17
Apr
12

Southeast Community College Spring 2012 Class: Estate Planning for the Middle Class

To get more information or register:

http://www.southeast.edu/generalinformation/ClassSchedules.aspx

18
Jan
12

Welcome Pedro!

Welcome Pedro!

12
Aug
11

You Don’t Pay My Bills . . . Or Do You??

Nebraska law allows for the recovery of temporary attorney’s fees in divorce actions, but also in child custody litigation that later ensues. Neb. Rev. Stat.§ 42-367 states in full:

“In every action for dissolution of marriage or legal separation, the court may require the husband to pay any sum necessary to enable the wife to maintain the action during its pendency. When dissolution of marriage or a legal separation is decreed, the court may decree costs against either party and award for the same, or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.”

The Nebraska Supreme Court in Nimmer v. Nimmer, 203 Neb. 503, 279 N.W.2d 156 (1979) interpreted NEB. REV. STAT. § 42-367 to allow for a party to recover temporary attorney’s fees when a suit for modification of custody is brought. In Nimmer, the mother was awarded custody in the parties’ divorce. However, the father subsequently brought a modification action seeking custody of the minor children. The father’s petition for custody was denied and the father appealed the trial court’s award of temporary attorney’s fees to the mother. The Nimmer court held the following:

“The court may allow attorney’s fees, both temporary and final, §§ 42-367 and 42-351, R.R.S. 1943, as amended. The authority of the court to allow attorney’s fees continues until the subject matter of the divorce suit is finally settled and determined. The decree of a District Court in an action for the dissolution of marriage, insofar as minor children are concerned, is never final in the sense it cannot be changed (citation omitted). Thus the court has continuing jurisdiction.”

Therefore, it is appropriate to ask for the other side to pay your attorney’s fees in not only dissolution actions, but also actions for modification of child custody. In particular, the financial equities of the parties often dictate that the Defendant in the modification action is entitled to temporary attorney’s fees to allow them to to defend the action pursuant to NEB. REV. STAT. § 42-367. So, sometimes, the party bringing the child custody modification action may end up pay my legal fees so I can defend the action for my client.

10
Jan
11

Antique store, grocery store, bank . . . now officially a law office!

While I have officially launched my virtual law office and am excited to be able to provide limited legal services online (https://rushchipman.vlotech.net/client). . . my heart is in “small town lawyering” out of my brick and mortar office in Union, Nebraska. I have been blessed with the opportunity to practice out of an amazing, historic space right on Main Street (Highway 34 that runs directly through Union). I love how the brick walls and hardwood floors make my office furniture and law books (my husband actually made my desk in high school woodshop) look so  “official.”  The office is a work in progress . . . but definitely ready for visitors!

30
Nov
10

Name Ch Ch Ch Ch Ch Changes

Are common law name changes applicable in Nebraska?

In Nebraska, any person desiring to change his or her name may file a petition in the district court of the county in which such person may be a resident, setting forth:

(a)       that the petitioner has been a bona fide citizen of such county for at least one year prior to the filing of the petition,

(b)        the cause for which the change of petitioner’s name is sought, and

(c)         the name asked for.

After finding proper notice, publication, and reasonable cause for changing the name of the petitioner, it is the duty of the district court to order and direct a change of name to such petitioner. Thus, a person desiring to change name under statute and obtain judicial record of change of name must adduce evidence to satisfy court that there is sufficient and reasonable cause for change.

Nebraska’s change of name statute, outlined above, does not abrogate or supersede the common law, but affirms the common-law right by affording an additional method by which name change may be effected as a matter of public record. Under the common law, a person may adopt any name he or she wishes, without resort to any court and without any legal proceedings, provided it is not done for fraudulent purposes. A person effects a common-law change of name by usage or habit. Unfortunately, there is no specific duration of use or level of openness that satisfies the “usage or habit” requirement.

Common law name changes have the advantages of great ease and flexibility; but also the disadvantage of difficulty in verifying a name change, especially when the change occurs outside the traditional times in life, such as adoption, marriage, or divorce. While there is no requirement that any person go through the courts to establish a legal name change, the State does not have to recognize a common law name change. However, according to Nebraska statute, a person shall apply for a replacement operator’s license or state identification card within sixty days after a name change, including “a common-law name change.” The Department of Motor Vehicles, or other governmental institutions, require documentation proving that a valid name change has been made regardless if the name change was court ordered or common law. Since a common law name change does not require a court order, some other document is needed to satisfy this requirement.  An affidavit of name change may be sufficient with some government.

21
Nov
10

The child can change his mind, right Judge?

 

What if  children change their minds regarding their admissions, waivers, etc. in juvenile court?

change your mind

In Nebraska, adult criminal defendants may withdraw their plea before sentencing for any fair and just reason, as long as prosecution would not be substantially prejudiced by its reliance on the plea entered. Adult criminal law can be used for guidance in juvenile court; however, it is clear that children’s admissions and subsequent request to withdraw their admissions must be treated with “special care,” particularly when such admissions were made without the benefit of counsel.

Studies show that juveniles often rely on incomplete cognitive and linguistic capacities that may compromise their ability to articulate goals, concerns, and desires in the courtroom. Furthermore, juveniles have a greater tendency than adults to take risks that endanger them, they struggle to distinguish “conditional” and “automatic” rights, and they often believe that advocacy is not available in their own cases.

While there is no standard that outlines when a child can and cannot change their mind regarding their “guilt” in juvenile court, for all of the above mentioned reasons, a juvenile’s request to withdraw his or her initial admission should be granted . . . even if an adult’s request to withdraw a guilty plea would be denied under similar circumstances.

03
Nov
10

Can Dad ask for genetic testing to prove paternity prior to divorcing mom?

What is the the procedure for rebutting the presumption of legitimacy of children pending divorce . . .

In Nebraska, children born to the parties in a marriage relationship are presumed legitimate unless otherwise decreed by the court. The presumption is rebuttable by clear, satisfactory, and convincing evidence; however, the presumed legitimacy of children born in wedlock may not be rebutted by the testimony or declaration of a parent. Blood tests are proper to rebut the presumption that husband was the biological father of the children and, in fact, it is an abuse of discretion for the court to not allow the results of a verified blood test into evidence.

The children born during a marriage are presumed to be the husband’s children, so the husband would not need to obtain special permission for testing.  However, if the mother objects to such testing, the discovery and admissibility of such evidence in civil cases is controlled by the Nebraska rules of discovery and evidence. Discovery Rule 35 allows a court to order a blood test of a child in the custody or legal control of a party when the blood group is in controversy. The order for such testing may be made only on motion for good cause shown and upon specifying time, place, manner, conditions, and scope.

“Good cause” for blood testing in a divorce action is not specifically outlined in Nebraska case law; however, the good cause requirement is generally fulfilled by a movant’s affirmative showing that the condition to be verified is actually controverted and that good cause exists for ordering the examining.  A movant’s inability to obtain the desired information without the requested examination is also relevant to a court’s decision whether to order an examination under Rule 35. A pleading verified by the oath of the husband (possibly describing wife’s infidelity or whatever gives him reason to believe the children are not his) should present sufficient “good cause” concerning disputed paternity, and the matter “in controversy,” which might well be resolved, or at least made more a less probable, by the results from a blood test.  Thus the pleadings would demonstrate the required physical condition “in controversy” and “good cause” for the requested blood samples to be used in genetic testing.




Follow

Get every new post delivered to your Inbox.