§ 42-361 — Marriage irretrievably broken; findings; decree issued without hearing; when

Nebraska § 42-361

• Jurisdiction: Nebraska
• Ch. 42: Households and Families

Text

(1) If both
of the parties state under oath or affirmation that the marriage is irretrievably
broken, or one of the parties so states and the other does not deny it, the
court, after hearing, shall make a finding whether the marriage is irretrievably
broken.
(2) If one of the parties has denied under oath or affirmation
that the marriage is irretrievably broken, the court shall consider all relevant
factors, including the circumstances that gave rise to the filing of the complaint
and the prospect of reconciliation, and shall make a finding whether the marriage
is irretrievably broken.
(3) Sixty
days or more after perfection of service of process, the court may enter a
decree of dissolution without a hearing if:
(a) Both parties waive the requirement
of the hearing and the court has sufficient basis to make a finding that it
has subject matter jurisdiction over the dissolution action and personal jurisdiction
over both parties; and
(b) Both parties have certified in writing that the marriage is
irretrievably broken, both parties have certified that they have made every
reasonable effort to effect reconciliation, all documents required by the
court and by statute have been filed, and the parties have entered into a
written agreement, signed by both parties under oath, resolving all issues
presented by the pleadings in their dissolution action.

Legislative History

Source: Laws 1972, LB 820, § 15; Laws 2004, LB 1207, § 24; Laws 2011, LB669, § 25. Annotations: It was not an abuse of discretion for the trial court to deny a motion to vacate its order finding the marriage irretrievably broken where the parties had reached a settlement agreement, but one party refused to sign the agreement until she was able to take possession of certain property. Kibler v. Kibler, 287 Neb. 1027, 845 N.W.2d 585 (2014). Pursuant to subsection (1) of this section, dissolutions of marriage require that a hearing be conducted in open court and that oral testimony of witnesses or depositions of witnesses be received into evidence; relying upon pleadings alone is insufficient. Brunges v. Brunges, 255 Neb. 837, 587 N.W.2d 554 (1998). A court must be presented with some form of evidence, be it oral testimony or depositions, in order to make a meaningful finding whether a marriage is irretrievably broken. Wilson v. Wilson, 238 Neb. 219, 469 N.W.2d 750 (1991). In a case where the evidence was undisputed that the parties had not lived together for a long period of time, the trial court was correct in finding that the parties' marriage was irretrievably broken. Witcig v. Witcig, 206 Neb. 307, 292 N.W.2d 788 (1980). The finding that marriage was irretrievably broken based upon criminal history of defendant and plaintiff's categorical refusal to effect reconciliation was not unreasonable. Condreay v. Condreay, 190 Neb. 513, 209 N.W.2d 357 (1973).