Modification of Alimony in Nebraska – Answers to Your Frequently Asked Questions.

November 28, 2022 | By Goosmann Law Team

The modification of alimony in Nebraska is one of the more complex, difficult, and misunderstood areas of Nebraska law, that often leaves those paying alimony with few options of relief to seek from the Court. Recently, several cases have unsuccessfully challenged Nebraska District Court orders related to the denial of requests for modifications of alimony. Although those decisions were not changed on appeal, those cases have clarified the law in Nebraska and have provided some guidance as to the law on when a modification of alimony might be appropriate.1

Whether you can obtain a modification is largely fact dependent, based on the unique circumstances of your case. Determining whether or not your case is an alimony case, or whether you can obtain a modification of your alimony award in Nebraska, requires the analysis of an experienced Omaha divorce lawyer. The Omaha divorce lawyers at Goosmann Law are available to consult with you as to the unique facts of your case and are ready to pursue your modification case in Court when it is appropriate.

The purpose of spousal support/alimony in Nebraska:

The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic circumstances and the other criteria enumerated in this section make it appropriate.2 The court may order a reasonable payment of such alimony by one party to the other based on the following:

  1. The Circumstances of the parties;
  2. The duration of the marriage;
  3. An analysis of the history of the contributions to the marriage by each party including:
    • the contributions to the care and education of the children; and
    • interruption of personal careers or educational opportunities.
  4. The ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of such party;
  5. The income and earning capacity of each party; and
  6. The general equities of the situation.

Alimony is not awarded solely based on income. It is a balancing of equities unique to each particular case. Nebraska is a no-fault divorce state and it is well established under Nebraska law that the award of alimony is not to punish the spouse paying alimony. Further, alimony in Nebraska should also not be granted by the Court in order to equalize the incomes of the parties (but a disparity of income or potential income might partially justify an alimony award). In other words, the Court should not order alimony to make sure each spouse has a similar income, but the Court can look at each party’s income in determining whether an award of alimony is appropriate.

Modification of spousal support/alimony in Nebraska:

To modify an alimony order, the person seeking to modify alimony must show good cause. 2 Under Nebraska law, good cause is a showing of a material and substantial change in economic circumstances and is analyzed on a case-by-case basis.

If a party is seeking to modify alimony, it is their burden (responsibility) to show that the changes being claimed are “material and substantial” enough to rise to the level where a modification upward or downward would be appropriate. In determining good cause, the district court must decide on the totality of the circumstances by comparing the economic circumstances of the parties at the time of dissolution with the time when modification was sought. If the changes can be attributed to the mere passage of time or were within the contemplation of the parties at the time of dissolution, then they cannot justify modification.3

In practice, modifications can be difficult to obtain in Nebraska but a modification is not entirely impossible.

FREQUENTLY ASKED QUESTIONS:

Do I have good cause in my case to modify the alimony awarded in my divorce?

The answer is always “it depends” on whether you have good cause to modify alimony. Each case is unique and how a Court may decide in a case is contingent on many factors and ultimately will be at the discretion of the trial judge.

An experienced Nebraska divorce attorney is necessary to properly advise as to whether you have a case for an alimony modification based on the unique facts of your case.

What is a material change in circumstance to modify alimony?

Generally, good cause is needed to modify alimony in Nebraska and it is demonstrated by showing a material change in circumstances.

Nebraska divorce and alimony modification law is not overly clear as to what is and is not a material change in circumstances when modifying alimony. In summary, a material change of circumstances means the occurrence of something which, had it been known to the court at the time the alimony/spousal support order was entered, it would have persuaded the Court to order something different in the decree. If the claimed grounds for a change in circumstance were within the contemplation of the parties at the time the decree was entered, or if the change in circumstances were accomplished by the mere passage of time, it would not justify a change or modification of an alimony order under Nebraska law.

It is very important to note that what may have been a material change of circumstances in one case may not rise to a material change of circumstances in another case. For instance, a request to modify alimony was denied when a party requesting the reduction claimed they lost their high-paying job and were working for a start-up company and making $1 per year.4 In the Gregg case, the Court looked at all factors when analyzing whether the reduction of income (and other factors) constituted good cause and a material change of circumstances. After trial, the Court denied the modification request and the decision was upheld by the Nebraska Court of Appeals. In other cases, the reduction of income has been enough to modify alimony.

Whether or not you have a material change of circumstances requires the careful review by an experienced Nebraska divorce lawyer of your unique situation.

Is my ex-spouse’s cohabitation with another person enough to terminate spousal support?

No. Cohabitation alone is not enough to terminate the supporting spouse’s alimony.5 However, a party seeking to terminate alimony can argue that cohabitation is a material change, but they must show that the cohabitation has materially and substantially improved the person’s overall financial condition in order to prevail on a modification. The Court will look at all factors and the equities of the case to determine if a modification is appropriate. If your ex-spouse is cohabitating and continues to receive spouse support, whether or not you can modify alimony in your case requires an experienced Nebraska divorce attorney to properly advise you of the unique facts of your case and to pursue your case in Court.

Note: A possible exception to the rule that cohabitation is not enough to terminate alimony would be if the parties specifically agreed in their divorce decree that cohabitation (like death or remarriage) would be a cause for alimony to be terminated.

Is an increase in my income or my ex-spouse’s income enough to modify or terminate alimony?

Generally, no. An increase of income of one spouse alone does not make something rise to the level of a material change to modify alimony, it will only be considered a factor. Similarly, an increase from part-time to full time work would not be a factor alone to modify alimony. Courts have denied modifications where both parties incomes have increased because the general equities between the parties had not changed. Courts have also approved a modification based on an increase in income of the spouse receiving alimony.

If your spouse has had a dramatic increase in income to warrant a modification requires careful legal analysis of the exact circumstances of your case to determine if a modification is possible based on your unique facts.

So, can I modify my alimony that I pay (or receive) or not?

The answer, unfortunately, depends on the unique facts of your case. Nothing is guaranteed in any Court. Given the complexity of this area of the law and the unique factual circumstances of each particular case, it is highly recommended that you obtain legal advice to review your specific circumstances to determine if your case is suitable for a modification of alimony.

Please be aware that if you are ordered to pay alimony, but are unable to do so, it is extremely important that you act quickly to seek a modification, as missed payments before a case is filed for a modification normally cannot be retroactively adjusted. Also, if you do not take action immediately and miss payments, you also could face contempt charges filed by your former spouse, so it is critical to seek advice and act quickly.

If you are seeking to modify alimony, contact the experienced Omaha divorce lawyers at Goosmann Law to set up an initial consultation to meet with you to discuss the exact facts of your alimony modification case.

https://www.goosmannlaw.com/services/divorce-family-law

Disclaimer: Nothing in this post is intended to provide legal advice and is provided for general informational purposes only.

Sources:

  1. Grothen v. Grothen, 308 Neb. 28, 952 N.W.2d 650 (2020).
  2. Neb. Rev. Stat. § 42-365.
  3. Metcalf v. Metcalf, 278 Neb. 258, 769 N.W.2d 386 (2009).
  4. Gregg v. Gregg, 31 Neb. App. 417 (2022).
  5. Roth v. Roth, 218 Neb. 417, 355 N.W.2d 516 (1984).