Dividing Retirement Accounts in Divorce

Transcription

Dividing Retirement Accounts in
Divorce
Philip B. Katz
Koenig | Dunne Divorce Law, PC LLO, Omaha
August 11, 2015
University of Nebraska College of Law, Lincoln
This page intentionally left blank.
Division of Retirement Accounts in Divorce
By: Philip B. Katz of Koenig|Dunne Divorce Law


1
Sources
Nebraska Revised Statutes:
o Spousal Pension Rights Act: § 42-1101 to 42-1113
o Property Settlements: §42-366(8): Retirement Plans are to be included in
the division of the martial estate (p. 8)*1
Nebraska case law:
o Sitz v. Sitz, 257 Neb. 832 (Neb. 2008): Retirement Plans are to be included
in the division the martial estate
o McGuire v. McGuire, 11 Neb.App. 433 ( 2002): 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.
o Koziol v. Koziol, 10 Neb.App. 675 (2001) – Contains discussion of
valuation methodology for defined benefit plans such as pensions
including the “deferred distribution method of valuing wherein the Court
makes no immediate division of the retirement benefits but determines a
percentage share that the non-owning spouse will receive when the
owning spouse retires and commences his/her monthly benefits. Case then
discusses how to correctly determine this future percentage. This
approach is in opposition to the other valuation approach, “the immediate
offset method, wherein the present value of a pension is determined, and
the non-owning spouse is awarded a lump sum in view of that value. The
Immediate offset method requires the use of an expert witness to
determine present value whereas the deferred distribution method does
not.
o Coufal v. Coufal, 291 Neb. 378 (2015): Only the portion of retirement
accounts earned during the marriage is part of the marital estate. The
investment gain on premarital contributions is not an asset of the marital
estate.
o Prior to Coufal, the Court used what is commonly referred to as the
“subtraction method” of recognizing the premarital portion of a defined
contribution retirement account (i.e. – 401k, 403(b, 457, IRA), which
method arguably appears to originate from the case of Rezac v. Rezac, 221
Neb. 516 (1985). Under this approach, an owner spouse is awarded the
balance of his/her account as of the date of marriage but not including
investment gains or losses. The balance of the account would then be
considered the marital portion and divided between the spouses. Coufal
overrules this approach provided you can lay foundation and track the
investment gain through use a financial expert witness.
* Indicates reference is attached to these materials after the outline
1




Social Security Benefits
o The anti-assignment clause of the Social Security Act (SSA) 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 Decree. Webster v. Webster, 271 Neb. 788 (Neb. 2006)
(p. 9)*
Internal Revenue Code (IRC) §414(p)
Employee Retirement Income and Security Act (ERISA) §206(d) - if a
retirement plan falls under ERISA, a Domestic Relations Order is required to
divide the plan between spouses.
QDRO Requirements:
o See Checklist for provisions to include in most QDROs (p. 21)*
o Sample QDRO for division of a 401(k) plan (p. 22)*
o Sample QDRO for division of pension plan (defined benefit) (p. 27)*
Step I. What Type of Benefit/Plan Is It & Does it Require a QDRO?
1. Defined Benefit Plans (i.e. pension plans, retirement plans)
 A plan that pays a monthly fixed determinable benefit at a certain retirement
age.
 The marital benefit is divided pursuant to a Qualified Domestic Relations
Order (QDRO) if it is an ERISA
2. Defined Contribution Plans (i.e. 401(k), 403(b), Savings, Profit Sharing)
 A defined contribution plan defines the contributions while the participant is
employed, but the future value of the benefit is unknown. Owner/ participant
takes distributions of his or her choosing from plan at age of retirement.
 Issues in dividing Defined Contribution Plans:
o Lump sum distributions are taxable if not rolled over into a qualified
plan
o Plan Administrators usually withhold 20% on lump sum distributions
to former spouses/alternative payees
o Exempt from the 10% federal early withdrawal penalty
 The marital benefit is divided pursuant to a Qualified Domestic Relations
Order (QDRO) if it is an ERISA based plan
3. IRA
 Traditional v. Roth IRA: In a traditional IRA withdrawals of pre-tax
contributions and earnings are taxable when distributed. In a Roth IRA, you
contribute post-taxed income and so contributions are withdrawn tax free.
 A QDRO is not required to transfer funds from an IRA account
 Contact the account administrator to receive instructions for facilitating the
transfer. Usually requires a certified copy of the Decree. Rollover can
usually be accomplished via forms provided by the investment house, but also
can be done via an “IRA rollover instruction letter” signed by both parties.
2
4. Railroad Retirement
 Railroad Retirement Annuities
o Replaces Social Security and provides for a monthly annuity based on
age, service, or disability.
 ERISA does not apply under the Railroad Retirement Act
(RRA)
o Tier I benefit: Similar to Social Security Benefits, not divisible
o Tier II benefit: A monthly annuity that is divisible by an Order
Dividing Railroad Retirement Benefits (not QDRO). Note: A separate
order is not required if the appropriate language is incorporated into
the Decree.
o Survivor Annuity: The parties must be married 10 consecutive years
prior to divorce, not currently married, and not entitled to Social
Security benefits on his or her own earning record.
 Receipt of the annuity does not reduce the amount of the
monthly amount of the employee’s annuity during his or her
life.
o Preapproval: The Railroad Retirement Board will preapprove Orders.
Contact information: Office of General Counsel, U.S. Railroad
Retirement Board, 844 North Rush Street, Chicago, IL 60611-2092.
o Resources:
 Sample Order Dividing Railroad Retirement Benefits (p. 32)*
 Attorney’s Guide to the Partition of Railroad Retirement
Annuities (p. 35)*
 Online Resources:
 General information regard retirement, survivor and
disability information:
http://www.rrb.gov/mep/ee/info_ret_surv_dis.asp
 Survivor Annuity Application:
http://www.rrb.gov/forms/PandS/rb17/rb17intro.asp
 Divorced Spouse Annuities Information:
http://www.rrb.gov/forms/PandS/rb30/rb30overview.as
p
 Union Pacific Benefits:
o Besides the RRB annuities, Union Pacific has its own private
retirement benefits, including both defined contribution and defined
benefit plans both of which are governed by ERISA.
o Resources:
 Model QDRO for Union Pacific Defined Contribution Plan (p.
52)*
5. Federal Annuity
 Civil Service Retirement System (CSRS)/Federal Employees Retirement
System (FERS)/Thrift Savings Plans (TSP)
o CSRS is for employees dating 1/1/20-1/1/87. FERS is for employees
post 1/1/87.
3
o FERS have smaller annuity payments as under the CSRS and FERS
also participate in the Thrift Savings Plan.
o CSRS/FERS annuities are divided pursuant to a Court Order
Acceptable for Processing (COAP), not a QDRO
o Former Spouse Survivor Annuity: Must be expressly awarded in the
COAP and must designate responsibility for the costs associated with
providing the survivor benefit.
 Marriage requirement: Former spouse and employee must be
married for 9 months before former spouse is eligible for
Former Spouse Survivor Annuity
 Remarriage requirement: Former spouse cannot remarry before
the age of 55, unless the marriage to the employee lasted 30
years or longer
o Preapproval: Office of Personnel Management will not preapprove the
COAP.
o Former Spouse Responsibility:
 Before benefits can be paid, former spouse must submit a
written request to OPM that includes the former spouse’s full
name, mailing address, a certified copy of the COAP, a signed
statement that the Court Order has not been amended,
superseded or set aside and that he or she is not remarried.
Must also include identifying information concerning the
Employee/Retiree – including his or her full name, date of
birth, civil service annuity (CSA) claim number if retired, and
social security number; and If the employee is not retired, his
or her mailing address.
 Send above information to Office of Personnel Management,
Office of Retirement Programs, Court Ordered Benefit Section,
Post Office Box 17, Washington, DC, 20044-0017.
o Resources:
 Sample COAP for CSRS (p. 58)*
 Sample COAP for FERS (p. 63)*
 A Handbook for Attorneys on Court-ordered Retirement,
Health Benefits and Life Insurance Under CSRS/FERS:
https://www.opm.gov/retirement-services/publicationsforms/pamphlets/ri38-116.pdf
6. Thrift Savings Plans (Military & Fed. Civilian).
 Defined contribution plan with the same savings and tax benefits of a 401(k)
 TSP’s are not subject to ERISA
 Divided pursuant to a “Retirement Benefits Court Order,” not a QDRO
 Type of award: Order can only award a one-time lump sum payment.
 Plan Administrator: TSP Legal Processing Unit, P.O. Box 4390, Fairfax, VA
22038.
 Resources:
o Sample Retirement Benefits Court Order (p. 68)*
4
o Handbook for Attorneys: Court Orders and Powers of Attorneys (p.
70)*
7. Military Retired Pay
 Uniformed Services Former Spouses Protection Act
 Exempt from ERISA, so you do not need to divide via QDRO. Instead you
can include the award directly in the Decree or in a separate Order to Divide
Military Retired Pay
 Eligibility: Service member is eligible for military retired pay award if he or
she is at least 60 years of age and has performed at least 20 years of military
service.
 10/10 Rule: For a division of retired pay to be enforceable by direct payments
from DFAS, the former spouse must be married to the service member for a
period of 10 years during which the member performed at least 10 years of
service. If the 10/10 rule is not met, the Decree must order the service
member to pay the former spouse directly.
 Survivor Benefit Plan: Must be elected in the Decree or Order
o Must elect within 1 year after the date of the divorce
o Resource: SBP Election Statement for Former Spouse (DD-2656-1)
 Resources:
o Attorney’s Guide to Dividing Military Retired Pay (Sample Order
included) (p. 85)*
QDRO Requirements:
 See Checklist for provisions to include in most QDROs (p. 21)*
 Sample QDRO for division of a 401(k) plan (p. 22)*
How to Determine Marital Portion of Benefit for Defined Contribution Plans
 Coverture Fraction:
o The numerator is the number of months Participant worked for the
employer during the period of the marriage, and the denominator is the
Participant’s total number of months employed by employer at specific
valuation date, and then dividing the product by two (2).
 Resources: Koziol v. Koziol, 10 Neb.App. 675 (Neb.App. 2001) (p. 12)*
How to Determine Marital Portion of Benefit for Defined Benefit Plans
 Subtraction Method
 Resources: Rezac v. Rezac, 221 Neb. 561 (Neb. 1985) (p. 19)*
Step-by-Step Process
 Determine what type of plan it is
 Obtain samples/rules from Plan Administrator
 Determine marital portion to be divided
5





Make sure you include all the important division language in the divorce decree
so there is no fight between you and opposing counsel regarding the language to
be used by opposing counsel.
Prepare QDRO and obtain approval from opposing counsel
Submit Order to Plan Administrator for preliminary approval (if possible)
o Avoid entry of an Amended QDRO
Obtain the Court’s approval
Post-entry actions
Practical Considerations & Tips
 Valuation date
o Date of separation, date of filing, date of trial, date of entry of Decree
 Adjustment of the Award for Market Value Gains/Losses
o Include language regarding the market value adjustments attributable to
the award from the valuation date until the funds until the QDRO transfer
is complete
 Freeze account
o Some plans will place a freeze on the participant’s account with a phone
call, letter, or proposed QDRO so as to prevent the Participant from taking
a loan against the plan during the divorce.
 Administrative fees
o Administrators can charge a fee for the review and implementation of
QDROs. Negotiate the division of the fee and include in the QDRO prior
to an administrative review.
 Outstanding loans
o Determine whether award is a dollar amount or percentage of the funds.
o If the award is a specified dollar amount, the QDRO will transfer that
amount regardless of the status of the loan, unless there are not sufficient
funds to cover specified dollar amount.
o If the award is a percentage, the QDRO needs to specify if the award is
based on the value of the account with or without regard to the value of
the loan. (Be careful of your wording here – Plan Administrators vary on
their interpretation of an award being “with or without regard to any loan
balances”. )
 Contributions of participant post Decree & Contributions Pre-decree not yet
included in Plan value
o Clarification that any contributions made by Participant post valuation
date shall be set off to Participant. (You can also include language
awarding ½ of the any contributions made by the employer prior to
valuation date but not yet deposited into the Plan by the employer.)
 Contributions by employer sponsored plans
o Determine when the employer matches the employee’s contributions (i.e.
every pay period, every quarter, every year, etc.)

No confidential information in Orders, must be sent separately
6
o Nebraska does not allow the inclusion of birth dates and Social Security
Numbers in its Orders. Instead, send this information in the cover letter
with the Order enclosed.




