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Nebraska Premarital Agreements

Planning a wedding in Nebraska? While you’re picking out the perfect venue and tasting those delicious Runzas, consider adding a prenup to your checklist. It’s not about pessimism but rather about aligning with your future spouse, protecting both your heart and your hard-earned assets, and ensuring a smooth journey, even if the road ahead takes unexpected turns.

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Nebraska Prenuptial Agreement Basics

A prenup (or “premarital agreement” in Nebraska) is an agreement between two lovebirds planning to wed. Premarital agreements are a way for both parties to determine how assets, property, businesses, estate management, and other matters can be planned ahead of time if the marriage ends in divorce or the death of a spouse.  

Under Sections 42-1001 to 42-1011 of Nebraska’s Uniform Premarital Agreement Act, specific guidelines are set for the construction and enforcement of Nebraska prenups. These guidelines ensure that the agreements are written fairly and, if followed correctly, will make them enforceable.

How to create a valid and enforceable prenup in Nebraska

Let’s dive into the dos and don’ts of getting a valid and enforceable prenup in Nebraska.

Prenup requirements:

  • Must be in writing
  • Must be signed by both spouses
  • Must be entered into voluntarily by both spouses
  • Fair and reasonable financial disclosure from both parties of all assets and debts
  • Must only include provisions that are allowable by law

What to avoid:

  • Provisions regarding child support
  • Provisions regarding child custody
  • Unconscionable provisions (i.e., overly unfair)
  • Provisions against public policy or other laws
  • Hiding or omitting assets or debt in financial disclosure
  • Entering into the agreement under duress or coercion

Note: Spousal support provisions in Nebraska prenups are permitted, but a judge may override them if they would result in an inequitable outcome.

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What can a premarital agreement in Nebraska include?

So what does Nebraska law say is A-OK in terms of what to put into a prenup? According to Neb. Rev. Stat. § 42-1004, a Nebraska prenup may include clauses about: 

  • Division of property if divorce or death occurs
  • Manage and control property 
  • The making of wills, trusts, estate planning
  • Modification and elimination of spousal support
  • Liability of debts
  • Provisions around life insurance
  • Choice of law (which state law applies)
  • Any other matter that does not violate Nebraska Law

Note: Neb. Rev. Stat. § 42-1004 (2) explicitly states that Nebraska prenups cannot include terms about child support.

The default law on alimony in Nebraska

Alimony is the payment from one spouse to the other in the event of a divorce. The purpose of alimony, according to Nebraska’s Revised Statute 42-365, 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.“ 

In Nebraska, whether or not alimony is awarded is determined by multiple factors and is granted on a case-by-case basis, depending on financial need. Some of the factors include: 

  • Each spouse’s situation 
  • Marriage length
  • Each person’s contributions to the marriage (including childcare and career sacrifices)
  • The ability of the spouse seeking support to work without affecting childcare

In Nebraska, without a prenuptial agreement, the decision about alimony rests largely in the hands of the court. If you want more control over your alimony rights and avoid leaving it to a judge’s discretion, a prenup is a wise choice. 

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Who would benefit from signing a premarital agreement in Nebraska?

Why sign a prenup in the Cornhusker state? We’re glad you asked! There are so many reasons one might want a prenup in Nebraska–from protecting farmland to future inheritances to pets. 

Here is a list of some people who would benefit from signing a prenup: 

  • Anyone who wants peace of mind that in case of divorce, their assets will be distributed how they wish 
  • Soon-to-be spouses with individual debt can ensure the other spouse is not liable
  • Families with children from prior marriages can ensure their children can inherit their assets.
  • Stay-at-home parents who want to ensure that they are provided for in the event of a divorce (i.e., not left hanging after forgoing their career for so many years)
  • Soon-to-be spouses who own businesses or individual properties.
  • People expect a future inheritance from mom, dad, or grandma one day.
  • Couples who want to align on different life goals, such as retirement, estate planning, marital finance management, and more. 
  • People who want to avoid lengthy and costly litigation in case of divorce one day.

The default law on property division in Nebraska

Nebraska is an equitable distribution state, meaning that assets in a divorce are split equitably, not necessarily 50/50. That means a judge decides the division of assets and it could be 60/40, 70/30, or even 50/50, depending on the situation. One of the principles behind this method of asset division is to have parties come to a resolution before going to court. Having a premarital agreement beforehand that is enforceable is very helpful if a couple ever ends up in divorce.
Some of the factors (Neb. Rev. Stat. § 42-365) that a Nebraska court will consider when determining how to split up a couple’s assets include:

Duration of the marriage

Circumstances of each party

Contributions of each party

How to end a marriage in Nebraska

To file for divorce, one must be a resident of Nebraska for at least one year. Neb. Rev. Stat. § 42-342. There is a sixty-day “cooling off period” from the date of the initial filing of the complaint. Neb. Rev. Stat. § 42-363. 

In Nebraska, the only grounds for divorce are “no-fault” (i.e., the marriage is “irretrievably broken”). This means neither party has to prove that the other spouse did anything wrong to make the marriage break down. Neb. Rev. Stat. § 42-347.

Important prenup cases in Nebraska

Occasionally, Nebraska courts delve into prenuptial agreements during divorce proceedings, leading to published case law that offers insights into how the state views these agreements. We’ve gathered a few key cases that shed light on how Nebraska courts interpret prenuptial agreements and the potential outcomes for couples involved.

