Updated August 1st, 2013
The purpose of this handbook is to provide students with general information on areas of law that most frequently concerns them. The information in the handbook is not intended as a substitute for legal advice. Students who are confronted with legal problems or who need specific advice are encouraged to seek assistance from a licensed attorney at Student Legal Services or in the community.
- What Can I Do If My New Car Has Serious Repair Problems?
If you have purchased a new car that is having constant, serious repair problems, Nebraska has a "lemon law" (Nebraska Revised Statute §60–2703) that might help you. Make an appointment with a lawyer to see if your situation fits the criteria and what steps you need to take. The law allows the buyer of a new car to get a refund on the purchase price of a new replacement car under the following conditions:
The car does not conform to express warranties and the problem substantially impairs the car´s use and market value.
The consumer reports the problem to the manufacturer or authorized dealer during the term of the express warranties or within one year from the delivery of the car to the consumer, whichever is earlier.
The manufacturer or dealer is unable to repair the car or correct the defect after a reasonable number of attempts. (Reasonable number is four or more attempts to fix the same problem or the car is out of service by reason of repair for a total of more than 40 days.)
The problem must not be the result of abuse, neglect, or unauthorized modifications of the car by the consumer.
If the manufacturer has established or participates in a dispute settlement procedure certified by the Department of Motor Vehicles, the consumer must participate in that procedure before becoming entitled under the lemon law to a refund or replacement car.
- What Can I Do About Problems With My Used Car?
Used cars are sold "AS IS" with no guarantees or warranties! "AS IS" means you accept the car with all of its problems, whether they are known to you at the time of purchase or not. Therefore, there are several things you should do to protect yourself when buying a used car.
Nebraska´s Lemon Law Applies Only to NEW Car Purchases.
Be certain to have a used car checked out by a qualified and trustworthy mechanic of your choice BEFORE you buy it or put down a deposit.
Used cars are sold "AS IS" with no guarantees or warranties! "AS IS" means you accept the car with all of its problems, whether they are known to you at the time of purchase or not.
If you own or drive a car you must purchase liability insurance.
Never admit fault, apologize, or offer to pay for damages, even if you think you caused an accident.
Before making a rental car reservation, know all of the charges and consult your auto insurance and credit card policies regarding what coverage you have.
- Can You Give Me Some Tips On Buying A Used Car?
Investigate and research the kind of car you are considering for purchase. Obtain the NADA Blue Book Value (http://nada.com/ - choose "consumer" and then "used car values") and the Consumer Reports Best Buy repair frequency record (http://www.consumerreports.org/cro/home.htm). Check the title to see if it is a "salvage" title, which lowers the Blue Book value by one-third to one-half. Contact your insurance agent for the estimated cost of insurance and ask the County Clerk for sales tax, licensing, and registration fees. Also compare the value of any trade-in you may have.
Decide whether to buy from a dealer or private owner. You can check on a dealer´s reputation through the Better Business Bureau.
In either instance, be certain to have the car checked out by a qualified and trustworthy mechanic of your choice BEFORE you buy it or put down a deposit. This may cost $50 to $100, but it can save you from a bad deal and hundreds or thousands of dollars in car repairs. Review the car´s repair and maintenance records. Look for signs that the auto has been involved in an accident.
Be wary of high-pressure sales techniques. A deposit to hold the car is usually nonrefundable. Once you sign a contract for purchase, it is binding on you and cannot be canceled. Keep a copy of the contract, and make certain it fully and completely expresses all of the terms of your agreement. Oral representations and negotiations not included in the written contract are not binding. If you have questions, Student Legal Services will review any proposed contract before you sign.
Shop around for financing. If you cannot afford to pay cash for your car, the NADA Blue Book will give you an estimated loan value so you can tell how much of the purchase price you will be able to borrow. Look for the lowest interest rate on a car loan. Consider your hometown bank or credit union or having your parents co-sign the loan. The highest interest rate and the worst financing deal are usually offered through the car dealer or a loan company associated with the car dealer.