Income tax implications
o Lump sum distributions are a taxable event for the alternate payee.
Generally, the Plan Administrator will automatically withhold 20% of the
distribution amount
Pre-tax assets
o If equalizing the marital estate with pre and post-tax assets, consider the
tax implications for the division of pre-tax assets. To equalize the
division of the assets, consider reducing the recipient’s QDRO award by
20%-25% in the proposed distribution chart to take into account the taxes
he or she will pay in the future. Then, the QDRO should be grossed-up,
by backing out the tax reduction factor. Or, you can equalize the values
the pre-tax and post-tax property separately.
Utilization of QDROs for other purposes
o Per IRC 414(p) and ERISA 206(d), an alternate payee is defined as former
spouse, child, or other dependent on Participant
o Can utilize QDRO to collect child support, alimony, or property settlement
payment
Waiver 10% penalty on early distribution from some Defined Contribution
Accounts:
o Per IRS Publication 575 – a recipient of a portion of 401k or 403b account
pursuant to a QDRO at time of divorce can choose to take a distribution at
the time the QDRO is processed and only pay the normal income taxes.
This one of several express exceptions to the 10% penalty on early
distributions. This can be a valuable way for your divorce client to be able
to buy a new house, pay off some bills, or pay your attorney fees!
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
Divorce Law:
Understanding the Basics
Jill Mason
Kinney Law P.C., L.L.O., Omaha
August 11, 2015
University of Nebraska College of Law, Lincoln
7/29/2015
Divorce Law: Understanding the Basics
Jill M. Mason
K INNEY L AW, P . C . , L . L . O .
9 0 0 S o u t h 7 5 th S t r e e t
Omaha, NE
68114
(402) 905-2220
[email protected]
The Initial Consultation
• Potential Client Intake
• To charge or not to charge
• Be prepared for emotional encounters and to answer a wide range of questions
• Gather the facts you will need to determine fees and to proceed with the case
• Information Needed:
• Confidential Information Form
• Vital Statistic Information
• Addresses
1
7/29/2015
Fees
• Flat Fee Agreement
• Retainer Agreement
• Types of Payment
• Costs related to the action
• Filing Fees
• Service of Process
• Separate fees for:
• Contempt Action
• Protection Orders
• QDROs
• Depositions
Where and When to File
• Domestic Relations Actions are governed by Neb. Rev. Stat. Sec. 42-347- 42-381
• The District Court in the county in which one of the parties resides
• Neb. Rev. Stat. Sec. 42-348
• Residency requirement of at least one year
• Children: Comply with Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA, Sec. 43-1226 et. seq.)
2
7/29/2015
Initiating the Action
• Complaint
• Health Insurance
• Children
• Comply with UCCJEA, Sec. 431226 et al.
• Uninsured Medical Expenses
• Nebraska Child Support Guidelines, Sec. 4-215
• Alimony/Spousal Support
• Neb. Rev. Stat. Sec. 42-359, 365
• Child Support
• Neb. Rev. Stat. Sec. 42-364.16
• Day Care Costs
• Nebraska Child Support Guidelines, Sec. 4-214
• Attorney Fees
• Neb Rev. Stat. Sec. 42-351
• Maiden Name Restoration
Personal Service
• Neb. Rev. Stat. Sec. 42-352 and Neb. Rev. Stat. Sec. 25-517.02
• Voluntary Appearance
• Praecipe for service in the same county
• Praecipe for service in a different county
• Service in another state
• Deadlines for perfecting service
3
7/29/2015
Answer and Counter-Complaint
• Answer
• Must file within 30 days of service or risk default
• Motion and Order for Leave to File Answer Out of Time
• Counter-Complaint
• Must comply with UCCJEA requirements
• Can allege dissolution versus legal separation
• Answer to Counter-Complaint
Temporary Hearing
• Review court’s local rules regarding notice and the manner of such hearings
• www.supremecourt.ne.gov/rules
• Make sure client complies with any mediation requirements
• Obtain a hearing date
4
7/29/2015
Temporary Hearing
• Prepare Affidavits, including:
• Financial Affidavit
• Custody Affidavit
• Witness Affidavit(s)
• Child Support Affidavit and Calculation (with pay information)
• Anti-hypothecation and anti-disturbing the peace order
• Motion for Temporary Custody and Allowances or Motion for Temporaries
• Identify the relief you are requesting
Child Support
• http://cluster.nebcsc.com/ChildSupport/trunk/
• Calculating Income:
• Current income
• Peter v. Peter, 262 Neb. 1017, 1022, 637 N.W.2d 865, 871 (2002) (child support
should be based on current income)
• Earning Capacity
• Hughes v. Hughes, 14 Neb. App. 229, 249, 706 N.W.2d 569, 584 (2005) (earning
capacity may be used in lieu of a parent’s actual income)
• Retained Earnings
• Pickrel v. Pickrel, 14 Neb.App. 792, 717 N.W.2d 479 (2006)
• Income-averaging
• Shiers v. Shiers, 240 Neb. 856, 485 N.W.2d 574 (1992)
• Military income
5
7/29/2015
Child Support
• Deductions
• Health Insurance Credit
• Retirement contributions
• Previously ordered support or subsequently born children
• Poverty guidelines
• Income Withholding
• Neb. Rev. Stat. Sec. 42-358.05
• Nebraska Child Support Guidelines
• Rebuttable Presumption, Neb. Rev. Stat. Sec. 42-364.16
• Deviation from the Guidelines
Alimony
• To provide for continued maintenance or support of one party when relative
economic circumstances and the other criteria in Neb. Rev. Stat. Sec. 42-365 make it
appropriate
• Neb. Rev. Stat. Sec. 42-365 provides factors for alimony:
1.
2.
3.
4.
5.
6.
7.
Reasonable
Circumstances of the parties
Duration of the marriage
History of contributions to the marriage by each party
Contributions to the care and education of the children
Interruption of personal careers or educational opportunities
Ability of supported party to engage in gainful employment without interfering with the
interest of any minor children in custody of such party
6
7/29/2015
Ex Parte Motions and Orders
• Neb. Rev. Stat. Sec. 42-357:
…the court may issue ex parte orders:
(1) restraining any person from transferring, encumbering, hypothecating, concealing, or in
any way disposing of real or personal property except in the usual course of business or for the
necessaries of life, and the party against whom such order is directed shall upon order of the
court account for all unusual expenditures made after such order is served upon him or her,
(2) enjoining any party from molesting or disturbing the peace of the other party or any minor
children affected by the action, and
(3) determining the temporary custody of any minor children of the marriage, except that no
restraining order enjoining any party from molesting or disturbing the peace of any minor
child shall issue unless, at the same time, the court determines that the party requesting such
order shall have temporary custody of such minor child.
Ex parte orders issued pursuant to subdivisions (1) and (3) of this section shall remain in
force for no more than ten days or until a hearing is held thereon, whichever is earlier.
Ex Parte Motions and Orders
• Motion for Ex Parte Order
• Affidavit in Support of Motion for Ex Parte Order
• Ex Parte Order and Notice of Hearing
• Personal Service
7
7/29/2015
Parenting Class
• Order to Attend Parenting Class, Neb. Rev. Stat. Sec. 43-2928
• For cases involving children, each parent must attend a parenting class
• Divorce: “What About the Children”
• Modification: “Reaching Beyond Conflict”
• Know what classes will qualify
•
•
•
•
Douglas County Conciliation Court
The Child Saving Institute
Co-Parenting for Successful Kids offered by the UNL Extension Office
www.onlineparentingprograms.com
• File Certificate of Completion
• Motion to Waive Rule 4-3
Mediation
• Review local court rules regarding mediation
• Familiarize yourself with local mediators
• Educate your client regarding the process
8
7/29/2015
Parenting Plan
• Uniform Mediation Act, Neb. Rev. Stat. Sec. 25-2930
• Mediator-prepared Parenting Plan
• Attorney-prepared Parenting Plan
Nebraska Parenting Act
• Pursuant to Neb. Rev. Stat. Sec. 43-2929:
(1) In any proceeding in which parenting functions for a child are at issue
under Chapter 42, a parenting plan shall be developed and shall be approved by the
court. Court rule may provide for the parenting plan to be developed by the parties
or their counsel, a court conciliation program, an approved mediation center, or a
private mediator. When a parenting plan has not been developed and submitted to
the court, the court shall create the parenting plan in accordance with the Parenting
Act. A parenting plan shall serve the best interests of the child pursuant to sections
42–364 and 43–2923 or the Uniform Deployed Parents Custody and Visitation Act if
such act applies…
9
7/29/2015
A Parenting Plan shall include the following:
1. Legal custody and physical custody of each child;
2. Apportionment of parenting time, visitation, or other access for each child, including, but not limited to,
specified religious and secular holidays, birthdays, Mother’s Day, Father’s Day, school and family
vacations, and other special occasions, specifying dates and times for the same, or a formula or method
for determining such a schedule in sufficient detail that, if necessary, the schedule can be enforced in
subsequent proceedings by the court, and set out appropriate times and numbers for telephone access;
3. Location of the child during the week, weekend, and given days during the year;
4. A transition plan, including the time and places for transfer of the child, method of communication or
amount and type of contact between the parties during transfers, and duties related to transportation of
the child during transfers;
5. Procedures for making decisions regarding the day-to-day care and control of the child consistent with the
major decisions made by the person or persons who have legal custody and responsibility for parenting
functions;
6. Provisions for a remediation process regarding future modifications to such plan;
7. Arrangements to maximize the safety of all parties and the child;
8. Provisions to ensure regular and continuous school attendance and progress for school-age children of the
parties; and
9. Provisions for safety when a preponderance of the evidence establishes child abuse or neglect, domestic
intimate partner abuse, unresolved parental conflict, or criminal activity which is directly harmful to a
child.
Neb. Rev. Stat. Sec. 43-2929(1)
Discovery
• Tailor your discovery to the issues determined by the pleadings
• Neb. Rules of Discovery in Civil Actions, Sec. 6-301 to 6-337
• Interrogatories (Neb. Ct. R. Disc. Sec. 6-333)
• Request for Production of Documents (Neb. Ct. R. Disc. Sec. 6-334)
• Subpoenas (Neb. Ct. R. Disc. Sec. 6-334(A))
• Calendar deadlines
• Motion to Compel
• Protective Orders
• Depositions
• Notice to Take Deposition
• Notice to Take Deposition Duces Tecum
10
7/29/2015
Stipulated Decree of Dissolution of
Marriage
• Neb. Rev. Stat. Sec. 42-365 and 42-366
• When can a Decree be entered?
• Restoration of Maiden Name
• Additional Documents
• Parenting Plan
• Child Support Calculation
Stipulated Property Settlement
Agreement
• Property Settlement must be fair, reasonable, and not unconscionable
• Equitable division of property is a three step process:
1. Classify the property as marital or non-marital
2. Value the marital assets and the marital liabilities of the parties
3. Calculate and divide the net marital estate between the parties in accordance
with the principles set forth in Neb. Rev. Stat. Sec. 42-365
• Date of Valuation
• The date needs to bear a rational relationship to the property to be divided Myhra v.
Myhra, 16 Neb.App. 920, 756 N.W.2d 528 (2008)
11
7/29/2015
Final Hearing
• Verified Certificate of Waiver of Hearing
• Neb. Rev. Stat. Sec. 42-361(3)
• Prove Up Hearing
• Marriage is irretrievably broken
• Best interest finding
• Neb. Rev. Stat. Sec. 42-361(1) - (2)
Trial Exhibits
• Proposed Division of Marital Assets
• Proposed Division of Marital and Post-Separation Debts
• Child Support Affidavit and Calculation
• Proposed Parenting Plan
• Suggestions
12
7/29/2015
Tracing Non-Marital Property
• Separate property, whether inherited, gifted, or premarital, if it can be identified, it
is typically set off to the inheriting spouse, the donee spouse, or the spouse who
brought the property into the marriage. Tyler v. Tyler, 253 Neb. 209, 570 N.W.2d 317
(1997)
• The burden of proof to show that property is non-marital remains with the person
making the claim. Malin v. Loynachan, 15 Neb.App. 706, 736 N.W.2d 390 (Neb.App.
2007)
• In order to prevail on a claim to keep non-marital property separate, there must be
a clear identification of the non-martial asset used. Schuman v. Schuman, 265 Neb.
459, 658 N.W.2d 30 (2003)
• Documentary evidence rather than mere testimony is usually required, but not
always. See Quinn v. Quinn, 13 Neb. App. 155, 689 N.W.2d 605 (2004), Rogman v.
Rogman, A-1-265 Court of Appeals November 2011 not designated for publication
Court Ordered Decree
• Findings issued by Judge
• Incorporate such findings in Decree of Dissolution of Marriage
• If minor children, still need to attach a Parenting Plan and Child Support
Calculation
13
7/29/2015
Motion for New Trial
• Neb. Rev. Stat. 25-1142 – 25-1144.01
• Calendar Deadlines
• Neb. Rev. Stat. 25-1144.01 – Motion for New Trial
• Neb. Rev. Stat. 25-1329 – Motion to Alter or Amend Judgment
• Basis for Motion (Neb. Rev. Stat. Sec. 25-1142):
•
•
•
•
•
•
•
Irregularity in the proceedings
Misconduct of a party
Accident or surprise, which ordinary prudence could not have guarded against
Error in the assessment of recovery
The judgment of the court was not supported by the evidence/and or is contrary to law
Newly discovered evidence
Error of law
• Tolls the deadline for filing an appeal
Appeal
• Calendar Deadlines
• Notice of Appeal
• Praecipe for Transcript
• Praecipe for Bill of Exceptions
• Docket Fee
• Timeline
14
7/29/2015
Appeal
• Advise your client regarding accepting benefits under the Decree
• Harte v. Castetter et al., 38 Neb. 571, 57 N.W. 381 (1894)
• The Nebraska Supreme Court held “…it may be stated, as a general rule, that a party who
accepts the benefits of a decree waives the right to prosecute an appeal from it.” Harte v.
Castetter et al., 38 Neb. 571, 571, 57 N.W. 381, 382 (1894). The Nebraska Supreme Court
further found:
[i]t would be manifestly unjust to permit a party who has accepted the fruits of a
decree, by taking all the money the decree gives him, to prosecute his appeal. A
party who is dissatisfied with a decree in his favor should have the same reviewed
by proper proceedings. He has the option to do that, or to proceed to enforce the
decree, and receive the benefits therefrom; but he cannot pursue both, since one
course is inconsistent with the other. The acceptance of the money found due by a
decree must be deemed an abandonment of an appeal previously taken.
Id.
Appeal
• Larabee v. Larabee, 128 Neb. 560, 259 N.W. 520 (1935)
A judgment was entered against a husband in favor of his wife in the parties’
dissolution action. The wife appealed the parties’ decree. During the pendency of the
appeal, the husband paid the entire judgment entered against him to the clerk of the
court and the wife voluntarily accepted said payment. The Supreme Court of
Nebraska determined that “a litigant cannot voluntarily accept payment of that part
of a judgment in his favor and afterward prosecute an appeal from that part of the
judgment against him.”
15
7/29/2015
Issues Pending Appeal
When final orders relating to proceedings governed by sections 42-347 to 42-381 are
on appeal and such appeal is pending, the court that issued such orders shall retain
jurisdiction to provide for such orders regarding support, custody, parenting time, visitation,
or other access, orders shown to be necessary to allow the use of property or to prevent the
irreparable harm to or loss of property during the pendency of such appeal, or other
appropriate orders in aid of the appeal process. Such orders shall not be construed to
prejudice any party on appeal.
Neb. Rev. Stat. Sec. 42-351(2)
QDROS
• Properly divides retirement accounts pursuant to Decree
• Recommend you include language in the Decree addressing which party is
responsible for completing the QDRO
• Contact the Plan Administrator regarding requirements or forms
16
7/29/2015
Post Decree Issues
• Remarriage
• Change beneficiaries on life insurance policies
• Change beneficiaries on retirement accounts
• Update estate planning documents
• Credit Report
Contempt
• Review the local court rules regarding contempt proceedings
• Douglas County evidentiary hearing
• Sarpy County enter a plea initially then an evidentiary hearing
• Affidavit and Application for Citation of Contempt
• Order to Show Cause
• Burden of proof is clear and convincing evidence
17
7/29/2015
Removal
• The paramount consideration in considering a motion to remove a minor child to
another jurisdiction is whether the proposed move is in the best interests of the
child. Jack v. Clinton, 259 Neb. 198, 203, 609 N.W.2d 328, 334 (Neb. 2000) (citing
Farnsworth v. Farnsworth, 257 Neb. 242, 249, 597 N.W.2d 592, 598 (1999)); Evenson
v. Evenson, 248 Neb. 719, 721, 538 N.W.2d 746, 748 (1995))
• In determining whether removal to another jurisdiction is in a child’s best
interests, the court considers:
(1) each parent’s motives for seeking or opposing the move;
(2) the potential that the move holds for enhancing the quality of life for the child and the
custodial parent; and
(3) the impact such a move will have on contact between the child and the noncustodial
parent, when viewed in the light of reasonable visitation.
McLaughlin v. McLaughlin, 264 Neb. 232, 241, 647 N.W.2d 577, 587 (2002). See also Wild v.
Wild, 15 Neb. App. 717, 742, 737 N.W.2d 882, 902 (2007)
Removal
• In determining the potential a removal to another jurisdiction holds for enhancing the quality of life of
the parent seeking removal and of the child, a court should consider the following factors:
(1) the emotional, physical, and developmental needs of the child;
(2) the child’s opinion or preference as to where to live;
(3) the extent to which the relocating parent’s income or employment will be enhanced;
(4) the degree to which housing or living conditions would be improved;
(5) the existence of educational advantages;
(6) the quality of the relationship between the child and each parent;
(7) the strength of the child’s ties to the present community and extended family there; and
(8) the likelihood that allowing or denying the move would antagonize hostilities between the two parties
McLaughlin v. McLaughlin, 264 Neb. 232, 243, 647 N.W.2d 577, 588 (2002) (citing Brown v. Brown, 260
Neb. 954, 967, 621 N.W.2d 70, 81 (2000))
18
7/29/2015
Additional Issues
• Registration of Foreign Decrees
• Comply with UCCJEA
• Comply with UIFSA
• Juvenile Court Jurisdictional Issues
• Guardian Ad Litem/Attorney for the Children
• Protection Order and Harassment Protection Orders
• Nebraska Child Support Guidelines
• Bankruptcy
• Garnishment
• Appointment of a GAL for a party
Resources
Nebraska Local Court Rules
◦ https://supremecourt.nebraska.gov/rules/external/district-local-rules
Nebraska Child Support Calculation
◦ http://cluster.nebcsc.com/ChildSupport/trunk/
Nebraska Child Support Guidelines
◦ https://supremecourt.nebraska.gov/supreme-court-rules/ch4/art2
Nebraska Supreme Court Self-Help Forms
◦ https://supremecourt.nebraska.gov/self-help/7230/filing-divorce-nebraska-no-children-andno-disputed-property
Nebraska Office of Dispute Resolution
◦ https://supremecourt.nebraska.gov/5942/office-dispute-resolution
19
Divorce Law: Understanding the Basics
Jill M. Mason
KINNEY LAW, P.C., L.L.O.
900 South 75th Street
Omaha, NE 68114
(402) 905-2220
I.
INITIAL CONSULTATION
When an initial client contacts your office, have your paralegal or assistant prepare a
prospective client intake. It is helpful to know what the potential client perceives the issues of
his/her case to be and what issues will be in dispute. It is also beneficial to obtain basic contact
information. See the attached Prospective Client Intake form.
When meeting with the client, be prepared for a wide range of questions. The client will
have his or her own experiences related to court, potentially even a previous divorce proceeding.
Oftentimes, during divorce proceedings you see clients at the worst time of their lives. As such,
be prepared for many emotions and to listen.
You should obtain basic information that will enable you to file initial pleadings and to
determine fees related to the case. Familiarize yourself with the information needed to complete
the Confidential Information Form and Vital Statistics Form, which will be required to file the
action. Make sure the client meets the residency requirements and confirm where you will file the
action.
II.
FEES
Estimate the amount of time you will incur in the case. You can then prepare a fee
agreement or retainer agreement. You should charge at least half the estimated time as a retainer.
Charge separate fees for filing fees, costs, contempt proceedings, protection order hearings,
QDROs, etc. Negotiate a separate fee agreement or retainer agreement for appeals.
III.
COMPLAINT
Review Neb. Rev. Stat. § 42-353. A Complaint must contain the following:
1.
2.
3.
4.
5.
6.
Name and address of Plaintiff;
Name and address of Defendant;
Date and place of marriage;
Name and year of birth of each child affected by the proceedings;
Whether a parenting plan has been developed;
Whether child custody, parenting time, visitation, or other access or child support is
contested;
7.
8.
9.
10.
If the Plaintiff is a party to any other pending action for divorce, separation, or
dissolution of marriage;
Reference to any existing restraining orders, protection orders, or criminal nocontact orders;
Statement of relief sought; and
Allegation that the marriage is irretrievably broken.
If you fail to request certain relief in your Complaint, you will not receive it. Therefore,
make sure you ask for attorney fees and alimony/spousal support, if applicable. Review Neb. Rev.
Stat. § 42-359 and Neb. Rev. Stat. § 42-365 regarding alimony. If the initial Complaint fails to
address each issue of relief, file an Amended Complaint.
See attached sample Complaint. A good practice is to always have your client verify the
Complaint.
IV.
PERSONAL SERVICE
In order to obtain personal service, you must either: (1) have the spouse served by a sheriff;
or (2) have the spouse execute a Voluntary Appearance. See Neb. Rev. Stat. § 42-352 and Neb.
Rev. Stat. § 25-517.02. Oftentimes, your client will allow his or her spouse the courtesy of signing
a Voluntary Appearance in lieu of being served by a sheriff. Include a deadline by which the
Defendant needs to sign and return the Voluntary Appearance to your office or you will proceed
with service by sheriff.
Know when the sheriff in that county will serve the Defendant so you can determine where
the Defendant needs to be served. If for example, a sheriff will only serve a party during normal
business hours Monday through Friday and the person you are trying to serve works every day
from 6:00 a.m. to 6:00 p.m., you most likely will not be able to serve him/her at home. You could,
however, serve him/her at work. You can include multiple addresses within the same county in
the Praecipe.
If a spouse evades service or the sheriff is unable to serve him or her, you can file a Motion
for Alternate Service requesting a civil process server be allowed to serve the Defendant or
permission to serve by publication.
See the attached sample Praecipe, Voluntary Appearance, letter regarding Voluntary
Appearance, and Motion and Order for Alternate Service.
V.
ANSWER AND COUNTER-COMPLAINT
