Nonrestrictive “which” in Premarital Agreements Requires Equal Division of the Entire Marital Estate

Commentary on Seemann v. Seemann, 318 Neb. 643 (Neb. Mar. 21, 2025)

Introduction

In Seemann v. Seemann, the Nebraska Supreme Court resolved a pivotal interpretive dispute over a premarital agreement and, in doing so, set an important drafting and construction precedent for family law and contract law in Nebraska. The parties, Clint Seemann (appellee) and Lisa Seemann, now Lisa Newell (appellant), executed a premarital agreement in 2005. The agreement listed certain premarital assets and contained a two-sentence provision—paragraph 8—that would become the center of the appellate controversy:

“The assets of both parties listed in this agreement shall be considered as part of the marital property which shall be divided equally in the event of death or divorce. Marital property shall also include property that results from the efforts of CLINT and LISA during the marriage.”

After a prior appeal (Seemann I) corrected multiple valuation and classification errors and remanded for a redivision of the estate, the district court on remand split the assets listed in the agreement equally, but awarded the remainder of the marital estate unequally—ultimately leaving Lisa with 45.25% and Clint with 54.75% of the total marital estate. Lisa appealed again, arguing that paragraph 8 required an equal division of the entire marital estate, not just the listed assets. The Supreme Court agreed and reversed, holding that the premarital agreement mandates a 50/50 division of all marital property.

Summary of the Opinion

• The Court holds that paragraph 8 of the parties’ premarital agreement requires equal division of the entire marital estate upon divorce, not only the assets enumerated in the agreement.
• Applying Nebraska’s contract-interpretation principles, the Court determines the clause “which shall be divided equally” is a nonrestrictive relative clause that provides supplemental information about “marital property” and thus applies to all marital property.
• The district court erred on remand by equally dividing only the agreement-listed assets and then unequally dividing the remainder, yielding a 54.75%/45.25% split in Clint’s favor.
• The Supreme Court reverses and remands with directions to divide the entire marital estate equally in accordance with the agreement.

Analysis

Precedents and Authorities Cited

The Court’s analysis draws on an array of family law, contract law, and drafting authorities:

• Standards of Review: The Court reiterates its de novo review in dissolution cases for abuse of discretion (e.g., Tierney v. Tierney), but emphasizes that contract interpretation and ambiguity are questions of law subject to independent review.
• Marital Estate and Equitable Division: Nebraska common law generally includes property acquired during marriage in the marital estate, excluding premarital property. The “active appreciation rule” (e.g., Stephens v. Stephens) treats appreciation caused by either spouse’s efforts during marriage as marital. Under Neb. Rev. Stat. § 42-365, marital assets are divided equitably, usually one-third to one-half (e.g., Parde v. Parde, Stava v. Stava).
• Premarital Agreements under the UPAA: Parties may contract around equitable division through the Uniform Premarital Agreement Act (Neb. Rev. Stat. §§ 42-1001 to 42-1011). Nebraska recognizes that such agreements are enforceable if based on fair disclosure and otherwise valid (e.g., Simons v. Simons; Seemann I).
• Contract Construction: The Court canvasses Nebraska precedent that requires:
  • Determining ambiguity objectively (DH-1, LLC v. City of Falls City); opposing interpretations do not themselves create ambiguity.
  • Giving terms their plain and ordinary meaning (Wood v. Wood; Katskee v. Blue Cross/Blue Shield), reading the document as a whole (Brush & Co. v. W.O. Zangger & Son), honoring grammar and structure (U.P. Terminal F.C.U. v. Employers M.L. Ins. Co.), and avoiding surplusage (Restatement (Second) of Contracts § 203; Parent v. City of Bellevue Civil Serv. Comm.).
  • Recognizing that words generally have greater controlling force than punctuation (82 C.J.S. Statutes § 413).
• Usage and Style Authorities: Notably, the Court draws on leading usage guides and scholarship—Bryan Garner’s Redbook, Kenneth Adams, Joseph Kimble, and Richard Wydick—to explain the difference between restrictive and nonrestrictive clauses and the drafting choices between “that” and “which”.

Legal Reasoning

The dispute centered on whether the phrase “which shall be divided equally” in the first sentence of paragraph 8 restricted equal division to the listed assets or instead applied to all marital property. The Supreme Court adopted Lisa’s interpretation for several reasons.

• Plain language and grammar: The Court reads “which shall be divided equally” as a nonrestrictive relative clause supplying supplemental information about “marital property,” rather than a restrictive clause that limits the noun phrase to a subset. In American English usage, “which” is reserved for nonrestrictive clauses (ideally set off by commas). Although the sentence lacks a comma, the Court emphasizes that words outweigh punctuation when discerning meaning.
• Whole-text reading and anti-surplusage:
  • If “which shall be divided equally” were restrictive and applied only to the subset of listed assets, the second sentence (“Marital property shall also include property that results from the efforts of CLINT and LISA during the marriage”) would become functionally superfluous in the agreement’s context. That reading would reduce the second sentence to a vague restatement of the common-law active appreciation rule—without clarifying whether such property is divided equally or merely equitably under § 42-365.
  • Moreover, on Clint’s reading, the first sentence would redundantly declare the listed assets both to be marital and to be divided equally—without any need to deem them “marital” if the only purpose was to equalize them. The Court found that construction strained and inconsistent with giving effect to every clause.
• No ambiguity: The Court finds paragraph 8 is not reasonably susceptible to multiple conflicting meanings. Under its plain language—read in context and consistent with rules of grammar and drafting—the agreement requires equal division of all marital property, including both assets expressly listed and any marital property defined by effort during the marriage.
• Effect on remand: Because the premarital agreement contracted for equal division, the trial court’s reliance on the general “one-third to one-half” equitable range and its unequal division of the remainder of the estate was error. The case is reversed and remanded with directions to divide the entire marital estate 50/50.