Obtain insurance before you buy, as the risk of loss passes to you on receipt of the title. Make sure you have a notarized title signed by all persons named in the title. Check to see that all liens are released before handing over the money. Also, obtain a bill of sale that includes the vehicle identification number (VIN), date, purchase price, owner´s signature, and an odometer statement or reading.
If you purchase your vehicle from a dealer, you have 30 days in which to apply for title and license of the vehicle. Keep your bill of sale with you for proof of ownership during this period. You must license the auto in the county where it is principally stored and kept, except a student may license a vehicle in the county of his or her residence. You will need the title, bill of sale, odometer reading, and proof of insurance to register and license the vehicle.
- How Much Insurance Do I Need?
If you own or drive a car, you must purchase liability insurance. The minimum liability insurance required by Nebraska law is $25,000 for each person, $50,000 for each accident, and $25,000 property damage. Failure to carry basic liability insurance can result in the loss of your license and being charged with a Class III Misdemeanor if you are found to be responsible for an accident and cannot pay for the property damage and physical injury suffered by the injured parties. The maximum penalty for conviction of the Class III Misdemeanor of Failure to Prove Financial Responsibility is a $500 fine and three months in jail. In addition, you will not be allowed to register your car nor obtain license plates unless you present proof of insurance at the County Clerk´s office.
An example best illustrates the importance of carrying automobile liability insurance. Suppose you are driving your car and after stopping at a stop sign you proceed through the intersection. You fail to notice an approaching car. You collide with the car, causing property damage and personal injury to the driver and his passenger. The police arrive on the scene and issue a citation to you for failure to yield. The officer asks you to produce the little card issued by insurance companies proving you have current liability insurance. You have no little card because you have no insurance. The officer issues another citation for failure to prove financial responsibility. In the next few weeks you receive a letter from the Department of Motor Vehicles telling you that your license will be revoked in two weeks unless you post a bond for several thousand dollars. In addition, you are sued by the other driver and passenger. Not only are you now in the position of being fined and possibly sent to jail, but also the civil liability could be so costly that you are forced to consider bankruptcy. Avoiding this type of nightmare is well worth the money spent for a basic liability insurance policy.
- Will Liability Insurance Cover The Damage To My Car?
NO, liability insurance will not cover any damage to your car from an accident or from vandalism, etc. There are other types of automobile insurance that you can buy to cover the cost of damage to your car. Ask your agent about comprehensive and collision coverages. Each coverage type, of course, will add to the cost of the insurance premiums.
- Why Should I Pay For Collision Insurance?
Nebraska has a comparative negligence law. This means, for example, that if you are in an accident and you are 20% negligent while the other driver is 80% negligent, you can recover 80% of your damages from the other driver and his insurance company. If you carry collision insurance in addition to liability insurance, your own insurance company will cover the remaining 20% minus any deductible you are required to cover. The new law makes it more important for everyone to carry collision in addition to basic liability insurance. Remember that underinsured and uninsured coverage will only compensate you for bodily injury, not property damage.
- Do I Need Insurance On A Rental Car?
The National Association of Attorneys General has noted that "the actual cost of renting a car may exceed the advertised rate by as much as 75%" because "advertised car rental rates in print, broadcast, and Internet advertising may not fully or clearly and conspicuously disclose the fees, taxes, and surcharges." So, before making a rental car reservation at that great sounding daily or weekly rate, ask to know all of the charges, including sales taxes, airport taxes, mandatory insurance policies, miscellaneous facility fees, and the loss damage waiver (sometimes called the collision damage waiver).
If you agree to pay the loss damage waiver fee, the rental car company waives its right to recover money from you for damage to the car from a collision or for theft of the car. The waiver does not affect your liability for damage to other vehicles or property.