If you represent the Defendant, it is very important that you file an Answer within thirty
(30) days of service. Failure to do so, could result in a default Decree being entered. If your client
hires you after thirty (30) days have already run, you should file a formal entry of appearance and
file a Motion for Leave to File Answer Out of Time. Generally, if there is an attorney on the
2
outside, he or she will stipulate to an Order allowing you leave. Attached is a sample Motion for
Leave to File Answer Out of Time.
Filing a Counter-Complaint allows you to proceed on your claim regardless of whether the
Plaintiff dismisses his/her initial action. You should ask for what you want or you have no chance
of receiving it. For example, attorney fees, maiden name restoration, etc. Your CounterComplaint needs to comply with the UCCJEA requirements and Neb. Rev. Stat. § 43-1226 et. seq.
VI.
TEMPORARY HEARING
Temporary hearings are by affidavit. Your client is not permitted to testify, but rather his
or her testimony is submitted via affidavit. Based on the facts and issues of your case, you should
consider submitting the following:
1.
2.
3.
4.
A financial affidavit;
A custody or child information affidavit;
Witness affidavit(s); and
A child support affidavit and child support calculation.
You should know where you are filing and what the local rules are for that court.
Oftentimes, there are strict deadlines, especially related to affidavits. For example, in Douglas
County and Sarpy County, affidavits of the moving party must be submitted to the court and the
opposing counsel/party 48 hours prior to the hearing. The non-moving party’s affidavits must be
submitted 24 hours prior to the hearing. Weekends do not count in calculating the deadline. In
addition, in some counties the bailiffs may require that your client either be enrolled in or have
completed the parenting class before he/she will provide you with a temporary hearing date. If
you do not know the rules, see https://supremecourt.nebraska.gov/rules/external/district-localrules or contact the bailiff.
Even if there are no children involved in the case or the parties are in agreement on
temporary issues, it is still beneficial to obtain a temporary order.
See the attached Motion for Temporary Custody and Allowances and Temporary Order.
It is beneficial to have at least three recent pay stubs and the most recent W-2s in order to
complete a child support calculation.
For a financial affidavit, pay particular attention to a client’s monthly living expenses.
VII.
CHILD SUPPORT
Familiarize yourself with the Nebraska Child Support Guidelines. Pursuant to Neb. Rev.
Stat. § 42-364.16:
3
The Supreme Court shall provide by court rule, as a rebuttable presumption, guidelines for
the establishment of all child support obligations. Child support shall be established in
accordance with such guidelines, which guidelines are presumed to be in the best interests
of the child, unless the court finds that one or both parties have produced sufficient
evidence to rebut the presumption that the application of the guidelines will result in a fair
and equitable child support order.
Any deviation from the Nebraska Child Support Guidelines must be articulated in the
Decree as well as the basis for such deviation.
Determine the parties’ income. Income may be based on current income, earning capacity,
retained earnings, certain retained earnings, or income-averaging. Be aware of deductions for the
health insurance premium attributable to the minor child(ren), retirement contributions, previously
ordered support, or subsequently born children. Neb. Rev. Stat. Sec. 42-358.05.
VIII. ALIMONY
The purpose of alimony is to provide for continued maintenance or support of one party
when relative economic circumstances and the additional criteria set forth in Neb. Rev. Stat. § 42365 make it appropriate. Review Neb. Rev. Stat. § 42-365 regarding the factors for alimony.
Currently, there is not a uniform approach to alimony in Nebraska. The following includes
a review of pertinent Nebraska cases:
Case
Husband’s
Employment
Husband’s
Income
Anderson v.
Anderson, 290 Neb.
530 (2015)
Becker v. Becker,
20 Neb.Ap. 922,
834 N.W.2d 620
(2013
Electrician
$66,040
Car Parking
Company
$8.25 per
hour
1
Research
Scientist at
ConAgra
Foods
$60,000
TD Ameritrade
$175,000
plus
bonus
potential
2
Brown v. Brown,
Unreported (2013)
Owned his
50,000
own insurance
company
Family Farm
$11,153.93
per month
Registered Nurse
$53,604
2
Duration Alimony
of
Awarded
Marriage
4 years
$600 per
month for
60 months
22 years
$2,000 per
month for
84 months
awarded to
Husband
8 years
None
Stay at home
mom; at trial
earned $10.28 per
hour
$10.28
per hour
2
17 years
Bussell v. Bussell,
21 Neb.App. 280,
837 N.W.2d 840
(2013)
Wife’s
Employment
4
Wife’s
Income
Kids
$1,500 per
month 96
months
Case
Husband’s
Employment
Husband’s
Income
Wife’s
Employment
Wife’s
Income
Geise v. Geise,
Unreported (2013)
Owner of
Precision
Lighting &
Electric, LLC
$100,000
Primarily a stay at $16 per
home mom and
hour
some part-time
employment
2
Haskin v. Haskin,
Unreported (2013)
Deffenbaugh
Industries, but
laid off in
2009
$43,711.83
Stay at home
mom primarily,
but also worked
part-time
2
Horner v. Horner,
Unreported (2014)
Consulting
Business
$88,800
Keady v. Keady,
Unreported (2014)
Tiburon
Financial,
LLC
Unknown
Stay at home
mom and kitchen
worker at school
Stay at home
mom and parttime 2-3 hours
per week at
kitchen
Kellogg v. Kellogg,
Unreported (2013)
Railroad
worker
$43,245.36
Molczyk v.
Molczyk, 285 Neb.
96,
Unknown
$91,284
Rommers v.
Rommers, 21
Neb.App. 606, 858
N.W.2d 607 (2014)
Unknown
$37,000
$15 per
hour at
furniture
store and
$8.20 per
hour at
grocery
store
$11.47
Kids
Duration Alimony
of
Awarded
Marriage
12 years
$1,500 for
12 months,
$1,000 for
12 months,
and $500
for 12
months
21 years
$200 per
month for
36 months
3
15 years
$880 for
72 months
Unknown 0
31 years
Stay at home
mom, but by end
of marriage
Senior Sales
Executive for an
insurance
company earning
$157,000
Unknown
$157,000
2
28 years
$4,000 for
6 months
then
$3,300 for
114
months
$500 per
month for
84 months
awarded to
Husband
$21,312
7
30 years
Stay at home
mom
Unknown 1
5
3 years
$750 for
24 months
and $600
for 36
months
None
Case
Sharp v. Sharp,
Unreported (2013)
Smith v. Smith,
20 Neb.App. 192
IX.
Husband’s
Employment
Husband’s
Income
Wife’s
Employment
Wife’s
Income
Kids
Internal
Medicine
Physician
Unknown
$450,000
Stay at home
mom
Unknown 3
$22,200
Unknown
$70,000
1
Duration Alimony
of
Awarded
Marriage
20 years
$3,500 for
114
months
30 years
$1,500 per
month for
10 years
awarded to
Husband.
EX PARTE MOTIONS AND ORDERS
Review Neb. Rev. Stat. § 42-357 regarding ex parte motions and orders. You will need to
file a Motion for Ex Parte Order and an affidavit in support of your motion. If you meet your
burden of proof and the Judge executes your Ex Parte Order, you must perfect service of the Ex
Parte Order on the opposing party. Hearing on the Ex Parte Order must be scheduled within ten
days of the entry of the order.
See attached Motion for Ex Parte Order and Ex Parte Order.
X.
PARENTING CLASS, MEDIATION, AND PARENTING PLAN
Each parent of a minor child is required to attend a parenting class. In divorce proceedings,
the parenting class is “What About the Children” or an equivalent thereof. In modification
proceedings, the parenting class is “Reaching Beyond Conflicts” or the equivalent thereof. You
should familiarize yourself with qualifying classes for your clients so you can provide them with
options as to where and when to complete the parenting class. Once your client completes the
parenting course, file a copy of the certificate of completion with the court.
Familiarize yourself with local court rules regarding mediation and the preparation and
approval of a parenting plan. For example, you should know whether the county in which the
proceeding is filed maintains a conciliation court.
In any proceeding in which parenting functions of a child are at issue, a parenting plan
must be developed and approved by the court. Neb. Rev. Stat. § 43-2929. A parenting plan may
be developed by the parties, their counsel, a court conciliation program, an approved mediation
center, or a private mediator. Id. The parenting plan shall serve the best interest of the child.
The parenting plan shall include the provisions set forth in Neb. Rev. Stat. § 43-2929. If
the parties are unable to agree to a parenting plan or to mediate a parenting plan, the court shall
order a parenting plan. In such instances, I recommend you prepare a proposed parenting plan as
a trial exhibit, thereby providing the court with your client’s wishes regarding a plan. If the parties
6
agree to a parenting plan, the court shall determine whether the plan is in the best interest of the
child(ren). Neb. Rev. Stat. § 43-2935.
See the attached sample parenting plan.
XI.
DISCOVERY
Review discovery rules set forth in Neb. Ct. R. Disc. 6-301-6-337. The issues in your case
will be narrowed by the pleadings and the issues that arise at the temporary hearing. Tailor your
Interrogatories and Request for Production of Documents accordingly.
See attached sample Interrogatories and Request for Production of Documents.
If you do not receive certain information from the opposing party/counsel or you desire to
verify such information, issue a Rule 34(A) subpoena. See attached sample Notice of Intent to
Issue Subpoena and Subpoena.
Calendar deadlines for discovery. Rarely will a party answer discovery within thirty (30)
days. If you do not receive timely discovery responses, obtain a hearing date and proceed on a
Motion to Compel. See attached sample Motion to Compel.
Discovery may also include depositions of the parties, experts, or other individuals. See
the attached Notice to take Deposition.
XII.
DECREE OF DISSOLUTION OF MARRIAGE AND PROPERTY SETTLEMENT AGREEMENT
Review Neb. Rev. Stat. § 42-365 and Neb. Rev. Stat. § 42-366 regarding the information
to include in the Decree. If there are minor children affected by the proceedings, a parenting plan
and child support calculation must be attached to the Decree.
Property should be equitably divided between the parties pursuant to Neb. Rev. Stat. § 42365. If your client has certain premarital property, an inheritance, or a gift, make sure you comply
with the requirements to properly trace such assets in order to meet your burden of proof to set
aside such non-martial property.
Pursuant to Neb. Rev. Stat. § 42-363, “[n]o suit for divorce shall be heard or tried until
sixty days after perfection of service of process, at which time the suit may be heard or tried and a
decree may be entered.”
Make sure you confirm with your client whether she would like her maiden name restored.
It is much easier to include language in the Decree than to proceed with a separate action to change
her name under Neb. Rev. Stat. § 25-21,271.
7
If you stipulate to a Decree, have your client and the opposing party sign a Verified
Certificate of Waiver of Hearing in order to waive the final hearing. If you do not obtain a
Certificate of Waiver, you must proceed with a final, prove up hearing in order for the court to
make findings that the parties’ marriage is irretrievably broken and should be dissolved.
If you are unable to stipulate to a Decree and must proceed with trial, prepare a proposed
Decree to offer as an exhibit. In addition, see attached proposed trial exhibits, including a child
support affidavit, proposed division of martial assets, proposed division of debt, and suggestions.
See attached sample Decree of Dissolution of Marriage.
XIII. MOTION FOR NEW TRIAL
Make sure you calendar the deadline for filing a Motion for New Trial. Pursuant to Neb.
Rev. Stat. § 25-1144.01, said Motion “shall be filed no later than ten days after the entry of the
judgment. A motion for a new trial filed after the announcement of a verdict or decision but before
the entry of judgment shall be treated as filed after the entry of judgment and on the day thereof.”
Review Neb. Rev. Stat. 25-1142 regarding the grounds for filing a Motion for New Trial.
Filing a Motion for New Trial tolls the deadline for filing an appeal. Pursuant to Neb. Rev. Sat. §
25-1912(3),
The running of the time for filing a notice of appeal shall be terminated as to all parties (a) by
a timely motion for a new trial under section 25-1144.01, (b) by a timely motion to alter or
amend a judgment under section 25-1329, or (c) by a timely motion to set aside the verdict or
judgment under section 25-1315.02, and the full time for appeal fixed in subsection (1) of this
section commences to run from the entry of the order ruling upon the motion filed pursuant to
subdivision (a), (b), or (c) of this subsection. When any motion terminating the time for filing
a notice of appeal is timely filed by any party, a notice of appeal filed before the court
announces its decision upon the terminating motion shall have no effect, whether filed before
or after the timely filing of the terminating motion. A new notice of appeal shall be filed within
the prescribed time after the entry of the order ruling on the motion. No additional fees are
required for such filing. A notice of appeal filed after the court announces its decision or order
on the terminating motion but before the entry of the order is treated as filed on the date of and
after the entry of the order.
See attached sample Motion for New Trial.
XIV. APPEAL
Make sure to calendar the deadline for filing so you can timely file your appeal within
thirty (30) days of the entry of a judgment. To file an appeal, you need to properly file Notice of
8
your appeal with the District Court in which the action occurred in accordance with Neb. Rev.
Stat. § 25-1912 and Neb. Rev. Stat. 25-1914. You will also need to pay the proper docket fee.
Prepare a Praecipe for Transcript in which you identify each of the pleadings filed in the
court case that you would like the Clerk to prepare and send to the Court of Appeals. In addition,
prepare a Praecipe for Bill of Exceptions identifying the record(s) you would like the court reporter
to prepare and certify to the Court of Appeals.
Once a case is opened by the Court of Appeals, the Court of Appeals will notify you of the
deadline by which the court reporter needs to submit the Bill of Exceptions. Thirty days thereafter
Appellant’s brief will be due.
Be sure to discuss with your client the ramifications of accepting benefits under the Decree
and how such action will impact the appeal.
Oftentimes, certain issues may arise during the pendency of appeal. The Court of Appeals
maintains jurisdiction until a Mandate is issued. However, the District Court also maintains
jurisdiction over certain issues during the pendency of the appeal. In particular, the District Court
maintains jurisdiction to “provide for such orders regarding support, custody, parenting time,
visitation, or other access orders shown to be necessary to allow the uses of property to prevent
the irreparable harm to or loss of property during the pendency of such appeal, or other appropriate
orders in aid of the appeal process.” Neb. Rev. Stat. § 42-351(2).
See attached Notice of Appeal, Praecipe for Transcript, and Praecipe for Bill of Exceptions.
XV.
CONTEMPT
Review local court rules regarding contempt proceedings. Prepare an Application and
Affidavit for Citation of Contempt for your client based on the issues of the proceeding. Prepare
an Order to Show Cause for the Judge to execute. You must serve the opposing party with the
Order to Show Cause and Application. In lieu of personal service, the opposing party may sign a
Voluntary Appearance. An evidentiary hearing is heard regarding the contempt.
The moving party must prove contempt by clear and convincing evidence. An essential
element to prove contempt is willful disobedience Belitz v. Belitz, 21 Neb.App. 716, 842 N.W.2d
613 (2014).
See attached Application and Affidavit for Citation of Contempt and Order to Show Cause.
9
PROSPECTIVE CLIENT INTERVIEW
Name of client:
Name of opposing party:
Referred by:
Nature of Case:
Date & time of interview:
Advised of initial interview fee:
Address for client:
Case pending?
Parties separated?
Telephone numbers for client:
Cell:
Business:
Home:
Email:
Address for spouse/opposing party:
Attorney for opposing party:
Client’s job/employer:
Spouse’s job/employer:
Date/place of marriage:
Prior marriages/children:
Children of this marriage & ages:
Likelihood of custody dispute?
Miscellaneous Notes:
10
FEE AGREEMENT
THIS AGREEMENT, a contract for employment of legal counsel, is made and entered into
by and between Kinney Law, P.C., L.L.O. (hereinafter referred to as the “Firm” or “we”) and
__________________ (hereinafter referred to as the “Client” or “you”).
By signing this Agreement, Client employs the Firm to represent Client with regard to a
dissolution of marriage action at the trial court level. The representation shall be limited to the
following matters:
Child Custody
Child Support
Alimony
Equitable Distribution (of Assets and Debts)
_____
Attorney Fees
______
Appropriate Parenting Time for Each Party
Valuation of a Small Business
If an “unchecked” issue becomes controversial, and the subject of meaningful and ongoing
dispute, this Agreement may require revision.
The Client and the Firm will negotiate a separate agreement in the event that the Client and
the Firm undertake an appeal. Client understands that the Firm will not represent the Client in any
appeal until such time as the separate agreement is negotiated.
In consideration of the legal services to be furnished by the Firm, Client shall pay the Firm
pursuant to the following fee arrangements:
Legal Services. The aforementioned services are provided to the Client, and the Firm is
reserving its services for Client, in exchange for fixed fees paid according to the following
schedule:
$______________ for initiation of litigation, including drafting initial pleadings,
preparing for and responding to initial motions (for temporary support, temporary
living arrangements, financial restraining orders, custody, parenting time and other
temporary matters), preparing affidavits, and scheduling a temporary hearing as
determined necessary by the responsible attorney; In addition, this fee covers all
communication between our office and you and all communication with opposing
11
counsel and any witnesses or other individuals involved in your case. This fee is due
upon retention of the Firm’s services; and
$__________ for conducting, responding to and analyzing written discovery,
including preparing interrogatories, requests for production of documents, requests
for admissions, issuing document production subpoenas on third parties, and
reviewing all such documents generated by the opposing party and assisting you in
preparing responses to any discovery propounded upon you. This fee includes
investigating the factual issues surrounding your case and developing case theories
and strategies based upon same, if necessary, which fee is due 60 days from the date
of retention; and
$___________ for the drafting and negotiation of a Property Settlement
Agreement, Decree of Dissolution of Marriage and any supporting documents, or
reviewing and responding to any such documents prepared by opposing counsel or an
opposing party. This fee shall be due 120 days from the date of retention. This shall
include but not be limited to the following services: verbal and written communication
with opposing counsel and Client regarding the settlement of the domestic dispute in
the form of telephone calls, in-person conferences, letters, emails, and drafting of
agreements/documents. Representation shall terminate upon the signing of a set of
final divorce documents by the parties, their counsel, and the court. This does not
include any post-divorce documents, such as deeds for real estate or orders dividing
retirement accounts. A separate agreement will be negotiated between the Client and
Firm in the event the Client requests further representation in addition to the Legal
Services, such as an appeal or post-divorce documents. Client acknowledges that the
Firm will not represent the Client in any appeal or post-divorce matters until such
time as a separate agreement is executed; and
$_____________ for trial and trial preparation, which fee is due 180 days from
the date of retention, on the day of the pre-trial hearing, if any, or 30 days prior to the
scheduled date of the trial, whichever is sooner. The aforementioned fee includes
presenting testimony of up to five (5) witnesses at the trial.
In addition to the foregoing, there may be occasions or events which fall outside of
scope of the typical divorce. For example, your spouse may ask for a protection order, or
you may ask for a protection order, in cases involving allegations of domestic violence.
This is not typical of the cases handled at Kinney Law. There may be hearings related to
a failure by one party to provide information. This is also not typical. The fees and work
set forth above this paragraph should provide a level of service that completes the divorce;
however, some cases involve additional hearings and may involve depositions (testimony
taken from a witness prior to trial which is transcribed in written form). Court appearances
outside of the temporary hearing shall be separately invoiced at $_________. Depositions
of non-expert witnesses shall be separately invoiced at $________, and expert witness
depositions (accountants, business evaluators, etc.) shall be invoiced at $_______.
Depositions of the parties shall be invoiced at $________. Preparation of a qualified
12
domestic relations order to divide a retirement account after the divorce shall be separately
invoiced at $_________. Again, these charges are not always incurred, but they do occur.
The Client will have no obligation to pay any of the flat fees described in this
Agreement if the matter is resolved by execution of a written document prior to the fee
becoming due. Each payment pursuant to this schedule is a prepaid flat fee for providing
the services described above. The fees are earned immediately and not subject to refund
unless required by the Nebraska Rules of Professional Conduct.
Scope of Engagement. You have asked us to represent you with regard to the matters set
forth in the second paragraph on page one of this Agreement. If the scope of our representation
changes, the fees set forth in this Agreement may change as well.
Expenses. All expenses the Firm incurs or advances in connection with providing legal
services will be billed separately. All variable expenses will be billed according to the actual
amount of the expense. Examples of variable expenses are recording fees, filing fees, investigator
fees, expert witness fees, court reporter fees, appraisal fees, etc. Prior to the time that these
expenses are incurred, or after they are incurred by the Firm, we will request that you pay the
expense directly or reimburse us for expenses we have paid on your behalf.
Opposing Party and Attorney’s Fees. Sometimes the Court will order your adversary to
pay part or all of your attorney’s fees and expenses, although sometimes the Court makes no order
for fees and costs. Amounts received pursuant to court order will be credited to your account. The
court award of attorney’s fees and expenses, if any, does not set or limit our fee in any way or your
liability to us for fees and expenses under this Agreement.
If the court awards attorney’s fees and expenses, but those amounts are unpaid by the
opposing party, you may elect to have our firm pursue a collection action on your behalf. Pursuit
of a collection action, however, is an additional service requiring you to execute a separate
