Benda v. Sole: Written Certification Under § 42-361.01 Is Not Jurisdictional; Legal Separation Decrees Are Final and Preclusive

Introduction

In Benda v. Sole, 319 Neb. 745 (Neb. Aug. 29, 2025), the Nebraska Supreme Court addressed a recurrent but under-theorized friction point in family law: when—and how—parties may revisit terms embedded in a legal separation decree during a later dissolution action. The Court used this dispute to clarify an important procedural question—whether the written certification contemplated by Neb. Rev. Stat. § 42-361.01(3)(b) (that the spouses “shall thereafter live separate and apart”) is a jurisdictional prerequisite to a legal separation decree entered without an evidentiary hearing. The Court held it is not.

The case also reaffirms and harmonizes doctrines of finality and preclusion in the separation–dissolution sequence. Once a court accepts and incorporates a settlement into a legal separation decree and the time to appeal lapses, those terms are final and may not be collaterally attacked—property and maintenance terms absent fraud or gross inequity, and child-related terms absent a material change in circumstances. The husband’s effort to reopen all issues—property division, custody, support, and alimony—failed. The Court affirmed the district court’s operative dissolution decree, which largely restated the settled terms and adjusted an equalization payment to account for a previously undisclosed retirement account.

Summary of the Judgment

The written certification under § 42-361.01(3)(b) that parties “shall thereafter live separate and apart” is not a jurisdictional requirement. Its absence does not render a legal separation decree void ab initio.
Appellate courts apply void ab initio sparingly and distinguish between lack of subject-matter jurisdiction and erroneous exercises of jurisdiction. Only judgments truly entered without jurisdiction are void.
A decree of legal separation is a final, appealable order. If not appealed within 30 days (Neb. Rev. Stat. § 25-1931), it cannot be collaterally attacked except if void ab initio.
Terms of a settlement incorporated into a separation decree become final and enforceable after the appeal period and may be altered only through statutory modification procedures, a timely § 25-2001 motion to vacate, or the court’s inherent term power.
Property and maintenance provisions will not be vacated or modified absent fraud or gross inequity; child custody, parenting time, and child support may be modified only upon a material change of circumstances in the child’s best interests.
Issue preclusion applies to the separation decree’s findings, including conscionability; however, restating those terms in a later dissolution decree is not relitigation and does not violate preclusion.
The 60-day waiting period for divorce under § 42-363 is jurisdictional; a decree entered before it expires is void. The district court properly vacated a first dissolution decree entered at day 47 and then entered a valid operative decree after the period elapsed.
The district court did not abuse its discretion in approving a stipulation increasing the wife’s equalization payment to account for the husband’s previously undisclosed retirement account.

Background

The parties married in 2006 and had two children. In April 2022, the wife filed for legal separation, accompanied by a notarized Legal Separation Settlement Agreement (LSSA) signed by both parties (husband pro se). The district court entered a legal separation decree in June 2022, expressly finding the agreement was not unconscionable and ordering compliance. The husband did not appeal.

The wife later filed for dissolution. The court entered a first dissolution decree 47 days after the husband’s voluntary appearance—premature under § 42-363’s 60-day rule—rendering that dissolution decree void. Subsequent proceedings culminated in an operative dissolution decree (October 1, 2024) that restated the separation terms and incorporated an agreed increase to the wife’s equalization payment after discovery of the husband’s undisclosed retirement account. The husband, now represented, appealed—seeking to void both decrees and re-litigate all issues.