If your auto insurance covers you for damage to a rental vehicle you will not need to purchase the loss damage waiver. Likewise, some credit cards offer coverage for damage to a rental car if you charge the rental to the card. Therefore, before you book your next trip, consult your automobile insurance and credit card policies regarding what coverage you have. And remember to ask about all of the "additional" charges for the rental car.
Be sure to read the rental contract carefully before signing. Verbal or oral promises by the rental company representative are not enforceable. Make them put it in writing in the contract.
- What Should I Do If I Am In An Automobile Accident?
The action taken immediately after an accident may have great impact on the legal outcome. The following suggestions may help you protect your legal position should you be involved in an accident:
Stop Your Car: It is against the law to leave the scene of an auto accident, whether the damage is limited to property or people are injured. You should stop immediately; leaving your car in the position of the accident unless doing so obstructs traffic or endangers life or property. If you have flares or reflectors, set them out to warn oncoming traffic.
If you hit a parked car and no one is in the car you are required to leave a note with your name, address and telephone number in a visible place. Leaving the scene of an accident can result in criminal charges carrying penalties that include fines, jail and the revocation of your driver´s license.
Notify The Police And Render Aid: It is best to notify the police even if the other driver appears cooperative and offers to pay for damage. A police report may be helpful to you later if you have to sue.
If someone is injured, make sure you tell the police when you call, so emergency medical care arrives as soon as possible. Help an injured person by keeping him or her warm and comfortable. Unless you are trained in first aid, it is usually best not to move an injured person. Telling the police to bring medical help might be the best way of helping.
Make sure the officer hears your side of the story. If the officer fails to measure distances and you feel measurements are to your advantage, politely ask him or her to do so. If you have any witnesses who support your version of the facts, have them talk to the officer.
Identify Others Involved: Try to stay calm and observe what is going on around you while you are waiting for the police to arrive. Take notes, make diagrams, and measure distances. Collect names, addresses, and phone numbers of witnesses favorable to you. For example, the little old lady on the corner tells you she saw the other driver run a red light. Be nice to her and get the information you or your lawyer may need to contact her later.
Any driver involved in a car accident is required by law to furnish his or her name, address, driver´s license number, and vehicle registration information to the other parties.
Do Not Admit Fault Regarding The Accident: Never admit fault, apologize, or offer to pay for damages, even if you think you caused the accident. Anything you say to the other driver, a potential witness, or the police may be brought out in court later to your disadvantage. Your immediate judgment that the accident was your fault might change when you discover additional factors such as the other driver was intoxicated or violated a traffic law.
See Your Doctor Immediately If Injured: If you think you may be injured even slightly, it is best to see a doctor as soon as possible. The seriousness of some injuries does not become apparent until later. Seeing your doctor immediately serves to document your injury claim and prevent a legally detrimental time lapse between the accident and your report of injury. Do not accept a check or sign a release from liability for property damage or injuries until you have consulted an attorney.
Fill Out And Send In Accident Report: If an auto accident results in injury or more than $1,000 property damage, you are required by law to complete and file an accident report within 10 days of the accident. A police officer usually provides the form at the scene of the accident. Accident report forms can also be obtained from the Lincoln Police Department (http://www.lincoln.ne.gov/city/police/stats/acc.htm), the Department of Motor Vehicles, or the Sheriff´s Office. It is a good idea to have an attorney check the report before you send it in. You should also keep a photocopy for your own files. At the same website you can and should obtain a copy of the police investigator´s report of the accident.
Notify Your Insurance Company: Don´t delay in contacting your insurance company. Some policies require notification within a certain time or coverage may be denied. If you are not getting satisfactory cooperation from an insurance company, you should consult Student Legal Services or a private attorney.
- How Do I Find A Reputable Mechanic For Repairs?
Unless you are required by a car warranty or insurance policy to have your car repaired at a particular dealership or repair place, you should research the reputation of a car repair shop before taking your car there. You can also call the Better Business Bureau (http://www.lincoln.bbb.org/) or the Attorney General´s Office Division of Consumer Affairs (http://www.ago.state.ne.us/) when checking out the reputation of a repair shop.