agreement to retain our services for that purpose. In the event you discharge us as your attorneys
at any time, or we withdraw as your attorneys, we shall nevertheless have the authority to pursue
the collection of attorney’s fees and expenses awarded against the opposing party and any part
thereof that is collected will be credited to your account. Please understand, however, that you are
at all times primarily liable to us for all attorney’s fees and expenses and any pursuit thereof against
the adverse party is on your behalf and as an additional service to you.
Billing Frequency and Late Charges. Bills for expenses are due when received by the
Client. Flat fees are due according to the schedule set forth in this Agreement. If a bill has not
been paid in full prior to the expiration of a 30-day period from the date on the bill, a late charge
of one-and-one-half percent per month will be imposed on the balance. If a flat fee is not paid in
full when due, a late charge of one-and-one-half percent per month will be imposed on the balance.
13
Termination of Services. You may terminate our representation of you at any time. Any
termination of our representation of you does not relieve you of the obligation to pay any amounts
owed to us for expenses incurred through the date of termination.
We may terminate our representation of you, retain your previous payments and withdraw
as your counsel, if:
a.
The subject of the representation is concluded by execution of a Court order
or judgment or written agreement between the parties;
b.
We discover any conflict of interest;
c.
You fail to pay immediately when due any amounts required to be paid
under this Agreement;
d.
We discover that you have made any misrepresentation in connection with
the matter that we are handling for you, or we discover any material variance between the
facts as related to us by you and the facts as they actually exist;
e.
You act in such a manner as to abuse the attorney/client relationship to such
an extent that, in the discretion of the Firm, you are no longer someone whom the Firm is
willing to represent;
f.
You fail to heed our advice or recommendations or otherwise do not
cooperate with us in our representation of you; or
g.
We have a disagreement over what legal matters the Firm is supposed to be
handling for you.
Client grants the Firm the authority to represent Client in the above matters and to enter
appearances on behalf of Client in any court.
Miscellaneous Terms. We dislike being technical with our clients, but we must include
the following clauses. If you have questions regarding these provisions, please ask.
a.
Each provision of this agreement is severable. The invalidity or
unenforceability of any provision, paragraph, subparagraph, sentence, clause, phrase or
term of this Agreement shall not affect or impair the validity or enforceability of any other
provision, paragraph, subparagraph, sentence, clause, phrase or term of this Agreement.
By signing below, you indicate your understanding that we have not made
b.
an agreement with you or promises to you about the outcome or result of your legal matters.
Also, you agree to notify us immediately in writing if you feel or believe any matter is not
receiving proper attention or is otherwise not being properly handled or you suspect any
misunderstanding about what we are to do for you.
c.
By signing below, you agree that this Agreement has been thoroughly
explained to you and reviewed by you before you sign it, or that you had an ample
opportunity to review it and have it fully explained to you.
d.
After completing the work for you, we will dispose of everything in the file
after mailing any important original material back to you. We will maintain digital copies
of all documents on our computer system for at least three years after the matter is finished.
14
e.
If any funds of yours are in our possession at any time, we may deduct from
those funds and pay to ourselves any unpaid amounts we have billed you (that are due
under the terms of this Agreement).
Communication. We encourage you to ask immediately any questions you have about
our charges or services. We promise to provide prompt, accurate answers. We expect you to
inform us of any complaints about any bill immediately after it is sent to you.
Please indicate your agreement by signing in the space provided below on the enclosed
extra copy of this contract and return it to us immediately. Thank you for giving us the opportunity
to do your legal work.
The firm recognizes that our clients are our most valuable resource. We care deeply about
your satisfaction with our work. In an effort to ensure that you as our client receive the
personalized service you deserve, we may send you surveys regarding the quality of our work and
our personnel. We ask your cooperation in completing these surveys. By signing this agreement
you indicate you understand and agree to complete those surveys so we can maintain our highest
level of service to you, our client.
DATED this _____ day of ____________, 2015.
___________________________________
_________________
___________________________________
Kinney Law, P.C., L.L.O.
15
IN THE DISTRICT COURT OF SARPY COUNTY, NEBRASKA
_________________________,
Plaintiff,
vs.
_________________________,
Defendant.
)
)
)
)
)
)
)
)
)
CASE NO. CI ______________
COMPLAINT FOR
DISSOLUTION OF MARRIAGE
COMES NOW Plaintiff, ___________________________., and for his cause of action
against Defendant herein, states and alleges as follows:
1.
Plaintiff’s present residence is _____________________, Sarpy County, Nebraska
2.
Defendant is a resident of Papillion, Sarpy County, Nebraska.
3.
The parties were lawfully married on February 21, 1998 in Topeka, Kansas.
4.
Neither Plaintiff nor Defendant is a party to any other pending action for divorce,
68133.
separation, or dissolution of marriage in this State or in any other state.
5.
Neither party is a member of the Armed Forces of the United States or its allies,
nor has either party been ordered for induction into the same.
6.
There has been a breakdown in the marital relationship of the parties to the extent
that the marriage is irretrievably broken; efforts of the parties at reconciliation have wholly failed;
further attempts at reconciliation would be fruitless; and there remains no reasonable likelihood
that the marriage can be preserved.
7.
The parties are the parents of two (2) children, the eldest of whom has attained the
age of majority under Nebraska law. The parties’ minor child, the custody and welfare of whom
may be affected by these proceedings, is: __________________, born in 1998. The Plaintiff and
Defendant are fit and proper persons to be awarded the temporary and permanent care, custody,
and control of the minor child. It is in the minor child’s best interests that the parties be awarded
joint legal and joint physical custody.
8.
Child support should be awarded according to the Nebraska Child Support
Guidelines.
16
9.
Pursuant to the Nebraska Child Custody Jurisdiction Act, Plaintiff states that the
name and present address of the minor child affected by these proceedings, together with the places
the minor child has lived for the past five (5) years, are as follows:
Child
Location
Dates Lived at Location
______________
________________
2007 to Present
10.
The minor child has resided since her birth with the Plaintiff and Defendant. No
person not a party to this action has physical custody of the minor child or claims to have custody
or visitation rights with respect to the minor child.
11.
The parties, during the course of their marriage, have accumulated certain items of
property (real, personal and mixed), which should be equitably divided between the parties.
12.
The parties, during the course of their marriage, have incurred certain debts and
obligations, and the liability for payment of these debts and obligations should be equitably divided
between the parties.
13.
Plaintiff requests that this matter be heard by a District Court Judge.
14.
There is no adequate remedy at law.
WHEREFORE, the Plaintiff requests the following relief:
A.
A dissolution of the marriage between the parties;
B.
An Order awarding custody of the minor child consistent herewith;
C.
An Order awarding child support consistent with the Nebraska Child Support
Guidelines;
D.
An equitable division of the property acquired and the debts and obligations
incurred by the parties;
E.
That this matter be heard by the District Court; and
F.
For such other and further relief as the Court deems just and equitable,
17
______________________, Plaintiff,
By:
STATE OF NEBRASKA
COUNTY OF DOUGLAS
__________________________________
Jill M. Mason, #23960
Omaha, NE 68114
Telephone: (402) 905-2220
Facsimile: (402) 905-2224
Attorney for Plaintiff
)
)ss.
)
______________________, Plaintiff above named, being first duly sworn, deposes and
says that he knows the contents of the foregoing Complaint and that the facts stated therein are
true as he verily believes.
__________________________________
_____________________
Subscribed and sworn to before me this ____ day of February, 2015.
__________________________________
Notary Public
18
THIS DOCUMENT IS CONFIDENTIAL AND SHALL NOT BE MADE
PART OF THE COURT FILE OR PROVIDED TO THE PUBLIC
PURSUANT TO NEB. CT. R. OF DIST. CTS. 21
_____________________,
Plaintiff,
vs.
_______________________,
Defendant.
Name
)
)
)
)
)
)
)
)
)
CASE NO. CI 14 – ________
SOCIAL SECURITY NUMBERS,
GENDER AND BIRTH DATES
Social Security Number
Gender
Birth Date
__________
M
_______
___________
F
_______
______________
F
_________
Plaintiff:
_______________
Defendant:
________________
Minor Child:
_________________
19
______________________,
Plaintiff,
vs.
______________________,
Defendant.
)
)
)
)
)
)
)
)
)
CASE NO. CI 15 – ________
VOLUNTARY APPEARANCE
COMES NOW the Defendant, ___________________, and hereby enters her Voluntary
Appearance in the above-entitled action and acknowledges receipt of a copy of the Complaint for
Dissolution of Marriage as filed herein.
Defendant hereby waives the issuance and service of Summons upon her and submits
herself to the jurisdiction of the Court as fully and completely as if such Summons had been issued
and served upon her in Sarpy County, Nebraska. Defendant reserves unto herself her statutory
right to answer, plead or demur.
Defendant further states that she has read the within Voluntary Appearance and
understands the same and that she executes it as her voluntary act and deed.
Defendant further states that she is not a member of the Armed Forces of the United States
and that she has not been ordered for induction into the same.
DATED this _______ day of ___________________, 2015.
___________________________________
_________________
WITNESS:
_______________________________
20
July 27, 2015
Name
Address
City, State Zip Code
PERSONAL & CONFIDENTIAL
Re:
________ v. ____________
Case No.: CI
Dear Ms. _____________:
I represent ___________________ in an action for dissolution of marriage. Enclosed
please find a copy of the Complaint for Dissolution of Marriage which is being filed in the District
Court; a Nebraska Parenting Act Information Brochure; and an original and one copy of a
Voluntary Appearance. Your husband has requested that I extend the courtesy of allowing you to
sign the Voluntary Appearance, rather than having a summons served upon you.
Please note that the Voluntary Appearance provides that you reserve the right to answer or
plead in this matter. Should you wish to sign the Voluntary Appearance, please do so on the line
above your name and return the original to my office within ten (10) days. I enclose a return
envelope for your convenience.
Please carefully read the Voluntary Appearance, noting its contents before signing it, and
return it to us at your earliest convenience. If you have any questions concerning this matter, you
should contact your attorney.
Sincerely,
Jill M. Mason
JMM:csc
Enclosures
cc: ______________
21
__________________,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
__________________,
Defendant.
CASE NO. CI 15-__________
PRAECIPE
Please issue a Summons in the above-entitled cause for personal service of the attached
copy of the Complaint for Dissolution of Marriage and the Nebraska Parenting Act Information
Brochure by the Sarpy County Sheriff upon the Defendant, _____________________. The
Defendant may be found at his residence as follows:
Name
Address
City, State Zip Code
DATED this ____ day of ______________, 2015.
DESIGNATE MODE OF SERVICE:
SHERIFF:
X
CERTIFIED MAIL: _____
_________________, Plaintiff
By:
22
Omaha, NE 68114
Telephone: (402) 905-2220
IN THE DISTRICT COURT OF DOUGLAS COUNTY, NEBRASKA
______________________,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
_____________________,
Defendant.
CASE NO. CI ___________
MOTION FOR LEAVE FOR
ALTERNATE SERVICE
COMES NOW the Defendant, _____________, and moves the Court for an Order
permitting the Defendant leave to serve the Plaintiff, ______________________, (the “Plaintiff”)
by alternate service. Defendant states the following in support of her Motion:
1.
Defendant filed a Complaint for Dissolution of Marriage in the above-captioned
matter on or about January 6, 2015.
2.
The Douglas County Sheriff’s Office has made numerous attempts to serve the
Plaintiff by personal service, but has been unsuccessful in such attempts.
3.
Pursuant to Neb. Rev. Stat. § 25-517.02 (1983), counsel for Defendant has attached
an Affidavit hereto as Exhibit A and incorporated herein by this reference.
4.
Defendant requests this Court enter an order allowing alternate service to perfect
service of the Plaintiff.
WHEREFORE, Defendant respectfully moves the Court for an Order in conformity with
the above; and for such other and further relief as the Court deems just and equitable in the
premises.
Dated this ____ day of February, 2015.
_______________, Defendant,
By:
23
____________________________________
Omaha, NE 68114
Telephone: (402) 905-2220
Facsimile: (402) 905-2224
Attorney for Defendant
__________________,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
_________________,
Defendant.
STATE OF NEBRASKA
COUNTY OF DOUGLAS
CASE NO. CI __________
AFFIDAVIT
)
) ss.
)
Jill M. Mason, being first duly sworn upon oath, deposes and states as follows:
1.
I represent the Defendant, ______________, in the above-captioned matter.
2.
Defendant filed a Complaint for Dissolution of Marriage in the above-captioned
matter on or about January 6, 2015.
3.
Subsequent to that date, the Douglas County Sheriff has attempted to serve the
Plaintiff, ________________, numerous times. However, such efforts have been unsuccessful,
and Affiant believes the Plaintiff may be avoiding service.
5.
On or about January 27, 2015, the Sheriff notified Affiant that service upon the
Plaintiff was unsuccessful.
FURTHER AFFIANT SAYETH NOT.
____________________________________
Jill M. Mason
SUBSCRIBED AND SWORN to before me this ____ day of January, 2015.
____________________________________
Notary Public
24
_____________________,
Plaintiff,
vs.
_____________________,
Defendant.
)
)
)
)
)
)
)
)
)
CASE NO. CI ______________
ORDER FOR ALTERNATE SERVICE
THIS MATTER came on for hearing upon the Defendant’s Motion for Leave for Alternate
Service.
The Court, being fully advised in the premises, finds that the relief sought by the Defendant
should be granted.
IT IS ORDERED, that the Defendant be allowed to serve the Plaintiff, _____________, by
alternate service. Service shall be made by Jeff Latka at General Delivery.
DATED this _____ day of __________, 2015.
BY THE COURT:
District Court Judge
PREPARED AND SUBMITTED BY:
Omaha, NE 68114
Telephone: (402) 905-2220
25
__________________,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
__________________,
Defendant.
CASE NO. CI 15-___________
ANSWER AND
COUNTER-COMPLAINT
COMES NOW the Defendant, _____________, and in response to Plaintiff’s Complaint
for Dissolution of Marriage (the “Complaint”) filed herein, admits, denies, and alleges as follows:
ANSWER
1.
The Defendant admits the allegations contained in paragraphs I – III, V, VII, VIII,
and X of the Plaintiff’s Complaint.
2.
The Defendant denies the allegations contained in paragraphs IV, VI, XI – XIV of
the Plaintiff’s Complaint.
3.
The Defendant admits that the Plaintiff and Defendant are both fit and proper
persons to have the care custody and possession of the minor children of the parties as alleged in
paragraph IX of Plaintiff’s Complaint, but the Defendant denies all other allegations contained in
paragraph IX of Plaintiff’s Complaint.
4.
The Defendant denies the remainder of the Complaint, except those allegations
which may be against the Plaintiff’s interests.
WHEREFORE, the Defendant prays for the Court to enter an Order providing for a
dissolution of the parties’ marriage; equitably dividing the assets and liabilities of the marital
estate; and for such other and further relief as the Court deems just and equitable in the premises.
COUNTER-COMPLAINT
COMES NOW __________________, Defendant, and for his Counter-Complaint, states
as follows:
1.
The Plaintiff is a resident of Omaha, Douglas County, Nebraska. The Defendant is
a resident of Omaha, Douglas County, Nebraska.
26
2.
The Defendant has been a resident of the State of Nebraska for more than one (1)
year prior to the filing of this Complaint.
3.
The parties were married on March 12, 2005, in Daleville, Alabama.
4.
Neither Plaintiff nor Defendant is now a party to any other pending action for
divorce, dissolution, or legal separation.
5.
The Defendant is a member of the United States Army. The Plaintiff is not a
member of the Armed Forces of the United States of America or its allies, nor has she been directed
to report for induction therein.
6.
The Defendant does not believe that reasonable efforts to reconcile the marriage
have been made, but the Defendant files this Counter-Complaint to preserve his legal rights.
7.
The parties are the parents of two (2) minor children, the custody of whom may be
affected by these proceedings, to wit: _____________, born 2009; and ____________, born 2011.
8.
Plaintiff and Defendant are fit and proper persons to be awarded the permanent
care, custody and control of the minor children of the parties. Plaintiff and Defendant should be
awarded joint legal and joint physical custody of the minor children.
9.
Child support should be awarded according to the Nebraska Child Support
Guidelines.
10.
Pursuant to the Nebraska Child Custody Jurisdiction Act, Defendant states that the
name and present address of the minor children affected by these proceedings, together with the
places the minor children have lived from the date of birth or for the past five (5) years, are as
follows:
Child
Location
Dates lived at location
____________
______________
April 2014 to Present
______________
Birth to April 2014
____________
11.
The minor children have resided with the Plaintiff and/or Defendant since their
birth. No person not a party to this action has physical custody of the minor children or claims to
have custody or visitation rights with respect to the minor children.
27
12.
During the marriage, the parties have incurred certain debts, and an equitable
division thereof should be made.
13.
During the marriage, the parties have acquired certain property and assets (real,
personal and mixed), and an equitable division thereof should be made.
14.
This matter should be heard by a District Court Judge.
15.
There is no adequate remedy at law.
WHEREFORE, the Defendant prays for the Court to enter an Order dissolving the marriage
of the parties; an order awarding the parties joint legal and joint physical custody of the minor
children; awarding child support according to the Nebraska Child Support Guidelines; equitably
dividing the assets and liabilities of the marital estate; and for such other and further relief as the
Court deems just and equitable in the premises.
_________________, Defendant
By:
______________________________________
Omaha, NE 68114
Telephone: (402) 905-2220
Facsimile: (402) 905-2224
CERTIFICATE OF SERVICE
It is hereby certified that a copy of the above and foregoing was delivered via regular
United States Mail, postage prepaid, addressed to the individual named below, on this __ day of
__________, 2015:
Kelle J. Westland
KELLE J. WESTLAND LAW OFFICE, P.C., L.L.O.
John D. Wear Building
7602 Pacific St., Ste. 102
Omaha, NE 68114
__________________________________
Jill M. Mason
28
_______________________,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
_______________________,
Defendant.
CASE NO. CI ________
MOTION FOR LEAVE TO FILE
ANSWER OUT OF TIME
COMES NOW the Defendant, ___________________, by and through her attorney, Jill
M. Mason, of Kinney Law, P.C., L.L.O., and hereby request that she be allowed to file an Answer
out of time. Said Answer is attached hereto, marked as Exhibit A and incorporated herein by this
reference.
WHEREFORE, the Defendant prays that the Court allow the filing of an Answer in the
above-captioned matter.
Dated this 14th day of July, 2014.
___________________, Defendant
By:
____________________________________
Omaha, NE 68114
Telephone: (402) 905-2220
Facsimile: (402) 905-2224
NOTICE OF HEARING
TO:
_____________, Plaintiff, and Adam Astley, His Attorney:
YOU are hereby notified that a hearing on the Defendant’s Motion for Leave to File an
Answer Out of Time has been scheduled before the Honorable Gregory M. Schatz, Fifth Floor,
Courtroom No. 501, Douglas County Courthouse, 1701 Farnam Street, Omaha, Nebraska, on the
22nd day of July, 2014 at 1:15 p.m., or as soon thereafter as counsel may be heard.
29
United States Mail, postage prepaid, addressed to the individual named below, on this 14th day of
July, 2014:
Adam E. Astley
SLOWIACZEK, ALBERS & ASTLEY, P.C., L.L.O.
100 Scoular Building
2027 Dodge Street
Omaha, NE 68102
__________________________________
Jill M. Mason
30
_____________________,
Plaintiff,
vs.
____________________,
Defendant.
)
)
)
)
)
)
)
)
)
CASE NO. CI 15-________
MOTION FOR TEMPORARY
CUSTODY AND ALLOWANCES
COMES NOW the Plaintiff, ___________________, and moves the Court for an Order
granting her the following relief:
A.
Awarding the Plaintiff and Defendant joint legal custody and the Plaintiff physical
custody of the minor children of the parties;
B.
Requiring the Defendant to pay a reasonable amount as temporary child support in
accordance with the Nebraska Child Support Guidelines;
C.
Requiring the Defendant to maintain the Plaintiff and the parties’ minor children
on the health insurance provided through Defendant’s employer;
D.
Apportioning uninsured health care expenses for the minor children between the
parties;
E.
Requiring the Defendant to pay the Plaintiff temporary alimony;
F.
Prohibiting the parties from transferring, encumbering, hypothecating, concealing
or disposing of any real or personal property except in the usual course of business
or except for the necessities of life;
G.
Providing for an equitable distribution of the debts and obligations of the parties
during the pendency of this action; and
H.
For such other and further relief as the Court deems just and equitable.
31
___________________, Plaintiff,
By:
_________________________________
Omaha, NE 68114
Telephone: (402) 905-2220
Facsimile: (402) 905-2224
NOTICE OF HEARING
TO:
____________________, Defendant, and Richard J. Henkenius, His Attorney:
YOU are hereby notified that a hearing on the Plaintiff’s Motion for Temporary Custody
and Allowances has been scheduled before the Honorable Gregory M. Schatz, Fifth Floor,
Courtroom No. 501, Douglas County Courthouse, 1701 Farnam Street, Omaha, Nebraska, on the
22nd day of July, 2015 at 1:15 p.m., or as soon thereafter as counsel may be heard.