Analysis

Precedents Cited and Their Influence

Wilson v. Wilson, 238 Neb. 219, 469 N.W.2d 750 (1991) and Brunges v. Brunges, 255 Neb. 837, 587 N.W.2d 554 (1998): Both cases reversed dissolution decrees that were entered without proper evidentiary hearings and without written certifications (then not yet authorized) establishing the irretrievable breakdown of the marriage. These cases establish that pleadings alone were insufficient for findings required by statute. The Court invoked these decisions to underscore the difference between procedural error (reversible on direct appeal) and jurisdictional defects.
Kibler v. Kibler, 287 Neb. 1027, 845 N.W.2d 585 (2014): After the Legislature added a written-certification alternative to hearings, Kibler held that, even if a decree might not satisfy § 42-361’s evidentiary predicates, the failure was not jurisdictional and did not render the decree void. This case is the springboard for Benda’s core holding: the § 42-361.01(3)(b) certification for legal separations is not jurisdictional.
Wymore v. Wymore, 239 Neb. 940, 479 N.W.2d 778 (1992): The 60-day waiting period in § 42-363 for divorce is jurisdictional; a decree entered earlier is void. The Court uses Wymore to contrast a truly jurisdictional defect (§ 42-363) with non-jurisdictional requirements like § 42-361.01’s certification.
Parish v. Parish, 314 Neb. 370, 991 N.W.2d 1 (2023): The Court quotes Parish emphasizing that void ab initio is applied sparingly and that erroneous exercises of jurisdiction are not the same as lack of jurisdiction. This frames the Court’s refusal to label the separation decree void.
Becher v. Becher, 311 Neb. 1, 970 N.W.2d 472 (2022); Seid v. Seid, 310 Neb. 626, 967 N.W.2d 253 (2021); State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997): These cases support the finality of judgments and limits on collateral attacks—core to the Court’s holding that the unappealed separation decree could not be reopened wholesale.
Dahlheimer v. Dahlheimer, 5 Neb. App. 222, 557 N.W.2d 719 (1996): The Court of Appeals held that a legal separation decree is final and appealable and that proceedings to convert separation to dissolution do not reopen previously decided property, custody, support, and alimony provisions. The Supreme Court expressly agrees, effectively elevating Dahlheimer’s approach with clear endorsement.
Pendleton v. Pendleton, 242 Neb. 675, 496 N.W.2d 499 (1993) and Connolly v. Connolly, 299 Neb. 103, 907 N.W.2d 693 (2018): Dissolution courts may address matters not decided in a prior separation decree and may divide property acquired after separation. This supported the court’s inclusion of matters not previously adjudicated (e.g., name restoration and the newly identified retirement asset affecting equalization).
Anderson v. Anderson, 222 Neb. 212, 382 N.W.2d 620 (1986): The same standards apply to legal separation decrees as to dissolution decrees for property division and alimony—used to frame subsuming settlement terms into court judgments.
Rice v. Webb, 287 Neb. 712, 844 N.W.2d 290 (2014); Ryder v. Ryder, 290 Neb. 648, 861 N.W.2d 449 (2015); Gomez v. Gomez, 303 Neb. 539, 930 N.W.2d 515 (2019): Once incorporated into a decree, settlement agreements lose their purely contractual character and become judgments enforceable as such—a premise for the decree’s preclusive force.
Windham v. Kroll, 307 Neb. 947, 951 N.W.2d 744 (2020); Tilson v. Tilson, 299 Neb. 64, 907 N.W.2d 31 (2018); Carlson v. Carlson, 299 Neb. 526, 909 N.W.2d 351 (2018): These decisions supply the post-decree modification standards: child-related terms require a material change of circumstances serving the best interests; property/maintenance terms can be revisited for fraud or gross inequity.

Legal Reasoning

Certification in § 42-361.01(3)(b) is not jurisdictional.
The statute allows a court to enter a legal separation decree without a hearing if two conditions are met: (a) a 60-day lapse after service and (b) both parties have certified in writing that they will live separate and apart, have tried to reconcile, filed all required documents, and have a signed settlement resolving all issues. The Court, guided by Kibler and the structure of comparable dissolution provisions (§ 42-361), holds that the absence of the written certification, while error, does not deprive the court of subject-matter jurisdiction. By contrast, § 42-363’s 60-day waiting period for divorce is textually framed as a temporal bar to the court’s power to hear or enter decree, and is jurisdictional. The differences in statutory language matter.
Void ab initio doctrine applied sparingly.
The Court distinguishes between judgments entered without jurisdiction (void) and judgments entered with jurisdiction but containing legal error (erroneous but enforceable unless timely appealed). Because the district court had jurisdiction over the separation and over the parties, the separation decree’s potential defect did not make it void; it could have been corrected on direct appeal, not by collateral attack years later.
Finality and collateral attack.
A legal separation decree is a final, appealable order. Under § 25-1931, an appeal must be filed within 30 days. Absent a statutory/common-law pathway, collateral attacks on final orders are allowed only if the order is void ab initio. The husband’s attempt to set aside conscionability and re-open all issues in the dissolution was an impermissible collateral attack on the unappealed separation decree.
Subsuming settlement agreements into the decree—and modification channels.
Once a court approves and incorporates a settlement into a separation decree, its terms become the court’s judgment. After the appeal window closes, those terms may be altered only via:
- A statutory modification proceeding (e.g., material change for child-related provisions),
- A timely § 25-2001 motion to vacate, or
- The court’s inherent term power.
Property and maintenance terms may be revisited only for fraud or gross inequity; none was claimed or proven here. Child-related terms require proof of a material change affecting best interests; no such claim was made.
Issue preclusion—no violation by restating settled terms.
The separation court expressly found the LSSA not unconscionable and ordered compliance. Those issues were finally determined. The later dissolution court did not “relitigate” them; it restated them to carry forward the settled structure. Issue preclusion therefore was not offended. The court was also permitted to address issues not decided in the separation decree, such as restoring the wife’s maiden name and adjusting the equalization payment to account for an asset previously undisclosed by the husband.
First dissolution decree void; operative decree valid.
The first dissolution decree was properly vacated as void under § 42-363 because it was entered before day 60. After the waiting period elapsed, the court entered the operative dissolution decree; jurisdiction then existed. The husband gained nothing from the earlier affidavit’s mistaken assertion about the 60-day count because the operative decree was entered well after the statutory period.
Equalization payment modification was conscionable.
The husband voluntarily disclosed a previously overlooked retirement account and jointly stipulated to increase the wife’s equalization payment to reflect that marital asset. He affirmed that he acted with full knowledge and considered the adjustment reasonable. The district court found no fraud or gross inequity, and the Supreme Court found no abuse of discretion in incorporating the modification into the operative decree.
Evidentiary objections (Exhibits 19 and 20).
The Court held these did not affect the issues properly before it. Exhibit-related skirmishes (including discovery objections without a motion to compel) had no bearing on the controlling grounds for decision.