Ask friends who have the same make of car where they take their car for repair.
Use your sense of human nature: Do these seem like people you can trust?
Some of the unhappiest car repair disputes develop when family or friends are hired to do the work. Make sure the person is capable and equipped to do a good job. Make sure the terms of the agreement are understood and in writing, including price and completion date.
- Do I Need An Estimate?
Get an estimate in writing. Ask the repair person to write down the estimated cost of repairing your car including:
What exactly is going to be done?
How much will it cost, including parts and labor?
When will the work be completed?
Once you have an estimate, do comparison-shopping before you hire the repairperson to do the work. Remember that the cheapest estimate may not be the best choice in terms of workmanship and reliability.
- What About Repair Contracts?
Beware of contracts presented by the repair shop. If you are presented with a contract by the repair shop when you bring your car in for work, read it before you sign. If parts of the contract make you uncomfortable, discuss it with the repairperson and make changes by crossing out particular clauses. Make sure you limit what you are authorizing the repair company to do by writing the limitations on the contract. For example, you may want to write on the contract, "I do not authorize work on my car exceeding the total cost of $100." If the time element is important to you, make sure the completion date and time is written on the contract. You may also have to specifically request that the old parts be returned to you.
If you are going to have extensive work done on a car (such as reupholstering your 1965 Porsche), it is best to arrange a meeting to discuss fully with the repairperson the work that is to be done. Take notes and afterward draft a contract that contains the terms discussed. This approach clarifies the agreement for both parties and often clears up potential disputes. After both parties have signed, make copies for everyone and keep the original in your file.
- What If I Disagree With The Charges On The Repair Bill?
If precautions have been taken a dispute over repair bills can often be avoided.
However, disputes over repair bills do happen and they often leave the car owner in an inconvenient position because the repairperson refuses to release the car until the bill is paid. Holding a car for repair costs is called an artisan´s or repair person´s lien. In Nebraska, for an artisan´s lien to be valid, it must be filed within 60 days from the date of completion of the work. A car owner who disputes the repair bill and the lien may sue the repairperson in an action for replevin (return of the car) and damages in civil court.
It is of course easier and often cheaper to handle the dispute out of court by negotiating a satisfactory settlement with the repair shop. If you have trouble with the person you are dealing with, ask to talk to his or her boss, or the manager or owner of the shop. Negotiate when you are not angry.
In many cases, the two parties need help in negotiating a solution. Mediation is a process in which a neutral person trained as a mediator sits down with the parties and helps them find a solution. In Lincoln you can contact The Mediation Center by calling 441-5740 or go to the website at www.TheMediationCenter.org. The mediator will contact the other party to find out if the person or company is willing to try mediation. Reaching a solution through mediation is usually much quicker and cheaper than going to court.
If you cannot negotiate or mediate a settlement, you may need to consider the possibility of a lawsuit. Claims exceeding $3,500 cannot be brought to Small Claims Court.
- How Do I Apply For A Credit Card?
Applying for a credit card is an easy process. As a college student, you may feel overwhelmed by the abundance of credit card offers suddenly appearing in your mailbox. Although you may not be making lots of big purchases, card issuers want you as a client for an increased likelihood of retaining your business down the road. The Nebraska Attorney General offers these helpful hints about credit cards:
- Not all credit cards are equal. Shop around for the best terms.
- Limit the number of credit cards you have. The more you have, the more likely you are to spend.
- Read the cardholder agreement and understand the terms.
- Pay your credit card bill in full and on time every month to avoid interest charges.
Students can prevent pre–approved credit card offers from being mailed to them by opting out at http://optoutprescreen.com.
Make sure you know the interest rate and look for the lowest rate you can get. Many companies offer good deals for college students just starting out. If you can´t figure out which offer is best for you, ask your parents, or a trusted person with a good credit history for advice. Chances are you can´t go wrong with a well-known and respected company. Remember to carefully examine the fine print of credit card offers.
