42-366. Property settlements; effect; enforcement; modification.

(1) To promote the amicable settlement of disputes between the parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written property settlement agreement containing provisions for the maintenance of either of them, the disposition of any property owned by either of them, and the support and custody of minor children.

(2) In a proceeding for dissolution of marriage or for legal separation, the terms of the agreement, except terms providing for the support and custody of minor children, shall be binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.

(3) If the court finds the agreement unconscionable, the court may request the parties to submit a revised agreement or the court may make orders for the disposition of property, support, and maintenance.

(4) If the court finds that the agreement is not unconscionable as to support, maintenance, and property: (a) Unless the agreement provides to the contrary, its terms may be set forth in the decree of dissolution or legal separation and the parties shall be ordered to perform them; or (b) if the agreement provides that its terms shall not be set forth in the decree, the decree shall identify the agreement and shall state that the court has found the terms not unconscionable, and the parties shall be ordered to perform them.

(5) Terms of the agreement set forth in the decree may be enforced by all remedies available for the enforcement of a judgment, including contempt.

(6) Alimony may be ordered in addition to a property settlement award.

(7) Except for terms concerning the custody or support of minor children, the decree may expressly preclude or limit modification of terms set forth in the decree.

(8) If the parties fail to agree upon a property settlement which the court finds to be conscionable, the court shall order an equitable division of the marital estate. The court shall include as part of the marital estate, for purposes of the division of property at the time of dissolution, any pension plans, retirement plans, annuities, and other deferred compensation benefits owned by either party, whether vested or not vested.

Source

Annotations

1. Property settlement agreements

2. Constitutionality

3. Conscionability

4. Pension and similar benefits

5. Miscellaneous

1. Property settlement agreements

The parties to a marriage may enter into a written settlement agreement to settle disputes attendant upon separation of their marriage, including a dispute over modification of a previous decree. Marcovitz v. Rogers, 276 Neb. 199, 752 N.W.2d 605 (2008).

A decree of dissolution of marriage which approves and incorporates an agreement and stipulation of the parties is not a consent judgment. Chamberlin v. Chamberlin, 206 Neb. 808, 295 N.W.2d 391 (1980).

When a written agreement of the parties specifies that a specific amount of alimony is to be paid and that payments are terminable only by the death or remarriage of the recipient, the district court may not terminate alimony payments unless those conditions are met. Benedict v. Benedict, 206 Neb. 284, 292 N.W.2d 565 (1980).

A party to a property settlement agreement entered into pursuant to this section may not as a matter of right withdraw therefrom prior to approval or disapproval of the agreement by the trial court. Sebesta v. Sebesta, 202 Neb. 624, 277 N.W.2d 49 (1979).

Property settlement agreements are governed by this section and they are favored in the law and will not be set aside unless unconscionable. Paxton v. Paxton, 201 Neb. 545, 270 N.W.2d 900 (1978).

2. Constitutionality

A married person's interest in the marital status is not a property right, the state has plenary powers with regard to it, and Nebraska divorce laws are not unconstitutional. Buchholz v. Buchholz, 197 Neb. 180, 248 N.W.2d 21 (1976).

3. Conscionability

Pursuant to this section, the court has an independent duty to evaluate the terms of an agreement and ensure that they are not unconscionable before incorporating them into a decree. Marcovitz v. Rogers, 276 Neb. 199, 752 N.W.2d 605 (2008).

An agreement between husband and wife, if executed to control the disposition of the marital assets of the parties during a later dissolution action, is a written property settlement within this section, and is binding on the court unless the agreement is found to be unconscionable. Written property settlement found to be unconscionable. Dobesh v. Dobesh, 216 Neb. 196, 342 N.W.2d 669 (1984).

The trial judge may request evidence on the issue of the conscionability of a proposed settlement but is not required to do so. Buker v. Buker, 205 Neb. 571, 288 N.W.2d 732 (1980).

The term "unconscionable" as used in this statute has been interpreted as meaning "manifestly unfair or inequitable." Paxton v. Paxton, 201 Neb. 545, 270 N.W.2d 900 (1978).

Terms of settlement agreement were unconscionable or "manifestly unfair or inequitable" where from total assets of $450,000 wife would receive only life estate in residence, auto, and alimony of $12,100. Weber v. Weber, 200 Neb. 659, 265 N.W.2d 436 (1978).