Impact and Significance

This opinion is important well beyond the Seemann family’s case. It settles a practical and recurring question—how to construe prenup provisions that mix classification and division directives—and it does so with a clear preference for ordinary meaning, whole-text harmony, and usage-informed grammar.

• For Nebraska family law:
  • Confirms that spouses may contract for equal division of the entire marital estate, displacing § 42-365’s equitable-division default range, so long as the agreement is valid under the UPAA.
  • Clarifies that “active appreciation” can be swept into equal division if the prenup so provides, even though, by default, active appreciation is merely marital and subject to equitable (not necessarily equal) division.
  • Signals to trial courts: when a premarital agreement addresses division, courts must implement that bargain, not the default equitable range.
• For contract interpretation:
  • Reinforces Nebraska’s commitment to plain meaning, anti-surplusage, and reading text in context, including attention to grammar and syntax.
  • Emphasizes that punctuation is helpful but not controlling; the absence of a comma will not override the semantic function of a clause where the words indicate a nonrestrictive sense.
  • Encourages courts and lawyers to consult reputable usage and drafting authorities when evaluating whether a clause is restrictive or nonrestrictive.
• For drafting premarital agreements:
  • Precision matters. If the parties intend equal division of all marital property, say so plainly: “All marital property shall be divided equally upon divorce.”
  • If equal division is intended only for a subset (e.g., assets listed in an attached schedule), draft expressly restrictive language: “The assets listed in Schedule A shall be divided equally upon divorce,” and avoid ambiguity by using “that,” not “which,” and by locating the equal-division directive within the clause that defines the subset.
  • Use commas to set off nonrestrictive clauses and verify that the structure does not render any sentence superfluous.
• Litigation strategy:
  • When a prenup’s division clause is disputed, frame the issue as a question of law on interpretation, bringing forward whole-text, grammar, and anti-surplusage analyses.
  • Where trial courts default to equitable division despite a division directive in a prenup, Seemann provides a strong basis to seek reversal with directions.

Complex Concepts, Simplified

• Marital estate: The pot of assets subject to division in divorce. Generally includes what spouses acquire during marriage; typically excludes premarital property—unless a prenup says otherwise.
• Active appreciation rule: Increases in value of a nonmarital asset that are caused by either spouse’s efforts during the marriage are treated as marital.
• Equitable division vs. equal division:
  • Equitable (default under Nebraska law): A fair division, usually one-third to one-half.
  • Equal (by contract): An exact 50/50 split if the parties so agree in a valid premarital agreement.
• Premarital agreement (prenup): A contract between prospective spouses under the UPAA that can set classification and division rules different from the statutory defaults, assuming fair disclosure and validity.
• Restrictive vs. nonrestrictive clause:
  • Restrictive: Essential to identify which specific thing you mean; typically uses “that” without commas (e.g., “The assets that are listed in Schedule A”).
  • Nonrestrictive: Adds extra information about something already clearly identified; typically uses “which” with commas (e.g., “The marital estate, which shall be divided equally, includes…”). In Seemann, even without a comma, the Court treated “which shall be divided equally” as nonrestrictive based on wording and context.
• Standard of review: Nebraska appellate courts review dissolution cases de novo for abuse of discretion, but contract interpretation and ambiguity are pure questions of law reviewed independently.

Case Background in More Detail

• Seemann I (2024): The Supreme Court corrected the composition and value of the marital estate by:
  • Including the $1,347,666 active appreciation of Clint’s interest in 75th and L Street, LLC.
  • Adding $80,000 in carpet and tile retained by Clint.
  • Adding $27,768 for Clint D. Seemann, P.C.
  • Correcting Lisa’s retirement valuation downward by $50,000 (to $1,430,720).
  The Court reversed the equalization payment and remanded for a fresh “equitable division” considering the corrected estate and any relevant prenup provisions. It did not then decide whether paragraph 8 mandated equal division of all marital property.
• Remand proceedings: The district court split the agreement-listed assets equally, ordering Clint to pay an equalization of $229,464 on that subset, but awarded the remainder of the marital estate unevenly (about 62.57% to Clint; 37.43% to Lisa), resulting in an overall 54.75%/45.25% split favoring Clint. The court invoked the general equitable range and did not explain why the entire estate should not be equal given the prenup.
• Current appeal (2025): Lisa contended that paragraph 8 requires equal division of the entire marital estate. The Supreme Court agreed, reversed, and directed the district court to divide the whole marital estate equally.

Why This Decision Matters

• Doctrinal clarity: The Court offers a model of text-based contract interpretation in family law, anchoring results in usage, grammar, and whole-text coherence.
• Predictability in prenup enforcement: Parties can rely on Nebraska courts to enforce clear division directives in premarital agreements—even where those directives depart from equitable division norms.
• Drafting discipline: Lawyers receive a clear signal: choose “that” for restrictive clauses and “which” for nonrestrictive; use commas appropriately; and avoid structure that creates surplusage or ambiguity about whether a division directive applies to all marital property or only a subset.

Conclusion

Seemann v. Seemann establishes a crisp rule with practical reach: a premarital agreement stating that “marital property, which shall be divided equally” obligates Nebraska courts to split the entire marital estate 50/50. The opinion showcases Nebraska’s methodological commitments—plain meaning, context, anti-surplusage, and grammar-aware interpretation—and underscores that while equitable division is the default, parties are free under the UPAA to choose equal division by clear agreement. For drafters, the case is a cautionary tale and a roadmap: say precisely what you mean, and align your words, punctuation, and structure so no sentence does unnecessary work. For courts and litigants, it is a reminder that when a valid prenup speaks, it governs.