The new federal Credit Card Accountability, Responsibility, and Disclosure (CARD) Act bans on-campus gift marketing of credit cards to students. No credit card issuer may offer "any tangible item" to a student of any age as an incentive to apply for a credit card, either on campus or at a university-sponsored event.
- Not all credit cards are equal. Shop around for the best terms.
- What If A Credit Card Company Refuses My Application Because Of My Race Or Gender?
A credit card company should never refuse an application based on race or gender. The Equal Credit Opportunity Act (ECOA), a federal law, protects against such discrimination. The ECOA makes it illegal for any creditor to "discriminate against any applicant with respect to any aspect of a credit transaction on the basis of sex or marital status."
- Can A Credit Card Company Discriminate Against Me Based On My Age?
The law also protects against discrimination based on age. However, if an applicant is not old enough under state law to sign a binding contract age may be considered. Under a new Nebraska law, which became effective March 4, 2010, all persons 18 and older may enter into a binding contract. Since the age of an applicant has economic consequences the law permits creditors to consider certain age related information such as how long until you retire or how long your income will continue.
The new federal Credit Card Accountability, Responsibility, and Disclosure (CARD) Act prohibits the extension of credit to persons under age 21 unless they have a co-signer or can independently demonstrate their ability to repay the debt. Co-signers must be over age 21 and must have a means to repay the debt incurred by the student.
- Can A Credit Card Company Discriminate Against Me Based On My Marital Status Or The Fact That I Receive Public Assistance?
The Equal Credit Opportunity Act (ECOA) does not allow creditors to ask about your marital status unless it is a joint account, or it is based on spousal income, or if residency is in a community property state, which Nebraska is not. Creditors cannot turn your application down solely because you receive public assistance, child support or alimony as sources of income.
- What Does The Equal Credit Opportunity Act (ECOA) Require?
The ECOA requires creditors to notify an applicant of its acceptance or rejection within 30 days from receipt of the application. If your application is rejected you have a right to request a written response as to why your credit application was denied. The creditor must respond with the specific reasons within 60 days.
If you believed that you have been discriminated against, cite the ECOA law to the creditor. If that fails, consider contacting the Federal Trade Commission to file a complaint. For more information about how to file a complaint, check out http://www.consumeraction.gov, www.ftc.gov, or call the toll-free number, 1-887-FTC-HELP.
- How Do I Establish A Credit History To Show That I Am Financially Responsible?
As a college student, you may not have had many opportunities to establish credit. You may begin to build credit by opening a checking or savings account and keeping the accounts in good standing by avoiding overdrafts. If you have rented an apartment for a length of time and have a good history of paying your rent on time then you could see if your landlord would be willing to serve as a credit reference for you. You can also apply for a department store credit card, but be sure to pay the bill each month. Otherwise the purpose of showing your responsible use of credit cards will be defeated.
- How Do I Explain To My Card Issuer That My Card Is Lost Or Was Stolen?
Call the issuer immediately after you realize what happened. Most companies have 24-hour access. The creditor will most likely ask you questions such as:
When did you discover the card was lost or stolen?
Where were the cards when you last saw them? (purse, wallet, at home, etc.)
What other credit cards are also missing?
Have you reported the incident to the police?
Any other relevant information you may be able to offer. Try to save the receipts from the purchases you make with your credit card, so that if it is stolen or lost, you will have proof of the purchases that were actually yours.
- What Obligations Does A Credit Card Company Have When My Credit Card Is Stolen?
As a credit card holder you are protected by the Consumer Protection Act which includes more detailed consumer provisions in the Truth in Lending Act. The Truth in Lending Act (TLA) covers specific areas of card issuance and liability for lost or stolen cards. Unless you apply for a credit card federal law prevents an issuer from giving you a card. Cards can only be issued if you apply for a new card or if you renew your old credit card.