July, 2015:
Richard J. Henkenius
The Douglas Building
209 South 19th Street, Suite 400
Omaha, Nebraska 68102
________________________________
Jill M. Mason
32
________________________,
Plaintiff,
vs.
_______________________,
Defendant.
)
)
)
)
)
)
)
)
)
CASE NO. CI 15-____________
TEMPORARY ORDER
THIS MATTER came before the Court on the Plaintiff’s Motion for Temporary Custody
and Allowances and the Defendant’s Motion for Temporary Child Custody and Child Support;
Temporary Allowances. The Plaintiff appeared and was represented by Jill M. Mason of KINNEY
LAW, P.C., L.L.O., 900 South 75th Street, Omaha, Nebraska 68114. The Defendant appeared and
was represented by Richard J. Henkenius, Suite 525 the Douglas Building, 209 South 19 th Street,
Omaha, Nebraska 68102.
Arguments were made by counsel and evidence was adduced. The Court being fully
advised in the premises, finds, orders and decrees as follows:
1.
The Court has jurisdiction over the parties hereto and the subject matter hereof.
2.
Custody/Parenting Issues. Plaintiff shall be awarded physical custody of the
parties’ minor children, to wit: ________________, born in 2010; and ________________, born
in 2012. The Defendant shall have temporary parenting time with the parties’ minor children every
other weekend commencing on Friday at 5:00 p.m. and concluding on Sunday at 9:30 p.m. or such
time as the Plaintiff gets off work, and every Wednesday commencing at 5:00 p.m. and concluding
on Thursday at 6:30 a.m. The Defendant shall pick up the minor children from the Plaintiff’s
residence or the Plaintiff’s parent’s residence at the commencement of his parenting time and
return the children to the Plaintiff’s residence at the conclusion of the Defendant’s parenting time.
3.
Child Support. The Defendant shall pay temporary child support to the Plaintiff
through the Nebraska Child Support Payment Center, P.O. Box 82600, Lincoln, Nebraska 685012600, in the sum of $675.00 per month, commencing on the first day of August, 2015, and
continuing on the first day of each month thereafter until further order of this Court.
4.
Day Care. Child care expenses for the children which are due to the employment
33
of the Plaintiff or the Defendant or to allow the parties to obtain training or education necessary to
obtain a job or enhance earning potential shall be paid as follows: The Plaintiff shall pay fifty
percent (50%) of the amount of such child care expenses, and the Defendant shall pay fifty percent
(50%) of such child care expenses. Each parent shall pay his or her share of such costs directly to
the care provider. If for any reason direct payment is not possible, whichever party pays the
expense shall, within ten (10) days of making the payment, present the other party with a receipt
which shall reflect the name of the care provider, the period of time which care was provided, and
the amount of the payment made for services. The owing party shall reimburse the other party for
his or her share of this expense within ten (10) days of receiving proof of payment.
5.
Health Insurance. The Defendant shall maintain the Plaintiff and the minor
children, including the Plaintiff’s daughter, ______________, from a previous relationship, on the
health insurance provided through his employment during the pendency of this matter, or until
further order of the Court.
6.
Uninsured Health Care Expenses. Plaintiff and Defendant shall each pay any of
their own uninsured medical expenses incurred individually and indemnify the other party on
same.
All nonreimbursed reasonable and necessary health care costs of the minor children,
including uninsured medical, dental, orthodontia, counseling, and optical expenses, shall be
addressed as follows: The Plaintiff shall pay fifty percent (50%) of such expenses and the
Defendant shall pay fifty percent (50%) of such expenses. The party incurring the medical expense
shall provide documentation to the other party of the uninsured medical expenses within thirty (30)
days of the benefits for said services being processed by the insurance company. The party
receiving such documentation shall remit his or her fifty percent (50%) share within fifteen (15)
days of his or her receipt of said documentation.
7.
Mutual Financial Restraining Order.
The parties shall be restrained and
enjoined from transferring, encumbering, hypothecating, concealing, or disposing of either real or
personal property of the parties other than in the usual course of business or other than for the
necessities of life, or until further order of this Court.
34
8.
Mutual Physical Restraining Order. The Plaintiff and the Defendant shall be
restrained and enjoined from harassing, intimidating, molesting or otherwise disturbing the peace
of the other party.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the above findings
shall be incorporated herein and shall be the Order of the Court.
IT IS FURTHER ORDERED that the Defendant shall be required to pay the Plaintiff
through the Nebraska Child Support Payment Center, P.O. Box 82600, Lincoln, Nebraska 685012600, temporary child support for the support and maintenance of the minor children of the parties,
in the sum of $675.00 per month, commencing on the first day of August, 2015, and continuing
on the first day of each month thereafter until further order of this Court.
IT IS FURTHER ORDERED that all child and medical support payments shall become
delinquent the day after they are due and owing, and interest shall not accrue until thirty (30) days
after the payments are delinquent and said interest shall be computed as simple interest.
IT IS FURTHER ORDERED that the Defendant is required to furnish to the Clerk of the
District Court of Douglas County, Nebraska, his address, telephone number, Social Security
number, the name of his employer, whether or not such person has access to employer-related
health insurance coverage and, if so, the health insurance policy information and any other
information the Court deems relevant until such judgment is paid in full. The Defendant is further
ordered to advise the Clerk of any changes in such information between the time of entry of this
Order and payment of the child support judgment in full; failure to comply with the provisions of
this section shall be punishable by contempt.
IT IS FURTHER ORDERED that in the event the Defendant fails to pay any child and/or
medical support payment, as such failure is certified to the Court each month by the District Court
Clerk in cases where Court-ordered child and/or medical support payment is delinquent in an
amount equal to the support due and payable for a one-month period of time, he shall be subject
to income withholding and may be required to appear before this Court on a date to be determined
by the Court and show cause why such payment was not made. In the event that the Plaintiff fails
to pay or appear as so ordered, a warrant shall be issued for his arrest.
35
Dated this _____ day of ______________, 2015.
BY THE COURT:
____________________________________
Omaha, NE 68114
Telephone: (402) 905-2220
APPROVED AS TO FORM:
__________________________________
Richard J. Henkenius, #11810
The Douglas Building
209 South 19th Street, Suite 525
Omaha, NE 68102
Telephone: (402) 341-3400
36
________________________,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
_______________________,
Defendant.
CASE NO. CI ____________
MOTION FOR EX PARTE ORDER
COMES NOW the Plaintiff, ________________, and moves the Court, based upon her
Affidavit, for the following:
1. An order, pursuant to Neb. Rev. Stat. § 43-1241(b) and the Court’s inherent power to
make determinations in the best interests of a minor child, awarding Plaintiff the
temporary exclusive custody, control, and possession of the minor child,
________________, age 7; and restraining the Defendant picking up the parties’ minor
child or taking possession of the minor child pending an evidentiary hearing to be held
at a date and time certain.
2. A Protective Order allowing for the immediate release of confidential records held by
the Nebraska Department of Health and Human Services related to ______________
as further set forth in the separate “Protective Order” submitted herewith.
WHEREFORE, Plaintiff requests that an ex parte order issue consistent herewith; and for
such other relief as the Court may deem just and equitable.
Dated as of this _____ day of May, 2015.
___________________, Plaintiff
By:
_______________________________
John A. Kinney, #20524
Omaha, NE 68114
Telephone: (402) 905-2220
Attorneys for Plaintiff
37
______________________,
Plaintiff,
vs.
______________________,
Defendant.
)
)
)
)
)
)
)
)
)
CASE NO. CI ____________
EX PARTE ORDER
THIS MATTER comes before the Court on Plaintiff’s Motion for an Ex Parte Custody
Order and his Affidavit presented to the Court therewith, wherein the Plaintiff stated emergency
reasons for a temporary ex parte custody order.
The Court, being fully advised in the premises, finds, that the relief sought by Plaintiff
should be granted.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Defendant shall
be restrained from removing the minor child at issue in this proceeding from the State of Nebraska
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that a hearing on this Order
be had before the Honorable William B. Zastera and shall take place on the _____ day of
_________________, 2015 at ___________:00 o’clock ____.m., Sarpy County Courthouse, 1210
Golden Gate Drive, Papillion, Nebraska, or as soon thereafter as counsel may be heard.
SIGNED this ________ day of ________________, 2015.
BY THE COURT:
_____________________________
DISTRICT COURT JUDGE
Omaha, NE 68114
Telephone: (402) 905-2220
38
______________________,
Plaintiff,
vs.
_______________________,
Defendant.
)
)
)
)
)
)
)
)
)
CASE NO. CI ___________
PARENTING PLAN
This Parenting Plan (hereinafter referred to as this “Plan”) was negotiated between
________________ (hereinafter the “Mother”), and _______________ (hereinafter the “Father”).
WHEREAS, the Father and Mother were married on the 3rd day of November, 2005 in Las
Vegas, Clark County, Nevada; and
WHEREAS, Father has filed a Complaint for the Dissolution of Marriage in the District
Court of Douglas County, Nebraska; and
WHEREAS, the parties have three (3) minor children, namely ____________, born in
2006, ________________, born in 2008, and ____________________, born in 2009; and
WHEREAS, each parent is aware of his and her right to be represented by legal counsel
and has had a full opportunity to seek counsel for purposes of entering into this Plan; and
WHEREAS, Father and Mother wish to have this Plan and the terms and conditions
contained herein approved by the Court and incorporated by the Court in a Decree of Dissolution
in the case of ____________________ appearing at Case No. CI ____________.
NOW, THEREFORE, Father and Mother mutually agree on the following:
1.
The best interests of the minor children will be maintained through appropriate
involvement of both the Father and the Mother in each child’s life.
2.
Father and Mother agree that each parent is a fit and proper person to be involved
in the parenting of the children.
3.
Father and Mother will remain active and appropriately involved in maintaining a
safe, stable, consistent, and nurturing relationship with their children.
4.
The overriding purpose of this Plan will be to establish custody, parenting times,
visitation, and other access arrangements to include apportionment of parenting time to be spent
39
with Father and Mother and to provide provisions for a remediation process regarding future
modifications of this Plan.
5.
Father and Mother understand that the needs of each child may change as the child
develops and they will interpret and apply this Plan in a way that best serves the evolving interests
of each child.
6.
The parties understand that this Plan anticipates that they will act in the best interest
of each “minor child” as defined by the Nebraska Parenting Act.
7.
The parties shall be awarded joint legal custody of the children, and as such both
parents shall exercise mutual authority and responsibility in making fundamental decisions
regarding each child’s welfare and mutually participate in the responsibility of providing the
parenting functions necessary for raising each child.
8.
The parties shall be awarded joint physical custody of the children. The parents
shall keep each other informed at all times of current addresses and phone numbers, and in the
event that either parent moves, the new address and any change in phone number, emails, or other
contact information shall be provided to the other parent prior to the move. A parent may not move
a child from Nebraska without court permission.
9.
Each parent shall have parenting time on a liberal and frequent basis, and the parties
do not anticipate the need for a structured schedule. However, in the event of disagreement,
parenting time with the children shall be as follows:
A.
Weekdays and Weekends.
Father and Mother shall have parenting time each
weekday and weekend as follows:
Week One
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
Sunday
Mother
Mother
Mother
Father at 4:00 p.m.
or when the
children are
released from
school
Father
Father
Father until
5:00 p.m.
Mother at
5:00 p.m.
40
Week Two
Monday Tuesday
Wednesday
Thursday
Friday
Mother
Mother
Father at 4:00 p.m.
or when the children
are released from
school
Father until Mother
8:00 a.m.
or the
commence
ment of
school
Mother
Saturday
Sunday
Mother
Father shall deliver the children to school, daycare, or Mother, whichever is appropriate
at the conclusion of his parenting time.
B.
Summer. The Father and Mother shall each have uninterrupted parenting time
with the minor children for three weeks per year. This parenting time can be used all at once or in
one week intervals. Father and Mother agree that they shall coordinate his or her anticipated
summer parenting times with the other parent, they shall cooperate with each other in planning
vacation times, and they shall notify the other parent at least 30 days in advance of the dates he or
she intends to exercise such parenting time. In the event that planned vacation times overlap,
Mother shall have first choice in odd-numbered years, and Father shall have first choice in evennumbered years. Vacation time shall not infringe upon the other parent’s holiday parenting time
dates. Vacation time may not be tacked onto weekend or holiday parenting time without prior
consent of the other parent. When vacation time includes leaving Nebraska for out of state travel,
telephone and address information shall be provided to the other parent.
C.
(1)
Holidays – Holidays shall prevail over the regular schedule of parenting time.
New Year’s Eve: This holiday shall commence on New Year’s Eve at 5:00 p.m.
and conclude on January 1st at 10:00 a.m. Father shall have the minor children in
odd-numbered years and Mother shall have the minor children in even-numbered
years.
(2)
New Year’s Day: This holiday shall commence on January 1st at 10:00 a.m. and
conclude on January 2nd at 10:00 a.m. Father shall have the minor children in evennumbered years and Mother shall have the minor children in odd-numbered years.
(3)
Easter: Due to its religious nature, parenting time during this holiday shall be
shared between both parties and shall be organized around religious services and
41
family gatherings. However, for purposes of time spent with the parent whose
holiday it would be under this agreement, the holiday will begin on Good Friday at
5:00 p.m., and end on the Monday following Easter Sunday at 8:00 a.m. Father
shall have the minor children in odd-numbered years and Mother shall have the
minor children in even-numbered years.
(4)
Memorial Day Weekend: This holiday shall commence on Friday at 5:00 p.m. and
conclude on Tuesday at 8:00 a.m. following Monday, Memorial Day. Father shall
have the minor children in even-numbered years and Mother shall have the minor
children in odd-numbered years.
(5)
Fourth of July: This holiday shall commence on July 3rd at 5:00 p.m. and conclude
on July 5th at 8:00 a.m. Father shall have the minor children in odd-numbered years
and Mother shall have the minor children in even-numbered years.
(6)
Labor Day Weekend: This holiday shall commence on Friday at 5:00 p.m. and
conclude on Monday, Labor Day, at 8:00 a.m. Father shall have the minor children
in even-numbered years and Mother shall have the minor children in odd-numbered
years.
(7)
Halloween:
This holiday shall commence on October 31st at 5:00 p.m. and
conclude the next morning at 8:00 a.m. Father shall have the minor children in
odd-numbered years and Mother shall have the minor children in even-numbered
years.
(8)
Thanksgiving: This holiday shall commence on Wednesday at 5:00 p.m. and
conclude on Monday at 8:00 a.m. following Thanksgiving weekend. Father shall
have the minor children in odd-numbered years and Mother shall have the minor
children in even-numbered years.
(9)
Christmas Eve: Christmas Eve shall commence at 8:00 a.m. and conclude on
Christmas Day at 12:00 p.m. Father shall have the minor children in odd-numbered
years and Mother shall have the minor children in even-numbered years.
(10) Christmas Day: Christmas Day shall commence at 12:00 p.m. and conclude at 8:00
a.m. December 26th. Father shall have the minor children in even-numbered years
and Mother shall have the minor children in odd-numbered years.
42
D.
The parent whose holiday time is commencing will provide transportation for the
children at the beginning of the holiday, and the other parent will provide
transportation for the children when the holiday time has concluded. If it is
appropriate, Mother/Father shall deliver the children to their school/day care by
8:00 a.m.
E.
Mother’s Day. The children shall spend Mother’s Day with Mother, which shall
commence on the Sunday on which the Mother’s Day holiday is nationally
observed at 8:00 a.m. and conclude at 8:00 a.m. the day following Mother’s Day.
F.
Father’s Day. The children shall spend Father’s Day with Father, which shall
commence on the Sunday on which the Father’s Day holiday is nationally observed
at 8:00 a.m. and conclude at 8:00 a.m. the day following Father’s Day.
G.
Any vacation parenting time or holiday parenting time that results in the parent
having two consecutive weekends shall reset the alternating weekend schedule such
that the other parent shall have parenting time on the third weekend, and the
weekend and weekday parenting times shall alternate according to the plan from
the weekend parenting time; or, if agreed upon by both parents, because of the
parents’ work schedules, the alternating weekends shall remain the same even if
one parent receives three weekends consecutively as a result of vacation or holiday
parenting time.
H.
Other holidays, birthdays, and significant dates may be celebrated by mutual
agreement of Father and Mother consistent with the best interests of the children.
The parties agree that holidays are important to both parents and children, and the
parties agree that they shall work with the other parent to provide parenting time
with the children on every holiday.
I.
The above terms concerning parenting time and access to each child may be
adjusted or temporarily modified in length, timing, or terms upon reasonable
advance notice, communication, and agreement between Father, Mother, and
children when appropriate.
J.
Both parents acknowledge the responsibility to exercise and provide parenting time
and that time is of the essence in exercising and providing parenting time. Each
43
parent shall use reasonable diligence to notify the other in a timely manner when
he or she will be delayed, late, or unable to exercise or provide parenting time
within the time frames provided by this agreement. Fifteen minutes is a reasonable
time for a parent to wait when picking up or receiving the children from the other
parent.
K.
Each parent shall be responsible for providing his or her parents and extended
family with access to the children during that parent’s time with the children.
10.
Each parent shall notify the other parent of any out of state travel with the minor
children.
11.
One parent may not plan or schedule activities for the children during the parenting
time of the other parent, without prior communication, reasonable notice, and consent of the other
parent.
12.
The parents shall discuss matters concerning the children, such as health and
medical, school related problems and decisions, and any behavioral or disciplinary issues with
could impact both households, etc. Mutual discussions of major decisions may be encouraged only
when safe and appropriate for the children’s best interest.
13.
Father and Mother agree that they shall allow each other, and each child, to have
access to telephone, email, texting, and other media contact with the other parent while not residing
with that parent. Each parent shall have the same amount of telephone time with the children. The
parent with whom the children are staying at any one time shall allow and/or assist in initiating a
telephone call or receiving a call from the other parent and will not unreasonably interfere with
such access.
14.
Father and Mother shall inform one another reasonably in advance of each child’s
events where a parent may participate in the child’s activities or events (for example, school plays,
teacher conferences, sporting events, music recitals, et cetera). Notice shall be provided in such a
way that the other parent has the maximum opportunity to attend that activity or event.
15.
Father and Mother acknowledge the statutory responsibility to provide each child
with regular and continuous school attendance and progress and will assist each child to the
maximum extent possible to assure a quality education. Each parent shall provide the other parent
with information related to educational achievements and deficiencies of the children. Father and
44
Mother shall notify each other, reasonably in advance, of any events, occurrences, or decisions
relevant to the child’s education, to include without limitation: content of curricula changes,
changes of school, testing related to post high school education, and events related to the decision
or selection of college education.
16.
All school, medical, dental, counseling, and other records will be available and
accessible to both Father and Mother without assistance from the other parent. The names of both
parents shall appear on all medical, dental, and school records, and on other documents maintained
on behalf of the parties’ minor children. Each parent is responsible for notifying the school that
he or she is to be included on mailing lists and is to be notified of conferences and events, provided
report cards, progress notes, and other pertinent information.
17.
Either Father or Mother may authorize emergency medical, dental, optical, or
orthodontia procedures in situations affecting the immediate health or safety of each child.
18.
Decisions regarding the day-to-day care of each child will be made by the parent
with whom the children are residing at the time.
19.
Father and Mother shall assist each child in maintaining a positive relationship with
the other parent and with extended family members. Neither Father nor Mother, or any other
person in the presence of the parties’ minor children, shall engage in any conduct which creates a
negative image or leads to the development of a negative relationship with the other parent and
his/her family. Father and Mother shall discourage any actions tending toward the children’s
violation of or lack of cooperation in implementing this plan. All communication about each child