NE Prenup Case Law:

Does not having an attorney and signing a prenup the day before the wedding render a prenup unenforceable?

Nope. A Nebraska court said this prenup was enforceable. The wife in this case (Auxier v. Auxier, 2023) wanted to get the prenup thrown out and she argued she did not sign the agreement voluntarily based on several reasons, including the prenup being signed the day before, not having an attorney, unequal bargaining power, and not understanding the agreement. 

The Nebraska court disagreed with the wife and said the following: 

– Even though the prenup was signed the day before, she was informed of the prenup a month before, and they could have moved their courthouse wedding. 

– The wife had an opportunity to get a lawyer if she wanted (the husband gave her several names of lawyers to hire) and she chose not to. Plus, her father was an attorney.

– There was an inequity in bargaining power in terms of disparity of assets but that is not enough here. There was no threats or intimidation. 

– There was a full disclosure of assets on the husband’s side. 

– Despite the wife arguing she did not understand the terms of the agreement, the court said she was fluent in English, spoke 5 languages, and had a college degree. So this was not a valid argument. 

Additionally, the wife suffered a stroke during the marriage, leaving her unable to work.  She argued that the prenuptial agreement’s clause waiving spousal support should be invalidated because it would force her to rely on public assistance, according to Neb. Rev. Stat. § 42-1006(2). However, the court disagreed. 

The court reasoned that the wife was already receiving Social Security disability benefits *during* the marriage due to the stroke, not because of the divorce. Therefore, the spousal support waiver didn’t cause her to become eligible for public assistance at the time of the divorce, as required by Nebraska law. As a result, the court found the waiver of spousal support to be valid and enforceable. 

Auxier v. Auxier, 32 Neb.App. 230, (Neb. App. 2023)

Example of when a Nebraska court finds that a person did not sign a prenup voluntarily
The future husband and wife (Kevin and Valara) lived together for a few years before getting married in 2006. They had two children together, and Valara had two from a previous relationship. Kevin was wealthier, with assets over $1 million, and they signed a prenuptial agreement a few days before the wedding. He told her to sign it, or there would be no wedding, and she did. At this point, the wedding invitations had already been sent, and the wedding had already been paid for. 

Fast forward to 2010 when the couple was divorcing. The Nebraska court ultimately decided that the prenup was not enforceable as Valara did not voluntarily sign the agreement for the following reasons: 

– Timing and Coercion: The agreement was presented to her just a few days before the wedding, and she felt pressured to sign it or risk the wedding being canceled.

– Lack of Opportunity to Get Independent Counsel: Although Valara had mentioned wanting her attorney to review the agreement, she wasn’t given the opportunity to do so (not enough time). 

– Inequality in Bargaining Power: There was a significant difference in the parties’ financial situations and business experience, with Kevin having a much higher net worth and more business acumen. Valara was also a stay-at-home mom at the time, further limiting her bargaining power.

– Lack of Understanding: The prenuptial agreement was a complex legal document, and there was no evidence that Valara fully understood the rights she was waiving by signing it. 

Moral of the story? Make sure each party has enough time to get a lawyer if they want one (more than a few days to get one), and don’t spring the prenup on your spouse a few days before the wedding with no warning! 

Mamot v. Mamot, 813 NW 2d 440 (2012)

Spousal support provisions in Nebraska prenups

Jeffrey and Dianna Edwards disputed the validity of the prenup they signed. Both had been represented by their own attorneys while drafting the agreement, but Dianna’s attorney resigned from her case during the prenup process. Still, she signed the agreement without an attorney present. In 2004, the couple filed for divorce. Dianna argued that she had not voluntarily signed the prenup and had felt coerced to do so. 

Ultimately, the court disagreed and stated that the agreement was enforceable but modified its ruling on the issue of spousal support.

The court’s reasoning 

The court explained that while Dianna lacked legal representation at the signing, this was not enough to invalidate the prenuptial agreement, especially since she had legal counsel during negotiations and had ample time to seek further advice. Her claims of coercion and the disparity in business knowledge were also dismissed as insufficient to render the agreement involuntary. The court concluded that Dianna’s decision was voluntary and informed, emphasizing her education, prior experience with prenups, and the clear language of the agreement.

The spousal support provision

However, the court found that the spousal support provision in the prenup, while valid, may still be overruled by a judge. The court here said a judge can still order payments for temporary support to allow one party to be able to afford the divorce proceedings (i.e., temporary spousal support).

The bottom line? Just because you didn’t have a lawyer doesn’t make a prenup unenforceable. In addition, couples can make provisions in their prenups for spousal support, but the court ultimately has the final word.

Edwards v. Edwards, 744 NW 2d 243 (Neb. Ct. App. 2008)

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The information on this page was last updated in July, 2024. Hello Prenup provides a platform for self-help. The information provided by Hello Prenup along with the content on our website related to legal matters (“Legal Information”) is provided for your private use and does not constitute legal advice. We do not review any information you provide us for legal accuracy or sufficiency, draw legal conclusions, provide opinions about your selection of forms, or apply the law to the facts of your situation. If you need legal advice for a specific problem, you should consult with a licensed attorney. Neither Hello Prenup nor any information provided by Hello Prenup is a substitute for legal advice from a qualified attorney licensed to practice in an appropriate jurisdiction.

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