- If My Card Is Stolen Will I Have To Pay For Purchases Made By The Thief?
Under the Truth in Lending Act (TLA) cardholders can only be liable to a card issuer for a maximum of $50 if your card is stolen and used by someone else. Once you notify the issuer, you are no longer liable for any further transactions completed with your stolen card. The $50 charge is only incurred if the stolen card is used illegally before you notify your credit card company. The card issuer has the burden of proof of showing any purchases were authorized by you if you claim your card was stolen.
- What Is A Collection Agency?
A collection agency collects debts owed by consumers. As a consumer you are responsible for paying your bills on time. This is a serious responsibility. It is important to understand that loans and bills must be repaid. Legal protections such as the Fair Debt Collection Practices Act (FDCPA) exist to govern the actions of collection agencies.
- What Is The Fair Debt Collection Practices Act?
The FDCPA defines tactics that are illegal for collection agencies to use. This federal law defines how collection agencies will inform you that you will be sued if a debt is not repaid. Collection agencies are not allowed to use methods that harass or deceive you. This act applies to debts owed for personal, family or household expenses and includes car loans, mortgages, credit card accounts and medical bills. http://www.ftc.gov/os/statutes/fdcpa/commentary.htm = Fair Debt Collection Practices Act (FDCPA)
- What Qualifies As Harassment By A Collection Agency?
Debt collectors cannot call you before 8 a.m. nor after 9 p.m., nor at your place of work. Debt collectors cannot use profanity or threatening language. Debt collectors cannot publish your name as a deadbeat in the newspaper. Debt collectors cannot contact others (employers, teachers, family) to pressure you into paying your debt. However, third parties can be contacted in order to find out your address or phone number.
For more information, try one of these websites:
http://www.consumeraction.gov/ = Federal Citizen Information Center (FCIC) consumer action website;
http://www.pueblo.gsa.gov/ = FCIC homepage;
http://www.credittalk.com/ = sponsored by Mastercard.
- How Do I Stop A Debt Collector From Contacting Me?
Write a letter to the collection agency asking the debt collector to stop contacting you. The agency may not contact you again once the letter is received except to confirm that no further contact will occur or to notify you that you may still be sued.
- What Can I Do When I Feel Harassed?
If you think the collection agency is harassing you or using threatening methods and making false statements, get legal advice or file a complaint. Complaints can be filed with the Nebraska Attorney General´s Office by calling 402-471-2682 or toll-free, 1-800-727-6432. You can also visit the attorney general´s website at http://www.ago.state.ne.us. Complaints can also be filed with the Federal Trade Commission at its website, www.ftc.gov or toll-free, 1-877-FTC-HELP. A collection agency that uses illegal collection methods can be sued in state or federal court. If you win you may recover money damages, court costs and attorney fees.
- What If I Cannot Pay My Bills?
Contact the creditor. Always take this step before you miss any payments. Try to arrange a payment plan with the creditor for smaller amounts, at least on a temporary basis. Many creditors prefer accepting smaller payments, rather than turn the account over to collection, especially if you explain the problem and make arrangements before the account becomes delinquent.
- How Does A Creditor Collect Money From Me Without Using A Collection Agency?
A creditor can repossess property on which the creditor has a lien or security interest. Otherwise, a creditor can make a bad credit report to a credit bureau regarding an unpaid debt, which may cause you problems obtaining a loan. In addition, the creditor may sue you in court.
- How Can I Defend Myself?
If a creditor attempts to repossess property, contact a lawyer immediately. If a creditor makes a bad credit report and you dispute the debt you can defend yourself by initially writing a letter to the credit bureau explaining your side of the story.
- What If The Creditor Sues Me?
If you are served papers or receive notice of a lawsuit by certified mail, contact a lawyer immediately. You will need to have a lawyer draft a response to the lawsuit within thirty days of you being served. If you ignore the lawsuit it will not go away. The court will award a judgment against you without considering your defenses. Once the creditor has this judgment from the court it might be possible for the creditor to garnish your bank account or attach your wages or nonexempt property.