shall be conducted between the biological parents only, regardless of future relationships.
20.
To resolve future changes or conflicts regarding parenting functions, parenting
time, or this plan, the parents shall first seek solutions through mutual agreement by indentifying
the issues, providing an opportunity for exchange of information, providing an opportunity for the
consideration of proposed solutions to the issues in a way which minimizes the exposure of each
child to parental conflict. The parents shall attempt to minimize repeated litigation and utilize
judicial intervention as a last resort by use of the mediation process outlined in the Nebraska
Parenting Act, prior to resorting to the court system.
21.
Father and Mother agree that continued, meaningful, and frequent communication
between them and each child is necessary for this plan to be successful. Father and Mother shall
45
encourage and foster communication between themselves and the children in order to define and
meet the “parenting functions.”
22.
The parents will keep each other informed at all times of current addresses and
phone numbers. When a parent moves, the new address shall be provided to the other parent prior
to the move. A parent may not move a child from Nebraska without permission of the Court.
23.
This plan shall expire when the terms are no longer effective with respect to any
individual child. It may be terminated prior to a child reaching the age of majority only upon
agreement of Father and Mother and with the approval of the Court.
___________________________
Father
________________________________
Mother
Date: ______________________
Date: ____________________________
46
__________________,
Plaintiff,
vs.
___________________,
Defendant.
TO:
)
CASE NO. CI _____________
)
)
) INTERROGATORIES AND REQUESTS
) FOR PRODUCTION OF DOCUMENTS
)
)
)
)
________________, Defendant, and Michael F. Pistillo, her attorney.
YOU ARE HEREBY NOTIFIED that you are required to answer separately and in writing,
under oath, the following Interrogatories within thirty (30) days from the date of service of a copy
of the same upon you pursuant to § 6-333 of the rules promulgated by the Nebraska Supreme Court
for discovery in all civil cases.
YOU ARE FURTHER NOTIFIED that you are required to seasonably supplement your
responses to these Interrogatories pursuant to § 6-326(e) of the Nebraska Court Rules of Discovery
in Civil Cases.
In preparing your Answers to these Interrogatories you are required to furnish all
information available to you or available by reasonable inquiry, including information in the
possession of your attorneys, investigators, agents, representatives or any other person acting in
your behalf.
If information or material otherwise discoverable is withheld upon a claim of privilege or
subject to protection as trial preparation material, in addition to making such claim, describe the
nature of the documents, communications, or things not produced or disclosed in a manner that,
without revealing information itself privileged or protected, will enable us to assess the
applicability of the privilege or protection.
If you cannot answer any of the following Interrogatories in full after exercising due
diligence to secure the information to do so, so state and answer to the extent possible specifying
your inability to answer the remainder and providing whatever information or knowledge you have
concerning the unanswered portion.
Each Interrogatory that is divided into subparts is to be answered separately as to each
subpart, rather than in a single statement or paragraph which is intended to encompass the response
to all subparts contained in the Interrogatory.
INTERROGATORIES
INTERROGATORY NO. 1: Please state the highest level of education achieved by you,
and any experience you possess which enhances your earning potential.
ANSWER:
INTERROGATORY NO. 2:
Please state your present employment, business or
occupation and the name and address of your employer.
ANSWER:
INTERROGATORY NO. 3: Please state the days and hours you work. If you have
overtime, bonuses, commission pay or other incentive pay describe the history of such
pay/compensation over the last three tax years and any expectations/formula for such pay/benefits
in the future.
ANSWER:
INTERROGATORY NO. 4: Please state the monthly compensation you receive from
your present business or occupation.
ANSWER:
INTERROGATORY NO. 5: Please list all benefits of whatsoever nature available to you
through your current employer in addition to your salary/pay/bonus/commission (this includes
stock, health insurance, auto, life insurance, etc.).
ANSWER:
INTERROGATORY NO. 6: List all employers you have had in the last three years and
the reasons you left such employment/were terminated.
ANSWER:
48
INTERROGATORY NO. 7: Do you believe you are entitled to an award of alimony? If
so, please state each reason you believe you are entitled to such an award.
ANSWER:
INTERROGATORY NO. 8: Please state the face amount of the benefits payable and the
cash value as of the present date under any life insurance policy you or own.
ANSWER:
Please name the health insurance provider currently
providing health insurance for you and describe who is covered under such policy in addition to
you. Identify the monthly premium amounts payable for said coverage specified so that the costs
for you, your spouse, and a minor child or children are identified.
ANSWER:
INTERROGATORY NO. 10: If you own (or have owned) an interest in any business,
partnership, sole proprietorship, or corporation which is not a publicly traded entity, please state
the name of the entity and your ownership interest.
ANSWER:
If you have any retirement plan, pension plan,
profit-sharing plan or fund, deferred compensation plan, employee stock ownership fund, 401(k)
or 403(b) plan, thrift or savings plan, IRA or any other type of retirement plan of whatsoever
nature, for each such plan or fund, please state:
(a)
The name or a description of the fund/account; and
(b)
The present balance of your interest in the fund/account.
ANSWER:
INTERROGATORY NO. 12: If you own an interest in any publicly traded corporations,
bonds, mutual funds, investments, treasury notes, warrants, debentures, stock options, any mutual
funds, limited or general partnership interests, stock grants, employee stock ownership plans or
any other investments or non-retirement assets not otherwise described in response to other
49
Interrogatories herein, whether held by you or by a broker, dealer, or otherwise, with respect to
each, please state:
(a)
A description of the asset; and
(b)
The last known market value thereof.
ANSWER:
INTERROGATORY NO. 13: Identify all significant assets owned by you or your spouse
(individually, jointly or otherwise) on the date you and your spouse were married.
ANSWER:
Please list all institutions where you have
placed/deposited/invested funds and/or money in the last three years. State the current balance for
each account held at each institution.
ANSWER:
INTERROGATORY NO. 15: Describe all assets received by you or your spouse as a
gift or inheritance (not including gifts between Plaintiff and Defendant) during the marriage in
excess of $100.00.
ANSWER:
INTERROGATORY NO. 16: List the contents of any safe deposit box you have
maintained/rented since the date of your marriage.
ANSWER:
INTERROGATORY NO. 17: Does anyone owe you any money? If so, please state the
amount owed and the conditions for payment of the obligation.
ANSWER:
INTERROGATORY NO. 18: Please set forth any expenses you have paid on behalf of
any third party or person in the last two (2) years, including in your answer any bills you pay or
have paid on behalf of anyone else or for their benefit.
50
ANSWER:
Please itemize all personal property (i.e., furniture,
jewelry, guns, tools, collector’s items, campers, recreational vehicles, boats, trailers, motorcycles,
or any other pleasure craft or vehicle of any sort, and other items of value) owned by you and/or
your spouse, and provide your opinion of the value of each item.
ANSWER:
INTERROGATORY NO. 20: Please list all your present creditors, and the amount owed
each such creditor.
ANSWER:
INTERROGATORY NO. 21: If you claim that you contributed to the increase in value
of any asset owned by your spouse prior to the marriage, or received by your spouse by gift or
inheritance during the marriage, describe your contribution and the value of your contribution.
ANSWER:
INTERROGATORY NO. 22: Please itemize your current total monthly living expenses.
ANSWER:
Describe all assets or funds or cash over $100.00
transferred or gifted to persons other than your spouse since the date of your marriage and the
reasons for said transfer. This includes but is not limited to gifts of jewelry, lodging expenses,
vacations, and/or meals.
ANSWER:
INTERROGATORY NO. 24: With reference to each person whom you believe has
knowledge of any facts which support or refute the allegations of either party in this matter, please
state:
(a)
The name and address of each such person; and
51
(b)
The specific knowledge you believe such person possesses that would be relevant
to this lawsuit.
ANSWER:
INTERROGATORY NO. 25: With reference to each person whom you expect to call as
an expert witness at trial or any hearing of this matter, please state:
(a)
The name, address, and occupation of each such expert; and
(b)
The subject matter on which each such expert is expected to testify.
ANSWER:
INTERROGATORY NO. 26: For each parcel of real estate owned by you or your spouse,
please describe the real estate, any mortgage balance, and your opinion of the value of the real
estate.
ANSWER:
INTERROGATORY NO. 27: In answering these Interrogatories, have you disclosed or
identified all assets or items of value which you own or in which you have an interest, whether
titled in your own name or in another person’s name?
ANSWER:
INTERROGATORY NO. 28: State in detail what you consider to be the best custodial
arrangements for your children and why.
ANSWER:
INTERROGATORY NO. 29: State whether you and your spouse have any major
disagreements concerning your minor children, and, if so, detail the nature of each disagreement.
ANSWER:
INTERROGATORY NO. 30: Is there anything about your spouse that renders him unfit
to be afforded an award of physical custody of the children? If so, describe with specificity this
unfitness.
ANSWER:
52
INTERROGATORY NO. 31: State the name of any doctor and/or mental health
practitioner who has treated you in the last five years.
ANSWER:
53
REQUEST FOR PRODUCTION OF DOCUMENTS
You are hereby requested to produce for inspection and copying the following documents,
within thirty (30) days of your receipt of this Request, at the law offices of KINNEY LAW, P.C.,
L.L.O., 900 South 75th Street, Omaha, Nebraska 68114:
DEFINITION
“Document” means the original, any draft thereof, any nonidentical copy (which is
different from the original of any copy because of the notations thereon or attached thereto or
otherwise) of any written, printed, typewritten, handwritten, or recorded matter, however
produced, reproduced or recorded, including without limitation, letters, telegrams, telexes,
memoranda, reports, studies, surveys, diaries, minutes, maps, pamphlets, notes, charts, calendars,
tabulations, analyses, bank records, loan agreements, promissory notes, mortgages, security
agreements, income tax records, statistical information or accumulations, records of meetings and
conversations of any kind, film impressions, magnetic tape, sound or mechanical reproductions,
contracts, drafts of contracts, purchase orders, invoices, advertisements, receipts, drawings,
voucher and telephone records. In all cases where originals or nonidentical copies are not
available, “document” also means identical copies of originals and copies of nonidentical copies.
1.
State and Federal Income Tax Returns, including W-2s, K-1s, 1099s, and all
supporting schedules, for the last two tax years and the most recently completed tax year. This
applies to personal, corporate, partnership or foreign tax returns.
2.
Copies of your pay stubs for the last three (3) months and a copy of the most recent
W-2 issued by your employer.
3.
Copies of bank statements for any bank account you have had in the last year.
4.
Any and all documents relating to any retirement plan of whatsoever nature in
which you or your spouse have an interest.
5.
For any stock plan, stock option plan, or other benefit related to your employment,
provide copies of the plan document and/or any documents showing value or benefits. For any
stock plan or stock option plan, provide a vesting schedule or any other documents showing the
terms of such plan.
6.
Copies of any documents explaining or describing any benefits that you are eligible
for at your current place of employment, including but not limited to any retirement benefits, health
insurance plans, day-care or child care benefits, savings plans, or stock purchase plans,
54
employment contract(s) or other agreement(s), and documents showing stock options granted or
allocated to you, whether vested or unvested, and regardless of the date(s) for said allocation.
7.
With respect to personal property valued at more than $500.00 you identified in
your Answers to Interrogatories: invoices, receipts, sales slips, appraisals, titles, lien documents,
and loan documents.
8.
With respect to real property, deeds, appraisals, mortgage balance statements, and
loan documents.
9.
Any and all documents relating to any life insurance, including but not limited to
documents which show cash surrender value or market value and face value.
10.
Any and all documents which evidence ownership of any stocks, bonds, mutual
funds, or other investments (or any other asset identified in your Answers to Interrogatories), and
their past or present value, including but not limited to the most recent statement from any
brokerage account that you may have individually or jointly with others.
11.
With respect to any vehicle identified in your Answers to Interrogatories: any
documents showing the current loan balance, if any; any invoices or sales receipts showing the
purchase price of the vehicle(s); any documents showing the make, model, and year of said
vehicle(s); any documents relating to any lease agreement related to said vehicle; any document
evidencing the options/features purchased for said vehicle; and any documents showing a current
value for said vehicle.
12.
With respect to any property claimed by you to be owned before the marriage,
gifted to you during the marriage, or inherited by you during the marriage, copies of any documents
showing the current location of said asset(s), any checks or other instruments showing the transfer
of ownership or vesting into your name, any will, trust, or other estate-planning instrument
showing any gift or inheritance, and any other documents tracing or documenting the transfer of
the asset(s) into your name and tracing or documenting any subsequent transfer(s) of said asset.
13.
Any and all financial statements prepared by you, including financial summaries
prepared using Quicken, Microsoft Money, or other personal financial software, and any
documents which evidence budgets, cash projections, and other financial documents in your
possession, whether prepared for submission to banks, lending institutions, or any persons or
entities, or for personal money management which were prepared by you or on your behalf at any
time during the last year.
55
14.
If you own an interest in a closely held business, provide income statements,
balance sheets, and any other standard accounting documents which are part of your business and
provide an electronic copy of the journal or ledger and/or other data related to the business stored
in any accounting software used by your business.
15.
Loan applications and statements of loan accounts for all loans applied for, whether
approved or not, for the last year.
16.
Credit card statements, line-of-credit statements and any other loan statements or
documents from the date of marriage to the date of your responses to this request. Documents
reflecting all debts owed to you or by you, secured and unsecured, including personal loans and
lawsuits now pending or previously filed in any court, showing the name of the debtor and/or
creditors, the date each debt was incurred, the total amount, and the unpaid balance.
17.
Wills and trust agreements executed by you or in which you have a present or
contingent interest or in which you are named beneficiary, trustee, executor, or guardian and which
are now in existence or which existed from the date of marriage, including inter vivos trusts (those
made while the parties are living). All records of declaration of trust and minute books for all trusts
to which you are a party, including the certificates, if any, indicating such interest and copies of
all statements, receipts, disbursements, investments, and other transactions.
18.
Partnership, employment and joint venture agreements to which you have been a
party during the marriage.
19.
If not already described in your pay stubs, employment records for the last year,
showing evidence of bonuses/commission or incentive pay.
20.
Fringe benefits records serving as evidence of any benefits available to you from
any employment or business in which you have an interest, including, without limitation, auto,
travel, entertainment, educational, and personal living expenses.
21.
Employment contracts under which you are performing services and/or rendering
merchandise or materials, or under which someone is indebted to you for services and/or
merchandise and materials, already furnished during the past year, including a list describing any
oral contracts.
22.
All records pertaining to gifts of any kind over the amount of $100.00 made to you
or by you to any person or entity, together with all records in connection with the transfer of
personal property, by sale, gift, or otherwise, during the marriage.
56
23.
Medical bills, prescriptions, evaluation reports, notes, or diagnoses for mental
health treatment received during the last year.
24.
Tapes, recordings, or any other stored communications of whatsoever nature, and
photographs and all written memorandums, reports, and photographs related to this case in
whatever manner.
24.
Any statements you have taken, recorded, saved, stored and/or have otherwise
secured related in any way to any fact at issue in this case.
25.
Any document related in any way to any surveillance or evidence gathering you or
anyone at your direction has performed related in any way to this case.
26.
All e-mails, texts, and photographs which are related in any way to any fact at issue
in this case.
27.
Any reports, draft or otherwise, provided to you, your lawyer, or anyone else who
is subject to your control or direction, related in any way to any issue in this case.
28.
Any receipts, invoices, canceled checks, or documents related to your claim that
you contributed to the increase in value of any asset owned by your spouse prior to the marriage
or received by your spouse by gift or inheritance during the marriage.
_______________, Plaintiff
By:
57
____________________________________
Omaha, NE 68114
Telephone: (402) 905-2220
Facsimile: (402) 905-2224
_________________,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
__________________,
Defendant.
CASE NO. CI ___________
MOTION TO COMPEL
COMES NOW Plaintiff, _____________, and moves the Court for an Order compelling
Defendant, __________________, to answer Interrogatories and to respond to Requests for
Production of Documents. In support of her Motion, Plaintiff states as follows:
1.
On the 5th day of May, 2015, Plaintiff’s counsel served Interrogatories and Requests
for Production of Documents upon Defendants by mailing the same by first-class mail to
Defendant’s counsel. Notice of Serving Interrogatories and Requests for Production of Documents
is attached hereto as Exhibit A and incorporated herein by this reference.
2.
To date, Plaintiff has not received Defendant’s answers to Interrogatories or
responses to Requests for Production of Documents. More than 30 days have passed from the time
discovery was served on Defendants.
WHEREFORE, Plaintiff prays for an Order of the Court compelling Defendant to answer
Interrogatories and to respond to Requests for Production of Documents; for attorney’s fees
incurred in the filing of this Motion; and for such other and further relief as the Court deems just
and equitable.
DATED: July 21, 2015.
_____________, Plaintiff
By:
_______________________________
Jill M. Mason, # 23960
Omaha, NE 68114
Telephone: (402) 905-2220
Attorneys for Plaintiff
58
NOTICE OF HEARING
TO:
______________, Defendant, and their Attorney, Theodore R. Becker, Jr.
YOU AND EACH OF YOU are hereby notified that a hearing on the Plaintiff’s Motion to
Compel has been scheduled before the Honorable Timothy P. Burns, Fifth Floor, Courtroom No.
502, Douglas County Courthouse, 1701 Farnam Street, Omaha, Nebraska, on the 13th day of
August, 2015 at 2:30 p.m., or as soon thereafter as counsel may be heard.
I, the undersigned, do hereby certify that a copy of the foregoing document was sent by the
United States mail, postage prepaid, to the following named individual on this ___ day of July,
2015:
Theodore R. Boecker, Jr.
BOECKER LAW, P.C., L.L.O
1125 Davenport Street, Suite 100
______________________________
Jill M. Mason
59
__________________,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
________________,
Defendant.
CASE NO. CI ___________
NOTICE OF INTENT TO SERVE
§ 6-334(A) SUBPOENA
Pursuant to Neb. Rev. Stat. § 25-1273 (2001) and Neb. Ct. R. Disc. § 6-334(A), you are
hereby notified that ten (10) days after the date of mailing this notice, or July 24, 2015 the
undersigned will issue and serve the attached subpoena on the individual indicated thereon.
The name and address of the person who will be subpoenaed, the materials sought to be
produced, and the time and place of production and inspection are as set forth on the attached
subpoena. All documents to be produced will be sent to the undersigned attorney at the address
listed below ten (10) days after the subpoena is issued, or August 3, 2015. Upon receipt of such
documents, the undersigned will make them available for inspection and copying by any other
party.
No oral testimony will be taken from the individual named in the subpoena, and no personal
appearance by counsel for any party is anticipated or required. A copy of Rule § 6-334(A) is
attached to the subpoena.
Dated this 14th day of July, 2015.
______________, Plaintiff
By:
__________________________________
Omaha, NE 68114
Telephone: (402) 905-2220
60
It is hereby certified that a copy of the above and foregoing Notice was delivered via regular
July, 2015:
Donald A. Roberts
LUSTGARTEN & ROBERTS, P.C., L.L.O.
North Tower #601
Omaha, NE 68102
_______________________________
Jill M. Mason
61
_________________________,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
__________________________,
Defendant.
TO:
CASE NO. CI ________________
§ 6-334(A) SUBPOENA
_______________________________________________________________________
Pursuant to the authority granted by Neb. Rev. Stat. § 25-1273 and Neb. Ct. R. Disc. § 6-
334(A), YOU ARE HEREBY COMMANDED TO DELIVER TO: Jill M. Mason of KINNEY
LAW, P.C., L.L.O., 900 South 75th Street, Omaha, Nebraska 68114, on or before September 20,
2015, at 2:00 p.m., as evidence in the above-entitled action, true, complete and correct photocopies
of the following:
All information and documentation for _______________________ (SSN: xxx-xx-xxxx)
regarding hours worked including dates and times, compensation, salary, bonuses, and
