§ 42-378 — Nullity of marriage; procedure; costs

When the court finds that a party entered into the contract of marriage in good faith supposing the other to be capable of contracting, and the marriage is declared a nullity, such fact shall be entered in the decree and the court may order such innocent party compensated as in the case of dissolution of marriage, including an award for costs and attorney fees.

Legislative History

Source: Laws 1972, LB 820, § 32. Annotations: This section does not apply merely because a party believes that he or she is validly married or has a subjective desire to be married; rather, the parties must enter into the contract of marriage. Seivert v. Alli, 309 Neb. 246, 959 N.W.2d 777 (2021). This section is not applicable and does not provide a legal basis for property division and award of alimony when the parties' marriage is valid during its duration and never void or voidable. Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522 (2002). This section applies when one or both of the parties are innocent. A party claiming good faith under this section cannot close his or her eyes to suspicious circumstances; however, attending a divorce hearing does not trigger a duty to inquire as to the date on which the divorce will become final. Under this section, good faith means an honest and reasonable belief that the marriage was valid at the time of the ceremony. Whether a party acted in good faith depends on the facts and circumstances of the case. Good faith is presumed; the burden of proof rests squarely on the party charging bad faith. Good faith may result either from an error of fact or from an error of law. Hicklin v. Hicklin, 244 Neb. 895, 509 N.W.2d 627 (1994). This section protects a party who has entered into the contract of marriage in good faith supposing the other party to be capable of marrying and the marriage is declared a nullity. Randall v. Randall, 216 Neb. 541, 345 N.W.2d 319 (1984).