- Can The Creditor Repossess My Car Or Laptop?
If you borrow money to purchase a product such as a car, a bank or loan company may take a lien or security interest on the product. If you fail to make one or more installment payments the bank or loan company may be able to repossess that product. Article 9 of the Uniform Commercial Code sets forth laws governing repossession and the sale of repossessed property. There are limits on what a creditor can do to repossess a product from you. For example, a creditor may not break into your garage to reclaim your car. If the repossessed property is sold at a private or public auction to satisfy your debt to the bank, you must receive proper notice of the sale and the sale must be commercially reasonable. If the proceeds from the sale of the product are not enough to satisfy the debt the bank might be able to sue you on the remaining debt. If you run into financial difficulties and anticipate a problem in making payments get legal advice.
- Where Can I Get Help Managing My Credit?
If you feel like you are sinking under a mountain of debts credit counseling is available. The Consumer Credit Counseling Service of Nebraska (CCCS Nebraska) has a branch in Lincoln at 1001 South 70th Street, Suite 200, and can be reached by telephone at 402-484-7200 or toll-free at 1-877-494-2227. The service´s website is "http://www.cccsn.org/. Counselors assist people in sorting out debts and working out payments with creditors. Developing a budget with a realistic plan to pay debts could help you avoid bankruptcy.
- How Do I Know When To File For Bankruptcy?
Filing for bankruptcy should always be your last resort. The federal government recently enacted the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). Under this act, you are required to undergo credit counseling from a government-approved organization within 6 months before you file for bankruptcy. The counseling can take place in person, online, or over the phone and lasts about 90 minutes. It may cost around $50, but the fee can be waived in certain circumstances. It is essential to seek counseling with an approved organization. A listing of approved organizations for Nebraska can be viewed at http://www.usdoj.gov/ust/eo/bapcpa/ccde/cc_approved.htm#NE. Note: CCCS Nebraska is a government approved counseling agency.
When bankruptcy is your only option consult an attorney to assist you in the process. There are three types of bankruptcy, Chapter 13, Chapter 7, and Chapter 11.
Chapter 13 Bankruptcy allows you to repay a portion of your debt through a monthly payment plan, which is monitored by a Trustee.
Chapter 11 Bankruptcy is similar to Chapter 13 because it requires you to repay a portion of your debt. This is mainly used by businesses and involves larger amounts of debt than Chapter 13.
Chapter 7 Bankruptcy discharges debts without payment. Some debt cannot be discharged such as taxes, child support and alimony. Student loans cannot be discharged unless extreme hardship is shown, such as disabling illness and five years has elapsed since the loan became due. Under BAPCPA Chapter 7 filings can only be made once every 8 years. Eligibility for Chapter 7 bankruptcy is determined by a means test. An online self-assessment tool is located here: www.legalconsumer.com
Though Student Legal Services attorneys do not handle bankruptcy proceedings, registered students may come into the office to discuss their situation and find resources that may be helpful.
Legal Aid of Nebraska also has information on filing for bankruptcy at this link: www.legalaidofnebraska.com.
- Am I Allowed To Keep Any Property?
Certain property is exempt and cannot be taken from you. The homestead exception may allow you, if you are the head of the household, $12,500 of equity from your house. You also may claim a personal property allowance of $2,500. These exemptions do not protect personal property that has a lien or security interest on the property. You are also allowed to keep $1,500 in personal possessions such as necessary clothing, kitchen utensils, and furniture, $1,500 in tools and equipment and six months worth of supplies and fuel to support you and your family.
- What Are The Consequences Of Filing For Bankruptcy?
The filing remains on your credit report for 10 years, so it could be difficult to get low credit rates or rent a home. Bankruptcy filings are public records so your credibility and reputation may suffer. You may lose some of your property.