Voluntary property settlement agreement held binding on both the court and parties in the absence of unconscionable terms. Prochazka v. Prochazka, 198 Neb. 525, 253 N.W.2d 407 (1977).

4. Pension and similar benefits

Investment earnings accrued during the marriage on the nonmarital portion of a retirement account may be classified as nonmarital where the party seeking the classification proves: (1) The growth is readily identifiable and traceable to the nonmarital portion of the account and (2) the growth is due solely to inflation, market forces, or guaranteed rate rather than the direct or indirect effort, contribution, or fund management of either spouse. Stanosheck v. Jeanette, 294 Neb. 138, 881 N.W.2d 599 (2016).

Although the actual appreciation or increase in value of a state employee's pension occurred during the marriage, such increase was not due to the efforts or contribution of marital funds by the parties during the marriage, but, rather, was guaranteed prior to the marriage by operation of section 84-1301(17). Therefore, such increase was not marital property. Coufal v. Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015).

In order to determine what portion of a party's retirement account is nonmarital property in a divorce, the court examines to what extent the appreciation in the separate premarital portion of the retirement account was caused by the funds, property, or efforts of either spouse. Coufal v. Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015).

Pursuant to subsection (8) of this section, retirement plans earned during the marriage are to be included in the division of the marital estate. Sitz v. Sitz, 275 Neb. 832, 749 N.W.2d 470 (2008).

Although this section requires that any pension plans, retirement plans, annuities, and other deferred compensation benefits owned by either party be included as part of the marital estate, the plain language of this section does not require that such assets be valued at the time of dissolution. The expression "at the time of dissolution" in subsection (8) of this section qualifies the date at which the marital estate is divided but does not provide that pension-type property must be valued on such date. Hosack v. Hosack, 267 Neb. 934, 678 N.W.2d 746 (2004).

Subsection (8) of this section requires the inclusion of retirement benefits in the marital estate, and such benefits include a future nondisability military pension. Longo v. Longo, 266 Neb. 171, 663 N.W.2d 604 (2003).

Although subsection (8) of this section requires that any pension plans, retirement plans, annuities, and other deferred compensation benefits owned by either party be included as part of the marital estate, the plain language of this section does not require that such included assets be valued at the time of dissolution. The expression "at the time of dissolution" in subsection (8) of this section qualifies the date at which the marital estate is divided but does not provide that pension-type property must be valued on such date. The pension-type property may be valued as of another date that is rationally related to the property. Tyma v. Tyma, 263 Neb. 873, 644 N.W.2d 139 (2002).

A trial court, in the exercise of its broad jurisdiction with regard to approval and enforcement of property settlement agreements under this section, has the power to approve and incorporate into a consent decree a conscionable term in the parties' agreement to divide pension benefits earned by a spouse after the termination of the marriage, even though the trial court has no statutory power to order such a division in a contested case. Hoshor v. Hoshor, 254 Neb. 743, 580 N.W.2d 516 (1998).

Per subsection (8) of this section, in a marriage dissolution, the marital estate includes only that portion of pensions earned during the marriage. Priest v. Priest, 251 Neb. 76, 554 N.W.2d 792 (1996).

Any pension benefits may be considered as marital property, and thus divisible in a dissolution of marriage action, whether or not the pension is vested. Ray v. Ray, 222 Neb. 324, 383 N.W.2d 752 (1986).

In dissolution proceedings the trial court has broad discretion in valuing and dividing pension rights between the parties. Sonntag v. Sonntag, 219 Neb. 583, 365 N.W.2d 411 (1985).

This section requires the court to include any pension and retirement plans in the marital estate. It does not require a pension to be divided between the parties, nor does it require any specific method of valuation. The trial court retains broad discretion in valuing pension rights and dividing such rights between the parties. Rockwood v. Rockwood, 219 Neb. 21, 360 N.W.2d 497 (1985).

As a result of the Uniformed Services Former Spouses Protection Act, nondisability military pensions need no longer be treated differently than nonmilitary pensions. Taylor v. Taylor, 217 Neb. 409, 348 N.W.2d 887 (1984).

Based on the facts of this case, the wife was awarded one-half of the value of property in pension and profit-sharing trusts maintained by her husband's employer. The trial court retains broad discretion in valuing pension rights and in dividing such rights between the parties. Kullbom v. Kullbom, 209 Neb. 145, 306 N.W.2d 844 (1981).