Impact and Practical Consequences

Clear line between jurisdictional and non-jurisdictional prerequisites in legal separation. Practitioners can no longer plausibly argue that omission of the § 42-361.01(3)(b) certification strips a court of subject-matter jurisdiction. Such an omission may be reversible error on direct appeal, but it will not render the decree void.
Reinforced finality of legal separation decrees. Parties seeking to challenge property, maintenance, custody, or support determinations embedded in separation decrees must appeal within 30 days or use the narrow post-judgment channels. Later dissolution actions are not a second bite at the apple.
Tighter limits on collateral attacks. Litigants cannot repackage conscionability arguments or global do-overs as jurisdictional challenges years later. Counsel should raise such issues promptly or risk forfeiture.
Issue preclusion carefully cabined. A dissolution decree may recite and enforce previously decided separation terms without violating preclusion and may address issues not previously adjudicated (e.g., post-separation assets or new agreements).
Pro se cautionary tale. The husband’s pro se status at separation did not immunize him from the decree’s finality. His signed certifications and acknowledgements mattered. Lawyers should advise pro se opponents—and courts should confirm—that parties understand the preclusive weight of settlements incorporated into decrees.
Strict adherence to § 42-363’s 60-day waiting period for divorce. That requirement remains jurisdictional. Courts and counsel must vigilantly calendar it. By contrast, compliance missteps under § 42-361 or § 42-361.01 bear on error, not jurisdiction.

Complex Concepts Simplified

Subject-matter jurisdiction vs. erroneous exercise of jurisdiction: Jurisdiction asks whether the court has power to hear and decide a class of cases. If it does, an error in how the court proceeds usually makes the judgment erroneous, not void. Only a true lack of jurisdiction makes a judgment a legal nullity.
Void ab initio: A judgment treated as if it never existed. Nebraska courts apply this sparingly—typically where there is a fundamental jurisdictional defect (e.g., the divorce waiting period).
Collateral attack: An attempt to undermine a final judgment in a proceeding other than a direct appeal or authorized motion to vacate/modify. Generally prohibited unless the judgment is void ab initio.
Issue preclusion (collateral estoppel): Stops a party from re-litigating an issue already decided in a prior action where the party had a full and fair opportunity to litigate. It applies to issues actually decided and necessary to the judgment.
Conscionability review of settlement agreements: Courts must refuse to enforce marital settlements that are unconscionable. If a court approves and incorporates the agreement into a decree and no appeal is taken, later challenges are tightly constrained (fraud/gross inequity for property/maintenance; material change for child-related terms).
Equalization payment: A payment used to equalize the net value each spouse receives after marital property is divided. If a previously undisclosed marital asset comes to light, parties may stipulate to adjust the payment, subject to the court’s conscionability review.

Key Statutory Framework

§§ 42-351(1), 42-356: Confer jurisdiction and govern hearings in marital actions.
§ 42-361 (dissolution findings) and § 42-361.01 (legal separation findings): Authorize entry of decrees after hearing, or without hearing if written certifications and other statutory predicates are satisfied.
§ 42-363: 60-day jurisdictional waiting period for divorce.
§ 42-364, § 42-364.17: Child custody and support determinations and required incorporations in decrees.
§ 42-366: Settlement agreements; binding effect and incorporation into decrees.
§ 42-368: Enforcement and modification pathways.
§ 25-1931: 30-day time to appeal final orders.
§ 25-2001: Motion to vacate; court’s term power to modify/vacate judgments.

Conclusion

Benda v. Sole clarifies Nebraska family-law procedure at two critical junctures. First, the Court draws a sharp statutory distinction: while § 42-363’s 60-day waiting period for divorce is jurisdictional, the written certification under § 42-361.01(3)(b) for legal separation without a hearing is not. Omission of that certification may be error, but it does not void the decree. Second, the Court fortifies the finality and preclusive reach of legal separation decrees: once settlement terms are approved, incorporated, and the appeal window closes, parties cannot collaterally reopen them absent defined and narrow grounds (fraud/gross inequity for property and maintenance; material change affecting a child’s best interests for custody/support). The decision also sensibly permits dissolution courts to recite and enforce prior separation terms while addressing new or unresolved matters.

For lawyers and litigants, the message is straightforward: challenge separation decrees promptly and through the proper channels. Do not expect a later dissolution to provide a tabula rasa. And mind the statutory distinctions—some requirements go to jurisdiction, others to error. Benda thus enhances procedural clarity while promoting finality and stability in family-law judgments.