionally, establishing a per se material change in circumstances is not necessary. For instance, (1) a material reduction or increase in one party’s income, the recipient spouse’s cohabitation with a third party, the death of one or both parties, and the retirement of the providing spouse may all constitute a material change in circumstances. As with modification, the burden of showing changed circumstances is upon the party filing the motion , and in the rules and laws used to demonstrate when alimony payments will terminate, the court will use different standards to decide the matter. A particular circumstance will only terminate spousal support if that condition arises. For example, work, retirement, and mortality are three conditions typically articulated in alimony agreements. However, terminations of support as a result of work, retirement, and death are not as simple as they sound. Nebraska courts have held that work designed to supplement a party’s income will not stop alimony payments, especially when he or she has not done so for an "extended period of time" and his or her medical condition will not allow him or her to continue working. In terms of retirement, while any voluntary change of employment would act to terminate spousal support, the paying party can still be required to pay continued support if he or she had already retired, the amount of support was not specified, and the requesting party did not previously rely on the payment as part of their income.
Alimony and Taxes
When it comes to tax considerations, the payment or receipt of alimony has traditionally been a significant factor. Under the federal tax code until 2017, alimony was considered taxable income for the recipient and deductible by the payer. This meant that for the recipient spouse, alimony payments increased taxable income, which likely led to a higher tax bracket and therefore, a higher overall federal tax bill.
On the other hand, the payer spouse, who could deduct alimony payments, often found it beneficial to pay alimony, as they could offset income and may have reduced their overall federal income tax bill. This reciprocal system of tax treatment was the norm for many years.
However, the Tax Cuts and Jobs Act (TCJA) passed in December 2017 introduced new rules putting 2018 as the last year to deduct alimony. Now, the ability to deduct alimony for orders entered after December 31, 2018, is not applicable. The alimony deduction is replaced with no deduction for the payer or tax obligation to the recipient. This also impacts modifications: if a court were to modify a 2018 decree that ordered alimony and the modification took place after December 31, 2018, the new provisions apply to the modification. However, if a court modified alimony after December 31, 2018, the recipient of any existing alimony payments is not required to include the amounts received in income and the former spouse is not entitled to a deduction for alimony payments.
This change in federal law significantly alters the financial landscape for couples who anticipate an existing pre-2019 alimony order, as well as anyone modifying an existing alimony order after December 31, 2018. While present Nebraska law was unaffected by the federal changes, there have been bills introduced in the Nebraska Unicameral in response to those changes.
The TCJA 2017 federal reform legislation made significant changes, and much of the impact remains uncertain and unsettled. We will continue to update this section as the state uncovers further ramifications and guidance.
Nebraska Alimony Assistance and Legal Advice
The implementation of proper legal advice will be availed through the utilization of a family law attorney. Nebraska law pertaining to divorce and the following issues such as alimony, custody and distribution of property are very complicated. When it comes to dividing up a husband and wife’s assets, one person may truly feel that it is not equitable . If the worker in the family possesses a high paying job, there will be many mitigating factors taken into consideration such as whether or not you were a major supporter of the other’s job and how the finances will work for both parties considering the changes. For the other spouse who owns a small business, their greatest fears may deal with their prenuptial agreement and how their business may be negatively impacted financially. The legal assistance of a family law attorney is invaluable in these circumstances.