Deferred compensation, including pension plans, retirement plans, and annuities, is property for purposes of determining the marital estate under subsection (8) of this section. Wiech v. Wiech, 23 Neb. App. 370, 871 N.W.2d 570 (2015).

Pursuant to subsection (8) of this section, for purposes of property division, the marital estate includes any pension and retirement plans owned by either party. Ging v. Ging, 18 Neb. App. 145, 775 N.W.2d 479 (2009).

Pursuant to subsection (8) of this section, early retirement incentives that result from employment during the marriage are included in the marital estate. Simon v. Simon, 17 Neb. App. 834, 770 N.W.2d 683 (2009).

A disability pension is a marital asset. John v. John, 1 Neb. App. 947, 511 N.W.2d 544 (1993).

Pension plans shall be included as a part of the marital estate for purposes of the division of property at the time of dissolution; the value of the plan should be determined at the time of the decree. Polly v. Polly, 1 Neb. App. 121, 487 N.W.2d 558 (1992).

5. Miscellaneous

Appreciation or income of a nonmarital asset during the marriage is marital insofar as it was caused by the efforts of either spouse or both spouses. Stephens v. Stephens, 297 Neb. 188, 899 N.W.2d 582 (2017).

An agreement between a husband and wife concerning the disposition of their property, not made in connection with the separation of the parties or the dissolution of their marriage, is not binding upon the courts during a later dissolution proceeding. Devney v. Devney, 295 Neb. 15, 886 N.W.2d 61 (2016).

An increase in value in the separate property of a spouse, not attributable in any manner to any contribution of funds, property, or effort by either of the spouses, constitutes separate property. Coufal v. Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015).

In deciding the allocation of a single asset, the division of which is reserved to the court by the parties, a court should not order a distribution of the asset that is inconsistent with a voluntary stipulation entered into by the parties and approved by the court dividing the remainder of the parties' assets. Shearer v. Shearer, 270 Neb. 178, 700 N.W.2d 580 (2005).

The marital estate includes property accumulated and acquired during the marriage through the joint efforts of the parties; with some exceptions, the marital estate does not include property acquired by one of the parties through gift or inheritance. The marital estate includes that portion of a pension which is earned during the marriage. Reichert v. Reichert, 246 Neb. 31, 516 N.W.2d 600 (1994).

Although section 42-364 does not permit a district court in a dissolution action to order child support beyond the age of majority, the district court has the authority to enforce the terms of an approved settlement, which may include an agreement to support a child beyond the age of majority. Zetterman v. Zetterman, 245 Neb. 255, 512 N.W.2d 622 (1994).

In view of evidence concerning the health of the parties, the trial court abused its discretion by precluding modification of alimony awarded in decree of dissolution under subsection (7) of this section. Dinovo v. Dinovo, 238 Neb. 285, 470 N.W.2d 174 (1991).

Alimony provisions may be modified, even if based upon property settlement agreements, unless the parties or the court provide otherwise in writing. Euler v. Euler, 207 Neb. 4, 295 N.W.2d 397 (1980).

Where the decree expressly precludes modification, the award is such a definite and final adjustment of mutual rights and obligations as to be capable of a present vesting and to constitute an absolute judgment. Van Pelt v. Van Pelt, 206 Neb. 350, 292 N.W.2d 917 (1980).

In absence of agreement, court must divide property fairly under circumstances of marriage. Cozette v. Cozette, 196 Neb. 780, 246 N.W.2d 473 (1976).

In an action for dissolution of marriage, agreements between husband and wife, not made in connection with separation or dissolution of marriage, are not binding on the court. Snyder v. Snyder, 196 Neb. 383, 243 N.W.2d 159 (1976).

Except for terms concerning the custody or support of minor children, the decree may expressly preclude or limit modification of terms set forth in the decree. Haug v. Haug, 195 Neb. 377, 238 N.W.2d 455 (1976).

Alimony may be ordered in addition to a property settlement. Magruder v. Magruder, 190 Neb. 573, 209 N.W.2d 585 (1973).

In a dissolution of marriage proceeding, if the parties fail to agree on a property settlement, pursuant to subsection (8) of this section, the court shall order an equitable division of the marital estate. Ging v. Ging, 18 Neb. App. 145, 775 N.W.2d 479 (2009).

A civil contempt order enforcing a settlement agreement is not a final, appealable order where the order does not contain both a finding of contempt and a noncontingent order of sanction. Hammond v. Hammond, 3 Neb. App. 536, 529 N.W.2d 542 (1995).