Rules for dividing assets in divorce proposed

If a court finds that an equal division of a marital estate is inequitable, it should state its basis for the finding under legislation heard by the Judiciary Committee March 12.

Introduced by Kearney Sen. Galen Hadley, LB497 originally was drafted to require that courts divide marital property equally in cases of divorce, annulment or legal separation.

An amendment Hadley brought to the committee instead calls for equitable distribution and the consideration of the following factors when courts determine the distribution of assets:
• the length of the marriage;
• prenuptial or antenuptial agreements;
• age, health, occupation, source of income, vocational skills, employability and liabilities of each spouse;
• contributions of each spouse to the marriage, home and care and education of children;
• expectation of pension or retirement rights acquired prior to or during the marriage;
• amount and duration of any spousal support awarded to either party or a property division in lieu of such support; and
• tax consequences to each party.

Courts need specific rules to follow when deciding how to divide assets in divorce cases, Hadley said, because current law directs courts to divide assets reasonably, rather than equitably or equally. The amendment would give courts a clear starting point and require them to specify why assets are not divided equally in those cases, he said.

Kearney attorney Kent Schroeder testified in support of the bill and amendment, saying courts rarely deviate from a 1960s-era formula that awards the principal wage earner two-thirds of assets while giving the spouse one-third. That arrangement has become increasingly ill-fitting, he said, especially for farm families, where lines between financial earnings and homemaking responsibilities are unclear.

Additionally, he said, Nebraska is the only remaining state in which courts must rely on vague property distribution language.

“We’ve been wrestling for 55 years with a rule of law totally different from the rest of the states,” Schroeder said.

Katie Zulkoski, representing the Nebraska State Bar Association, testified in opposition to the bill and the amendment. The list of factors courts would be required to consider when awarding assets is too restrictive and would limit judges’ discretion, she said.

The committee took no immediate action on the bill.

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