The traditional theory for alimony, also called spousal support, can be traced back to English ecclesiastical courts which required a husband who had secured a mensa et thoro separation (separation from bed and board) from his wife to continue to support his wife. This mensa et thoro separation was not an absolute divorce, which is why the husband was required to continue supporting his wife. The rationale stemmed from the fact that women gave up their property rights at marriage. If the marriage ended, the wife had no way to support herself. The husband retained the right to control the wife’s property. Historically, women were the economically dependent spouses, not working outside the home. This was a great contributing factor to the evolvement of alimony.
As the societal landscape of the United States changed, so too did the rationales behind awarding alimony. For many courts, the role of fault originally played a significant role in determining the award of alimony. This was based on contract theory. Alimony became damages for breach of the marital contract. This was reflected in the fact that most states made alimony available solely to the innocent, injured spouse. The measure of damages often approximated the standard of living the wife would have enjoyed but for her husband’s breach.
In 1970 the Uniform Marriage and Divorce Act again changed the way courts awarded alimony. Section 308 of the UMDA changed the character of the awards from “show-of-fault” to one that was almost exclusively based on the payee spouse’s needs. The UMDA gave alimony a new name: maintenance. This award was only available to the spouse who was unable to meet his or her own reasonable needs through appropriate employment. In 1979 the Supreme Court of the United States decided the case Orr v Orr, and held that statutes which provided alimony or spousal support for only women violated the Equal Protection Clause of the Constitution.
Alimony is awarded based on statute; there is no common law cause of action. Most states’ controlling statutes have a “reasonableness” standard, considering factors such as the circumstances of the parties, duration of the marriage, a history of the contributions to the marriage by each party, including contributions to the care and education of the children, interruption of personal careers or educational opportunities, and 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 when deciding the amount and duration of the spousal support award.
Determining whether alimony should be awarded, in what amount, and over what period of time in the state of Nebraska is controlled by Neb. Rev. Stat. §42-365. This was enacted in 1972. The construction of the statute was influenced by the change of Nebraska’s divorce law from “show-of-fault” to “no-fault” and by the enactment of the federal Uniform Marriage and Divorce Act in 1970. Like most states’ statutes, the Nebraska statute states that the ultimate criterion for determining awards of spousal support is that of “reasonableness”. The statute proceeds to specify six factors which courts may take into consideration when analyzing the totality of the circumstances surrounding the facts of a particular case and determining to what extent an award of spousal support is “reasonable”. Subsequent Nebraska case law has set out other factors extracted from specific cases which are imperative in the analysis of the case circumstances when testing for “reasonableness” of awards of spousal support.
This analysis of alimony in Nebraska is organized into a research guide designed to assist attorneys in finding sources of law. The purpose of this document is to provide an attorney or student interested in the subject of alimony in the state of Nebraska a guide to the most relevant and useful sources.
This Guide contains secondary sources, primary sources, and practice materials. The secondary sources provide basic background information on the subject of alimony. Most of these secondary sources will also direct the researcher to other primary sources via citations and footnotes. The primary authority in this pathfinder is mostly a combination of applicable federal and Nebraska law. The practice materials in this Guide provide the researcher with relevant books, forms needed for court, and other resources.
This is by no means a complete analysis of all of the relevant material available to a researcher interested in the subject area of alimony in Nebraska. It is simply an attempt to assist the researcher in his or her journey.
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