allowances from January 1, 2015 to the present; copies of ______________ paystubs from
January 1, 2015 to the present; any W-2s; copies of any employment contracts from January
1, 2015 to the present for __________; all information, documentation, rules and records
regarding __________ ability to choose work hours; all records or documentation of any
fringe benefits, including health insurance benefits available to __________; documentation
of any performance reviews from January 1, 2015 to the present; and all records or
documentation of any disciplinary action from January 1, 2015 to the present.
Notice of this subpoena was served upon Donald A. Roberts, LUSTGARTEN & ROBERTS,
P.C., 1625 Farnam Plaza, Suite 900, Omaha, NE 68102. A copy of Rule § 6-334A is attached to
this subpoena.
I have issued this subpoena pursuant to the authority granted in Neb. Ct. R. Disc. § 6334(A).
__________________, Defendant
By:
______________________________
Omaha, NE 68114
Telephone: (402) 905-2220
62
________________,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
________________,
Defendant.
CASE NO. CI _______
NOTICE OF TAKING DEPOSITION
YOU WILL PLEASE TAKE NOTICE that on the 13th day of August, 2015, at 9:00 a.m.,
the Plaintiff will take the deposition of the Defendant, ____________, at the offices of KINNEY
LAW, P.C., L.L.O., 900 South 75th Street, Omaha, Nebraska 68114.
The taking of said deposition may be adjourned from day to day until completed, and shall
be administered by an officer qualified to administer oaths. Counsel for Plaintiff has secured the
services of a court reporter.
Dated this __ day of July, 2015.
______________, Defendant
By:
_______________________________
Omaha, NE 68114
Telephone: (402) 905-2220
It is hereby certified that a copy of the above and foregoing was delivered by regular United
States mail to the individual named below on this __ day of July, 2015:
Tracy Hightower-Henne
HIGHTOWER REFF LAW
1625 Farnam Street, Suite 830
____________________________________
Jill M. Mason
63
_____________________,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
____________________,
Defendant.
STATE OF NEBRASKA
COUNTY OF DOUGLAS
CASE NO. CI _________
CHILD SUPPORT AFFIDAVIT
)
) ss.
)
COMES NOW Jill M. Mason and, being first duly sworn upon his oath, represents to the
Court as follows:
1.
Counsel for the Plaintiff has calculated the attached child support based upon the
pay information available to her.
2.
The attached child support calculations are true and correct based upon the pay
stubs, tax returns, and other documentation available to counsel for the Plaintiff.
FURTHER AFFIANT SAITH NOT.
____________________________________
JILL M. MASON
The foregoing document was acknowledged before me on the ____ day of April, 2015, by
JILL M. MASON.
_____________________________________
Notary Public
RESPECTFULLY SUBMITTED:
Omaha, NE 68114
Telephone: (402) 905-2220
Facsimile: (402) 905-2224
64
_____________________,
Plaintiff,
vs.
______________________,
Defendant.
)
)
)
)
)
)
)
)
)
CASE NO. CI __________
PROPOSED DIVISION OF MARITAL ASSETS
VEHICLES AND LIFE INSURANCE
Asset
Equity
Plaintiff
Defendant
INVESTMENT/RETIREMENT/PENSION ACCOUNTS
Asset
Equity
Plaintiff
Defendant
ASSETS TO BE GRANTED TO CHILDREN/OTHER
DESCRIPTION
EQUITY
65
PLAINTIFF
DEFENDANT
____________________,
Plaintiff,
vs.
_____________________,
Defendant.
)
)
)
)
)
)
)
)
)
CASE NO. CI ___________
PLAINTIFF’S STATEMENT OF MARITAL DEBTS
Liability/Debt
Current
Debt
Plaintiff
Defendant
TOTAL
PLAINTIFF’S STATEMENT OF POST-SEPARATION DEBTS
Liability/Debt
Current
Debt
TOTAL
66
Plaintiff
Defendant
________________________,
Plaintiff,
vs.
________________________,
Defendant.
)
)
)
)
)
)
)
)
)
CASE NO. CI ___________
PLAINTIFF’S SUGGESTIONS TO THE COURT
1.
MARRIAGE IRRETRIEVABLY BROKEN. The Court should determine from
the testimony and evidence adduced that every reasonable effort to effect a reconciliation of the
marriage between the Plaintiff and Defendant has been made, but without success, and that the
marriage of the Plaintiff and Defendant is irretrievably broken and should be dissolved.
2.
CUSTODY/VISITATION. The parties agree the Defendant should be awarded
physical custody of the parties’ minor child, namely: _______________, age 17; The parties have
mediated a parenting plan and should be awarded parenting time consistent with their Parenting
Plan. The Plaintiff and Defendant should be awarded joint legal custody of the parties’ minor
child.
3.
CHILD SUPPORT. The Plaintiff should pay, through the Nebraska Child Support
Payment Center, child support for the minor child of the parties, in the sum of $800 per month
commencing on the first day of the first month following the entry of the Decree of Dissolution.
4.
DAY CARE. Due to the age of the child, day care expenses are not anticipated.
5.
HOUSEHOLD GOODS. Each party should be awarded as his or her sole and
separate property the household goods in his or her respective possession. Such property divisions
should be considered equitable.
6.
PROPERTY DIVISION/DEBT DIVISION.
The parties should be awarded
property as set forth on the Defendant’s “Proposed Division of Marital Assets.” The parties should
divide debt as set forth on the Defendant’s “Statement of Marital Debts.”
7.
DEPENDENCY EXEMPTION. The parties should alternate the dependency
exemption such that the Plaintiff receives the exemption in even-numbered years and the
Defendant receives the exemption in odd-numbered years. The Plaintiff should be required to be
67
current with all child support payments before he is permitted to claim the child as a dependency
exemption.
8.
TAXES. The parties should be ordered to file separate tax returns for the 2015 tax
9.
HEALTH/LIFE INSURANCE. The Plaintiff should be required to maintain the
year.
Defendant on his employer-provided health insurance for the six (6) month interlocutory period.
Each party should pay any uninsured medical expenses incurred individually and indemnify the
other party on same. Plaintiff should maintain the present health insurance coverage available
through his employer on the minor children. After the Defendant pays the first $480 per child per
year, uninsured medical expenses should be split 50/50.
10.
ALIMONY. Neither party should be ordered to pay the other alimony.
11.
ATTORNEYS FEES AND COSTS. Each party should be ordered to pay his or her
own attorney fees. The award of attorney fees in this action involves consideration of such factors
as the nature of the case, the amount involved in the controversy, the services performed, the results
obtained, the length of time required for preparation of the case, the skill devoted to preparation
and presentation of the case, the novelty and difficulty of the questions raised, and the customary
charges of the bar for similar services. Priest v. Priest, 251 Neb. 76, 554 N.W.2d 792 (1996).
RESPECTFULLY SUBMITTED BY:
Omaha, NE 68114
Telephone: (402) 905-2220
Facsimile: (402) 905-2224
68
____________________,
Plaintiff,
vs.
____________________,
Defendant.
)
)
)
)
)
)
)
)
)
CASE NO. CI ____________
DECREE OF
DISSOLUTION OF MARRIAGE
ON THE 16th day of October, 2014, this matter came before the Honorable Michael J.
Coffey, District Judge, Douglas County, Nebraska, on the Complaint for Dissolution hereinbefore
filed by Plaintiff, the Answer hereinbefore filed by the Defendant, and the evidence relative
thereto.
The Plaintiff, ________________, is represented in this matter by his attorney, Jill M.
Mason of KINNEY LAW, P.C., L.L.O., 900 South 75th Street, Omaha, Nebraska 68114. The
Defendant, _________________ is represented in this matter by her attorney, Ryan M. Hoffman,
ANDERSON BRESSMAN AND HOFFMAN, P.C., L.L.O., 11440 West Center Road, Suite A, Omaha,
Nebraska 68144.
Both parties agreed prior to the presentation of any evidence that all matters in dispute have
been resolved. Both parties voluntarily waived the requirement of a hearing pursuant to Neb. Rev.
Stat. § 42-361(3). The Court, being fully advised in the premises, finds as follows:
1.
The parties were residents of Douglas County, Nebraska, for more than one (1) year
prior to the filing of the Complaint for Dissolution of Marriage.
2.
The Complaint was filed on June 17, 2013; the Defendant’s Voluntary Appearance
was filed on July 1, 2013. The Court finds pursuant to Neb. Rev. Stat. § 42-363 (Reissue 1993)
that more than sixty (60) days have passed since service of the Complaint on the Defendant.
3.
The Court has jurisdiction of the parties hereto and the subject matter hereof.
4.
The Plaintiff and Defendant were united in marriage on November 3, 2005 in Las
Vegas, Clark County, Nevada.
5.
The parties are the parents of three (3) minor children, the custody and welfare of
whom may be affected by these proceedings, to wit: ______________, born in 2006,
_____________, born in 2008, and ___________________, born in 2009.
69
6.
The parties shall be awarded joint legal and joint physical custody of the minor
children. Parenting time and parenting rights shall be as set forth in the Parenting Plan, which
document is attached hereto as Exhibit A and incorporated herein by this reference.
7.
Neither Plaintiff nor Defendant is a member of the Armed Forces of the United
States of America, nor has either party been ordered for induction therein.
8.
Neither Plaintiff nor Defendant is a party to any other pending action for divorce,
separation or dissolution of marriage except in the above-captioned cause, either in this state or
elsewhere.
9.
The Court has determined from the testimony and evidence adduced that every
reasonable effort to effect a reconciliation of the marriage between Plaintiff and Defendant has
been made, but without success, and that the marriage of Plaintiff and Defendant is irretrievably
broken and should be dissolved.
10.
The Court finds pursuant to the testimony of the parties that they have entered into
the following Property Settlement Agreement (this “Agreement”) in consideration of the promises
and mutual covenants and agreements therein contained, to wit:
A.
Jurisdiction.
The parties hereby specifically acknowledge and submit
themselves to the jurisdiction of the District Court of Douglas County, Nebraska, with
regard to all matters relating to the subject matter and rights of the parties under the within
agreement.
B.
Effective Date. This Agreement shall become binding upon the parties and
their respective legal representatives, successors, and assigns immediately following the
dissolution of their marriage in the pending proceedings, provided that the provisions of
this Agreement are approved by the Court.
C.
Care, Custody, and Control of the Minor Children. Plaintiff and Defendant
are fit and proper persons to be awarded the permanent care, custody, and control of the
minor children of the parties. Plaintiff and Defendant shall be awarded joint legal and joint
physical custody of the parties’ minor children with parenting time as set forth in the
Parenting Plan attached hereto as Exhibit A and incorporated herein by this reference.
Pursuant to Neb. Rev. Stat. § 42-364 (1998), each parent shall continue to have full
and equal access to the education and medical records of the child, and each parent may
make emergency decisions affecting the health or the safety of the child while he is in the
70
physical custody of such parent pursuant to any parenting time order entered by the Court.
In addition, both parties agree to consult with one another in the event of any significant
illness, injury, emergency medical treatment, or elective medical or dental care, as parental
input from both parents is in the best interests of the child on these issues. In the case of
emergency regarding the parties’ minor children, each parent shall contact the other parent
as soon as reasonably practicable.
D.
Child Support. Plaintiff shall pay to Defendant through the Nebraska Child
Support Payment Center, P.O. Box 82600, Lincoln, Nebraska 68509-2600, child support
for the minor children of the parties, in the sum of $800.00 per month commencing on the
first day of the first month following the entry of this Decree, and a like amount on the first
day of every month thereafter, until one of the minor children reaches the age of majority
under Nebraska law, becomes emancipated, becomes self-sustaining or dies or until further
order of this Court, whichever is the first event to occur. At such time as there are only
two minor children eligible for child support, the Plaintiff herein shall pay, through the
Nebraska Child Support Payment Center, child support in the amount of $680.00 per month
on the first day of every month. At such time as there is only one (1) minor child eligible
for child support, the Plaintiff herein shall pay, through the Nebraska Child Support
Payment Center, child support in the amount of $444.00 per month on the first day of every
month until the remaining child reaches the age of majority under Nebraska law, becomes
emancipated, becomes self-sustaining or dies or until further order of this Court, whichever
is the first to occur.
This is a downward deviation from the child support guidelines amount, but the
parties agree that this deviation is warranted. A Child support calculation is attached hereto
as Exhibit B and is incorporated herein by this reference.
E.
Day Care Expenses. Child care expenses for the minor children which are
due to the employment of either parent, or to allow a parent to obtain training or education
necessary to enhance earning potential, shall be paid as follows: The Plaintiff shall pay
fifty percent (50%) of the amount of such day care expenses and the Defendant shall pay
fifty percent (50%) of such expenses. The Defendant shall provide documentation to the
Plaintiff of the daycare expenses within thirty (30) days of incurring the same, and the
71
Plaintiff shall remit his fifty percent (50%) share within fifteen (15) days of his receipt of
said documentation.
F.
Children’s Expenses. The parties shall each be responsible for fifty percent
(50%) of any expenses for mutually agreed upon extracurricular activities for the children.
The parent incurring the expenses shall provide documentation of the expense to the other
parent within thirty (30) days of incurring the same and he/she shall remit his or her fifty
percent (50%) share within thirty (30) days of his/her receipt of said documentation.
G.
Dependency Exemptions. In years in which each of the parties’ three minor
children are eligible for income tax dependency exemptions, Plaintiff shall be entitled to
claim two (2) children and Defendant shall be entitled to claim one (1) child in evennumbered years. In odd-numbered years, Plaintiff shall be entitled to claim one (1) child
and Defendant shall be entitled to claim two (2) children. When there are only two (2)
children eligible for the income tax dependency exemption, the parties shall each claim
one child. When there is only one (1) child eligible for the income tax dependency
exemption, the parties shall alternate the use of the income tax dependency exemption such
that Plaintiff shall receive the exemption in even-numbered years and Defendant shall
receive the exemption in odd-numbered years. Plaintiff shall be eligible to claim an
exemption only if he is current with his child support obligation by December 31st of the
year in which the exemption will be used. In the event that Plaintiff is entitled to such an
income tax dependency exemption as described above, Defendant shall execute a Form
8332, or any similar Internal Revenue Service form permitting for the transfer of such
income tax dependency exemption. Neither party shall claim an income tax dependency
exemption to which they are not entitled.
H.
School. The parties agree that so long as one parent resides in the Gretna
school district that the minor children will continue to attend school in Gretna.
I.
Taxes. The parties shall file separate tax returns for the 2014 tax year.
Neither party shall file an amended return for prior tax years without securing the written
consent of the other party.
J.
Attorneys Fees and Costs. Neither party shall pay the attorney fees of the
other party.
72
K.
Health Insurance. The Plaintiff shall maintain the Defendant on the health
insurance provided by his employer for the six (6) month interlocutory period following
the entry of the Decree, as required by Nebraska law. Plaintiff and Defendant shall each
pay any uninsured medical expenses incurred individually and indemnify and hold
harmless the other party from the same. The Plaintiff shall cooperate with the Defendant
for purposes of enabling the Defendant to continue her health insurance coverage on the
Plaintiff’s policy by virtue of COBRA legislation to the extent provided by law, at her
expense.
The Plaintiff shall maintain the parties’ minor children on his employer-provided
health insurance so long as such insurance is offered to him at a reasonable expense as a
benefit of his employment, until such minor children reach legal age, die, become
emancipated or become sooner self-supporting or until further order of this Court,
whichever shall first occur.
L.
Children’s Uninsured Health Care Expenses.
All nonreimbursed
reasonable and necessary health care costs of the minor children, including but not limited
to uninsured medical, dental, orthodontia, counseling, and optical expenses shall be
addressed as follows: The Plaintiff shall pay seventy percent (70%) of such expenses and
the Defendant shall pay thirty percent (30%) of such expenses. The Defendant shall
provide documentation to the Plaintiff of the uninsured medical expenses within thirty (30)
days of the benefits of said services being processed by insurance, and the Plaintiff shall
remit his seventy percent (70%) share within fifteen (15) days of his receipt of said
documentation.
M.
Household Goods, Furniture, Furnishings, Personal Effects and Jewelry.
Each party shall be awarded as his or her sole and separate property all household goods,
furniture, furnishings, personal effects, and jewelry in his or her respective possession, to
be that party’s property absolutely, free and clear of any interest of the other party.
N.
Motor Vehicles. Plaintiff shall be awarded the 2002 Ford Explorer (VIN:
1FMZU73E82ZB62870) in his possession, subject to any loans and encumbrances, and he
shall indemnify the Defendant against and hold her harmless from any indebtedness or
obligation related thereto. Defendant shall be awarded the 2014 Chevrolet Traverse in her
possession, subject to any loans and encumbrances, and she shall indemnify the Plaintiff
73
against and hold him harmless from any indebtedness or obligation related thereto. The
parties agree to sign any title instruments necessary to transfer title to the above-referenced
vehicles. The parties previously owned a Ford Expedition. Defendant shall be responsible
for any indebtedness or obligation related to the Ford Expedition and shall indemnify the
Plaintiff and hold him harmless from any indebtedness, attorney fees, or obligation related
thereto.
O.
Savings/Checking Accounts.
Each party shall be awarded any bank
accounts in his or her respective names. Any joint bank accounts shall be closed.
P.
IRAs, Stocks, and Retirement Accounts. The Plaintiff maintains an ING
IRA (Plan No. VK0329) (approximately $710.00). The parties shall equally divide the
Plaintiff’s ING account with the Plaintiff receiving fifty percent (50%) and the Defendant
receiving fifty percent (50%). The account shall be valued as of the date of the entry of
the parties’ Decree with each party awarded any gains or losses on his or her respective
share from the date of valuation to the date of distribution. Defendant shall be responsible
for preparing any documentation to divide Plaintiff’s ING account. Defendant shall be
responsible for any taxes associated with her distribution from the ING account.
The Plaintiff also maintains, through his employment, a defined benefit pension
plan. Defendant shall be awarded fifty percent (50%) of the value of the pension accrued
during the parties’ marriage pursuant to a Qualified Domestic Relations Order using a
valuation date of September 1, 2013. The most precise method of determining the amount
of this award is to award the Defendant fifty percent (50%) of the accumulated account
balance as of September 1, 2013 multiplied by a fraction, the numerator of which is the
total contributions made to the account from November 3, 2005 to September 1, 2013, and
the denominator of which is the total number of contributions made as of September 1,
2013. The Qualified Domestic Relations Order shall include all appropriate language for
preserving the account, preserving gains and losses on each party’s share from the date of
valuation to the date of distribution and appropriate awards of survivor benefits.
Q.
Debt. Each party shall pay any debt incurred in his or her individual name
since August 25, 2013, the date of the parties’ separation, and shall indemnify and hold
harmless the other party with respect to same.
74
R.
Life Insurance. Neither Plaintiff nor Defendant is required to keep the other
named as beneficiary of any life insurance policy.
S.
Real Estate. The parties do not own any real property.
T.
Alimony/Spousal Support. Neither party shall pay alimony/spousal support
to the other party. Both parties understand and acknowledge that if no alimony/spousal
support is awarded at the time of the entry of the Decree, none will ever be awarded
U.
Preservation of Temporary Order. Any and all unpaid child support,
daycare, uninsured medical expenses, debt, or other sums awarded to either the Plaintiff or
the Defendant in the Temporary Order signed by the Court on the 1st day of August, 2013
shall be preserved in this Decree and shall not be merged into the Decree but shall remain
a judgment to the extent that such child support, daycare, uninsured medical expenses,
debt, or other sums remain unpaid at the time of the entry of the Decree.
V.
Other Property.
The Plaintiff and Defendant agree that except as
specifically provided in this Agreement, all property of any kind hereafter acquired by
Plaintiff or Defendant and all income and earnings of either of them shall constitute and be
the sole and separate property of the person for whom the said property is acquired or
earned.
W.
Advice of Counsel. Each of the parties expressly certifies that he or she has
entered into this Agreement upon mature consideration and after ample opportunity to seek
the advice of separate counsel; that consent to the execution of this Agreement has not been
obtained by duress, fraud, or undue influence of any person; that no representations of facts
have been made by either party to the other except as herein expressly set forth; that both
parties have had full access to the books and records of the other and both parties have full
knowledge as to the business affairs of each other and the nature, extent and value of the
property of the other; and that the parties agree that this Agreement is fair and reasonable
and not unconscionable.
X.
Mutual Releases. In consideration of the provisions of this Agreement, the
Plaintiff and Defendant will release one another as follows:
(1)
The Plaintiff will and does accept the benefits of this Agreement in
full and complete satisfaction of allowances, financial claims, monetary demands,
property claims and rights, and support money of every character, kind or nature
75
whatsoever which he has or may acquire as the husband or widower of the
Defendant, or in the event of her death as an heir at law or surviving spouse of the
Defendant or otherwise; and the Plaintiff will and does relinquish and waive all
