Division of Property

The Court will look at all your assets that were accumulated during the marriage. This is referred to as the "marital estate". Assets that were owned by one party prior to the marriage are considered pre-marital and will not be included in the marital estate. Also, assets or monies that were inherited by one party or received as the result of a gift from one's family during the marriage will usually not be included in the marital estate.

The Court will look at the net market value of each asset in the marital estate. For example, if you and your spouse purchased a home during your marriage with marital funds and the home could be sold today for $100,000.00 and has a mortgage against it of $60,000.00, the net market value is $40,000.00, or the current value of $100,000 minus the mortgage of $60,000.00.

    $100,000 current market value
    - 60,000    mortgage
    $ 40,000    net market value
The $40,000.00 net market value will be included in the marital estate and divided by the Court.

Personal Property
For personal property, the market value will be how much you could sell it for today (not replacement value). For example, if you paid $500 for a television three years ago, it is probably worth around $250-$300, depending on its condition.

All of the net values of the assets will be added together and then divided. Property will be divided anywhere from 1/3-2/3 to 1/2-1/2 for each party. More and more often the Court tries for roughly a 1/2-1/2 division.

It does not matter whose name is on the title of the asset, whether it is a house, a car, or a savings account. If it was accumulated during the marriage with marital funds, it is part of the marital estate and subject to division.

Pension & Retirement Benefits
Within the past few years the Nebraska law has been changed to provide that pension benefits accumulated during the marriage are part of the marital estate and subject to division. Valuation of a pension can be somewhat difficult and it is always important to have a qualified attorney handle this. If the pension is something like a 401-K plan which has a set value, valuation is easy. But if the only information you have is that at age 55 your spouse will receive $600 per month, it may be necessary to have an actuary determine a present value, or simply provide that once the spouse begins receiving the pension, the other spouse will receive 50% of the present monthly amount. Awards of pension benefits are almost always covered by a Qualified Domestic Relations Order, and again, it will be to your benefit to consult an attorney regarding this.

More On Pre-Marital Assets and Inheritance
Under the law of the State of Nebraska, any property that was inherited during the marriage or gifted from your family is considered non-marital property and is not subject to division. The key here is whether or not these assets are traceable and whether or not they have been commingled with joint funds. If they are not traceable or if they have been commingled with joint funds, there may be a problem.

Similarly, other pre-marital property is not considered marital and will not be divided. For example, personal property brought into the marriage is non-marital and not subject to division. If one party owned a home prior to the marriage and it was sold at the time of the marriage and the net proceeds were placed in mutual funds in the name of the party owning the home, these funds would typically be considered non-marital.

Division of Debts
What will happen with your debts? In determining a fair division of property during a divorce proceeding, the Court will also take debts into account. The Court will usually subtract all outstanding debts from the net assets of the marital estate to determine the net amount that each party is to receive.

Future Liability of Debts
It is very important for you to understand that the divorce Court can only determine the rights and responsibilities between you and your spouse and cannot relieve you of responsibility for a debt you have incurred. So, for example, if your name is on the car loan for the car awarded to your spouse and your spouse defaults, the loan company can sue you for the balance even though the Divorce Decree orders your spouse to pay the debt.

In this situation, you would need to take your spouse back into Court to be ordered to reimburse you and the Court could find the spouse in contempt, garnish wages, etc. to reimburse you for any of the spouse's debts which you paid.


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