future, present or other interests in the property of the Defendant except under the
provisions of this Agreement.
(2)
The Defendant will and does accept the benefits of this Agreement
in full and complete satisfaction of allowances, financial claims, monetary
demands, property claims and rights, and support money of every character, kind
or nature whatsoever which she has or may acquire as the wife or widow of the
Plaintiff, or in the event of his death as an heir at law or surviving spouse of the
Plaintiff or otherwise; and the Defendant will and does relinquish and waive all
future, present or other interests in the property of the Plaintiff except under the
provisions of this Agreement.
(3)
This Agreement will be and is a complete, final and full settlement
of all matters in dispute between the Plaintiff and the Defendant; and, in the event
of the death of the Plaintiff or Defendant within thirty (30) days after the Court
decrees a dissolution, and before such Decree becomes final and operative, this
Agreement will be and remain in full force and effect as effectively and fully as if
both Plaintiff and Defendant had survived for such period and such Decree had
become final and operative and will not thereby be or become null and void.
Y.
Full Disclosure. Each party hereby warrants to the other that there has been
an accurate, complete and current disclosure as to all income, assets, debts, and liabilities.
Both parties understand and agree that any deliberate failure to provide complete disclosure
constitutes grounds for setting aside this Agreement and the Decree of Dissolution of
Marriage. The property referred to in this Agreement represents all the property in or to
which either party has any interest or right, whether legal or equitable, owned in full or in
part by either party, separately or by the parties jointly.
Z.
Approval of the District Court. This Agreement shall be submitted for
approval by the District Court of Douglas County, in which the present proceedings for
dissolution of marriage are pending, and if the same is approved by the Court and found to
be not unconscionable, this Agreement shall become part of the Decree. In the event that
76
the Court does not grant a dissolution of the marriage herein or the Property Settlement is
not approved by the Court, then this entire document shall be null and void and neither of
the parties shall be obligated by any provision hereof.
AA.
Waiver of Breach. No waiver of any breach by either party of the terms of
this Agreement shall be deemed a waiver of any subsequent breach. No modification of
this Agreement shall be binding upon either of the parties unless reduced to writing and
subscribed to by both parties unless ordered by the Court.
BB.
Captions. Paragraph titles or titles contained herein are inserted as a matter
of convenience and for reference and in no way define, limit, extend, or describe the scope
of his Agreement or any provision hereof.
CC.
Interpretation. No provision in this Agreement is to be interpreted for or
against any party because that party or that party’s legal representative drafted the
provision.
DD.
CLIENT’S RESPONSIBILITY. The responsibility to follow through with
the acts, instruments and transfers set out herein are solely the duty of the parties to this
agreement, unless specifically stated otherwise herein. No attorney for a party shall have
a duty to enforce the promises herein, to compel or require the signing or transfer of
documents contemplated herein, or to pursue enforcement of the terms of this agreement.
The parties acknowledge that they alone are responsible for these actions.
11.
The Court further finds, pursuant to Neb. Rev. Stat. § 42-366 (Reissue 1998) that
the parties have entered into a Property Settlement Agreement, as incorporated herein in Paragraph
10 above, which Property Settlement Agreement contains provisions for the care, custody and
control of the minor children, parenting time, child care contribution, real property, household
goods, furniture, furnishings and personal effects, motor vehicles, health and accident insurance,
medical expenses not covered by insurance, savings accounts, cash on hand, retirement accounts,
life insurance to fund child support, debts, full disclosure, property settlement, and all other matters
relevant to the parties pursuant to the dissolution proceeding, other than those items which were
presented to the Court, which Property Settlement Agreement has been examined by the Court,
and the Court finds same to be fair and reasonable and not to be unconscionable and hereby
approves said agreement.
77
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED, that the marriage of
parties be and hereby is dissolved, with this Decree becoming final and operative, except for
purposes of review by appeal, without any further action of the Court, thirty (30) days after it is
rendered or on the death of one of the parties to the dissolution, whichever first occurs; however,
for purposes of remarriage or the continuation of health insurance coverage, this Decree becomes
final and operative six (6) months after this Decree is rendered or on the death of one of the parties
to the dissolution, whichever occurs first. If this Decree becomes final and operative upon the date
of death of either of the parties, this Decree shall be treated as if it became final and operative the
day it was rendered.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the
Plaintiff shall pay child support through the Nebraska Child Support Payment Center, P.O. Box
82600, Lincoln, Nebraska 68509-2600, child support for the minor children of the parties, in the
sum of $800.00 per month commencing on the first day of the first month following entry of this
Decree, and a like amount on the first day of every month thereafter, until one of the minor children
reaches the age of majority under Nebraska law, becomes emancipated, becomes self-sustaining
or dies or until further order of this Court, whichever is the first event to occur. At such time as
there are only two minor children eligible for child support, the Plaintiff herein shall pay, through
the Nebraska Child Support Payment Center, child support in the amount of $680.00 per month
on the first day of every month. At such time as there is only one (1) minor child eligible for child
support, the Plaintiff herein shall pay, through the Nebraska Child Support Payment Center, child
support in the amount of $444.00 per month on the first day of every month until the remaining
child reaches the age of majority under Nebraska law, becomes emancipated, becomes
self-sustaining or dies or until further order of this Court, whichever is the first to occur. This is a
downward deviation from the child support guidelines amount, but such deviation is warranted.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that pursuant to Neb. Rev.
Stat. § 42-364.13, the Plaintiff acknowledges that he has been advised and understands that under
Nebraska law, any person ordered to pay a judgment of child support/spousal support as part of
the dissolution proceedings is required to furnish to the Clerk of the District Court in which the
proceeding was held his/her address, telephone number, Social Security number, the name of
his/her employer, whether or not he/she has access to employer-related health insurance coverage,
and if so, the health insurance policy information, and any other information the Court shall deem
78
relevant until such child support judgment shall be paid in full. The payor is also required to advise
the clerk of any changes in such information between the time of the entry of the decree and
payment of the judgment in full. Each parent is required to furnish to the Clerk of the District
Court whether he or she has access to employer-related health insurance coverage and, if so, the
health insurance policy information. Failure to comply with the provisions of this law shall be
punishable by contempt.
The payor further acknowledges that he has been advised and understands that in the event
he should fail to pay any child support/spousal support payment as such failure is certified to the
Court each month by the district court clerk in cases where Court-ordered support is delinquent in
an amount equal to the support due and payable for a one-month period of time, he shall be subject
to income withholding and may be required to appear before the Court on a date to be determined
by the Court and show cause why such payment was not made. In the event the payor fails to pay
or appear as so ordered, a warrant shall be issued for his arrest.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that neither party shall pay
alimony.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that neither party shall pay
the attorney fees of the other party.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Property Settlement
Agreement incorporated in Paragraph 10 of this Decree has been examined by the Court and found
by the Court to be fair and reasonable and not unconscionable and is hereby approved. The
property, whether real, personal or mixed, described in the said Property Settlement Agreement
shall be and it hereby is set over unto the respective parties, and each of the parties shall be and
hereby are ordered and directed to carry out the terms of said Property Settlement Agreement, as
set forth in this Decree in its entirety. If either of the parties shall fail, refuse, or neglect within
thirty (30) days of the execution of this Decree to execute any and all documents necessary or
required to carry out and fulfill the terms of their Property Settlement Agreement so set forth
above, then this Decree shall operate as an instrument of conveyance and have the same force and
effect as such necessary document.
79
DATED this _____ day of October, 2014.
BY THE COURT:
____________________________
APPROVED AS TO FORM AND CONTENT, AND I RESPECTFULLY REQUEST THAT
THE COURT ENTER THE ABOVE DECREE AND APPROVE THE PROPERTY
SETTLEMENT INCORPORATED HEREIN:
______________________________________
__________________, Plaintiff
_____________________________________
_________________, Defendant
STATE OF NEBRASKA
COUNTY OF DOUGLAS
)
) ss.
)
The undersigned, a Notary Public in and for the County and State aforesaid, does hereby
certify that ___________________, personally known to me to be the identical person whose name
is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged
that he signed, sealed and delivered the instrument as his free and voluntary act for the uses and
purposes therein set forth.
GIVEN under my hand and official seal this ______ day of _____________, 2014.
_____________________________
Notary Public
80
STATE OF NEBRASKA
COUNTY OF DOUGLAS
)
) ss.
)
The undersigned, a Notary Public in and for the County and State aforesaid, does hereby
certify that ___________________, personally known to me to be the identical person whose name
is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged
that she signed, sealed and delivered the instrument as her free and voluntary act for the uses and
purposes therein set forth.
GIVEN under my hand and official seal this ______ day of ________________, 2014.
_____________________________
Notary Public
KINNEY LAW, PC, LLO
Omaha, NE 68114
Telephone: (402) 905-2220
APPROVED AS TO FORM:
_____________________________________
Ryan M. Hoffman, #23183
ANDERSON & BRESSMAN LAW FIRM, PC, LLO
11440 West Center Road, Suite A
Omaha, NE 68144
Telephone: (402) 333-4774
81
____________________,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
___________________,
Defendant.
CASE NO. CI _____________
VERIFIED
WAIVER OF HEARING
COME NOW __________________, Plaintiff herein, and NATHAN R. PIERCE,
Defendant herein, and pursuant to Neb. Rev. Stat. §42-361(3), hereby state:
1.
More than sixty (60) days have passed since service of the Complaint for
Dissolution of Marriage was perfected upon the Defendant.
2.
The Court has subject matter jurisdiction over these proceedings.
3.
The Court has personal jurisdiction over the Plaintiff and Defendant.
4.
The parties have entered into and signed under oath a Decree of Dissolution of
Marriage and Parenting Plan which resolves all issues presented by the Plaintiff’s Complaint and
the Defendant’s Answer and Counter-Complaint.
5.
The parties each voluntarily waive the requirement of a hearing pursuant to Neb.
Rev. Stat. §42-361(3).
6.
The parties jointly request that the Court approve and enter the Decree of
Dissolution of Marriage and Parenting Plan without a hearing as allowed by Neb. Rev. Stat. §42361(3).
82
DATED this _____ day of _______________, 2015.
_________________________________________
_________________, Plaintiff
STATE OF TEXAS
)
) ss.
COUNTY OF ____________ )
Now on this ____ day of _________________, 2015, before me, a duly appointed and
qualified Notary Public, personally appeared the Plaintiff, _____________, known to me to be the
same and identical person who signed the above and foregoing Certificate of Waiver of Hearing,
and acknowledged the execution to be Plaintiff’s voluntary act and deed.
_________________________________________
Notary Public
DATED this ______ day of __________________, 2015.
_________________________________________
______________, Defendant
STATE OF NEBRASKA
COUNTY OF DOUGLAS
)
) ss.
)
Now on this ____ day of ____________, 2015, before me, a duly appointed and qualified
Notary Public, personally appeared the Defendant, _______________, known to me to be the same
and identical person who signed the above and foregoing Certificate of Waiver of Hearing, and
acknowledged the execution to be the Defendant’s voluntary act and deed.
_________________________________________
Notary Public
83
________________________,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
_______________________,
Defendant.
CASE NO. CI ________
MOTION FOR NEW TRIAL/MOTION
TO CLARIFY
COMES NOW the Defendant, _____________________, and moves the Court for entry
of an Order granting him a new trial in this matter or clarifying the ruling. In support of his Motion,
the Defendant states the following:
1.
The judgment of the Court is not supported by the evidence and/or is contrary to
law;
2.
The Court abused its discretion;
3.
Certain matters were omitted by the Court in rendering a decision; and
4.
The language related to the division of retirement accounts, the real estate, and the
personal property of the parties should be clarified.
WHEREFORE, the Defendant prays for the entry of an Order granting him a new trial in
this matter; and for such other relief as the Court deems just and equitable in the premises.
Dated this ____ day of March, 2014.
_________________, Defendant,
By:
__________________________________________
10812 Elm Street
Omaha, NE 68144
Telephone: (402) 905-2220
Facsimile: (402) 905-2224
Attorneys for Defendant
84
NOTICE OF HEARING
TO:
__________________, Plaintiff, and D.C. “Woody” Bradford, III, Her Attorney
YOU AND EACH OF YOU are hereby notified that a hearing on the Defendant’s Motion
has been scheduled before the Honorable J. Michael Coffey, Fifth Floor, Courtroom No. 7, on the
18th day of April, 2014 at 10:30 o’clock a.m., or as soon thereafter as counsel may be heard.
It is hereby certified that a copy of the above and foregoing Notice was delivered via regular
United States Mail, postage prepaid, addressed to the individual named below, on this ____ day
of March, 2014:
D.C. “Woody” Bradford III
BRADFORD & COENEN, LLC
1620 Dodge Street, Suite 1800
Omaha, NE 68102
_______________________________
Jill M. Mason
85
___________________,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
_________________,
Defendant.
CASE NO. CI ___________
NOTICE OF APPEAL
COMES NOW the Defendant, __________________, and hereby gives notice of his intent
to appeal to the Nebraska Court of Appeals/Supreme Court the Order of the District Court of
Douglas County, Nebraska, as follows: The Order entered by the Honorable Peter C. Bataillon on
February 3, 2014. Defendant hereby makes deposit of the docket fee as required by law.
DATED this 17th day of February, 2014.
_________________, Defendant,
By:
___________________________________
Omaha, NE 68114
Telephone: (402) 905-2220
It is hereby certified that a copy of the above and foregoing Notice of Appeal was delivered
via regular United States Mail, postage prepaid, addressed to the individual named below, on this
17th day of February, 2014:
Virginia Albers
SLOWIACZEK, ALBERS & ASTLEY, PC, LLO
Omaha, NE 68102
86
____________________________________
Jill M. Mason
__________________,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
_________________,
Defendant.
CASE NO. CI __________
PRAECIPE FOR
BILL OF EXCEPTIONS
TO THE CLERK OF THE DISTRICT COURT OF DOUGLAS COUNTY, NEBRASKA:
You are hereby requested, pursuant to Rule 5B of the Nebraska Supreme Court/Court of
Appeals Rules, to prepare a Bill of Exceptions, to include the following:
1.
The entire verbatim record of the trial held on August 12, 2014 and August 14, 2014
in this matter; and
2.
All exhibits offered into evidence on said dates by Plaintiff and/or Defendant,
including any and all documents of which the Honorable Peter C. Bataillon was
asked to take judicial notice.
DATED 17th day of February, 2014.
___________________, Defendant
By:
87
___________________________________
Omaha, NE 68114
Telephone: (402) 905-2220
It is hereby certified that a copy of the above and foregoing Praecipe for Bill of Exceptions
was delivered via regular United States Mail, postage prepaid, addressed to the individuals named
below, on this 17th day of February, 2014:
Virginia Albers
Omaha, NE 68102
Toni Schneckenberger, Court Reporter
c/o The Peter C. Bataillon
Douglas County Courthouse
1701 Farnam Street
Omaha, NE 68102
____________________________________
Jill M. Mason
88
____________________,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
___________________,
Defendant.
CASE NO. CI ___________
PRAECIPE FOR TRANSCRIPT
TO THE CLERK OF THE DISTRICT COURT OF DOUGLAS COUNTY, NEBRASKA:
You are hereby requested, pursuant to Rule 4A of the Nebraska Supreme Court/Court of
Appeals Rules, to prepare a Transcript, to include the following:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
Plaintiff’s Complaint for Legal Separation filed on March 7, 2012;
Defendant’s Rebuttal Against Complaint for Legal Separation filed on April 2,
2012;
Plaintiff’s Motion for Temporary Custody and Allowances filed on May 24, 2012;
Temporary Order entered on June 12, 2012;
Plaintiff’s Motion for Leave to Amend Pleadings filing on February 1, 2013;
Order Permitting Plaintiff to Amend Pleadings entered on February 12, 2013;
Plaintiff’s Amended Complaint for Dissolution of Marriage filed on February 12,
2013;
Plaintiff’s Second Amended Complaint for Dissolution of Marriage filed on April
26, 2013;
Defendant’s Motion to Amend Temporary Order filed on May 2, 2013;
Defendant’s Answer and Counterclaim filed on October 3, 2013;
Defendant’s Motion for New Trial filed on October 22, 2013;
Defendant’s Motion to Reopen Trial filed on October 31, 2013;
Order entered on November 6, 2013;
Defendant’s Motion to Reconsider filed on November 21, 2013;
Defendant’s Withdrawal of Motion for New Trial filed on November 21, 2013;
Plaintiff’s Motion to Reopen Record filed on December 11, 2013; and
Decree of Dissolution of Marriage entered on February 3, 2014.
DATED this 17th day of February, 2014.
89
_________________, Defendant
By:
___________________________________
Omaha, NE 68114
Telephone: (402) 905-2220
It is hereby certified that a copy of the above and foregoing Praecipe for Transcript was
delivered via regular United States Mail, postage prepaid, addressed to the individual named
below, on this 17th day of February, 2014:
Virginia Albers
Omaha, NE 68102
90
____________________________________
Jill M. Mason
)
)
)
)
)
)
)
)
_______________________,
Plaintiff,
vs.
______________________,
Defendant.
STATE OF NEBRASKA
COUNTY OF DOUGLAS
CASE NO. CI __________
APPLICATION AND AFFIDAVIT FOR
CITATION OF CONTEMPT
)
) ss.
)
I, ______________, Defendant herein, being first duly sworn upon oath, depose and state
as follows:
1.
I am the Affiant; I am more than 19 years old. All of the facts recited in this
affidavit are known to me personally, and I am competent to testify to them. If I were called to
testify as a witness in these proceedings, my testimony would contain allegations as set forth
below.
2.
A Decree of Dissolution of Marriage was entered in the above-captioned matter by
this Court on June 11, 2014.
3.
Pursuant to the Decree, Plaintiff was ordered to pay $250.00 per month as spousal
support to Defendant commencing May 1, 2014 and continuing for a period of thirty-six (36)
months.
4.
Additionally, a judgment was entered against Plaintiff in favor of Defendant in the
amount of $6,042.50 for past due spousal support under the Temporary Order.
5.
Since the entry of the Decree, Plaintiff has willfully and contumaciously failed
and/or refused to abide by the above-referenced order of this Court by not paying any monthly
alimony/spousal support to Defendant or any of the judgment entered against Plaintiff in favor of
Defendant.
6.
As a result of the foregoing statement, it is a rebuttable presumption that the
Plaintiff is in contempt of Court.
WHEREFORE, the Defendant prays for an Order to Show Cause to be issued and served
upon the Plaintiff, requiring him to appear before this Court on a day and hour certain, for willfully
91
refusing to abide by the lawful Order of this Court, and upon a full and complete hearing, that the
Plaintiff be held in contempt for this direct refusal to abide by the lawful Order of this Court; and
Defendant further prays for an award of attorney’s fees necessitated by the hearing of this matter
before the Court, and for such other relief as the Court deems appropriate in the circumstances.
FURTHER AFFIANT SAITH NOT.
______________________________________
___________________
SUBSCRIBED AND SWORN to before me on this ____ of January, 2015.
______________________________________
Notary Public
Omaha, NE 68114
Telephone: (402) 905-2220
Facsimile: (402) 905-2224
92
)
)
)
)
)
)
)
)
__________________,
Plaintiff,
vs.
________________,
Defendant.
CASE NO. CI ____________
ORDER TO SHOW CAUSE
THIS MATTER comes before the Court upon the Application and Affidavit for Citation
of Contempt of ______________, Defendant, for an Order requiring the Plaintiff,
______________, to appear and show cause why he should not be held in contempt of Court for
having willfully and contumaciously failed to obey the previous Orders of the Court as they relate
to Defendant’s obligation to pay spousal support to Defendant as required by the Decree of
Dissolution of Marriage of this Court dated June 11, 2014. The Court, being fully advised in the
premises, finds that such an Order should be entered.
IT IS, THEREFORE, ORDERED by the Court that the Plaintiff, _______________,
appear before the Honorable W. Russell Bowie, in Courtroom No. 4, Fifth Floor, Douglas County
Courthouse, Omaha, Nebraska, on the 11th day of February, 2015, at 1:30 p.m., to show cause why
he should not be held in contempt of Court for having willfully failed to obey the Orders of this
Court.
DATED this ____ day of January, 2015.
BY THE COURT:
_________________________________________
Omaha, NE 68114
Telephone: (402) 905-2220
93

Dividing Retirement Accounts in Divorce

Transcription

Similar documents

Divorce Packet (Self Help)

here

RAY BECKERMAN, P.C.

UNCONTESTED DIVORCE NO CHILDREN

akedemiks

FAIRBORN MUNICIPAL COURT SMALL CLAIMS DIVISION 1148

s s s s s s s s s

Saunders v. Margaritaville of Myrtle Beach, LLC, No. 4:16-cv

2016 May-June - Warren County Bar Association