- If I Reach The Point Of Filing For Bankruptcy How Can I Ever Repair My Credit?
Before you reach the point of filing for bankruptcy you must seek credit counseling. If the credit counseling service creates a debt repayment program for you this action will most likely not be noted on your credit report. If it is reported it will still not look as serious as filing for bankruptcy. Once bankruptcy is on your report it will be more difficult and expensive to obtain credit.
Rehabilitating your credit is a slow process. You should start by making small purchases with your checking or savings account that you know you can repay. Eventually you can move onto borrowing money from a lender or a creditor.
- What Is The University Health Center?
The University of Nebraska has a University Health Center (UHC) located on campus that offers health care to students at subsidized rates including free primary care visits. You must carry 7 or more credit hours to use UHC. If you carry 6 or fewer credit hours you can still use UHC if you pay the facility fee which changes each semester. For more information on UHC go to www.unl.edu/health/
You need health insurance coverage in addition to the subsidized health services offered at UHC because most health care costs will not be covered by UHC.
- Why Do I Need Health Insurance?
A student not carrying health insurance can suffer devastating financial consequences if fate deals out a major health problem. After a health problem arises it is more difficult to get insurance coverage because the insurance companies may classify your health problem as a "pre-existing condition" and exclude it from coverage.
- How Can I Get Health Insurance?
Find Out If You Are Insured Through Your Parents Policy. About 80% of UNL students are insured through their parents´ health insurance policy. Under the new Health Care Reform law, young adults can stay on their parents´ health insurance until they are 26 years old. For more information on how the new health care reform law may affect you, go to: www.healthcare.gov.
Student Health Insurance. If you can´t get coverage through your parents´ policy, a "Healthy Option" student health insurance plan is offered through the University Health Center by Aetna Student Health. The annual premium varies from year to year, with the opportunity to add a spouse and children for additional costs. To find out more about UNL student health insurance, go to http://health.unl.edu/healthyoption, www.aetnastudenthealth.com, http://www.ameritasgroup.com/students/unl, or call the Student Health Insurance Coordinator at (402) 472-7435.
UNL Graduate Assistants. If you are awarded a graduate assistantship at UNL you will also be offered partially subsidized health insurance for yourself and your dependants. If you don´t want this health insurance you must complete a waiver form within 14 days of the start of each semester. If you have dependants that you want covered you must contact the UHC business office and make arrangements.
International Students. International students studying at UNL are required to carry UNL Student Health Insurance unless proof of insurance from an outside source is provided. International students are required to submit a waiver of health insurance and proof of outside insurance within 14 days of the beginning of each semester at UNL.
Keep the Health Insurance You Previously Had. The Consolidated Omnibus Budget Reconciliation Act (COBRA) allows you to temporarily continue the health insurance coverage you had with a previous employer. You may also be eligible for health insurance through COBRA if you lost your group coverage due to a death, divorce, or loss of your status as a dependant child.
If you keep your health insurance through COBRA you must pay the entire premium yourself instead of sharing it with the employer as before.
If you become eligible for health insurance through COBRA you must be given at least 60 days to decide whether you want to buy the coverage. The coverage usually only extends for 18 months if you are a former employee and for 3 years if you are a child or ex-spouse of the former employee.
Comprehensive Health Insurance Pool (CHIP). If you are having trouble obtaining or affording health insurance coverage through any of the previously mentioned methods check out CHIP, a nonprofit program created by the Nebraska Legislature for the purpose of providing health care coverage at an affordable price without restrictions. Premium charges are based on 135% of average standard health insurance rates. Premium charges for children are set at 50% of the standard rate. Find out if you are eligible for CHIP by visiting the web site at www.nechip.com or call (402) 471-2201.
IDENTITY THEFT AND SCAMS
Information for this Student Legal Services Website was created using many sources, including:
www.ftc.gov/bcp/edu/microsites/idtheft; http://www.ndbf.org/consumers/consinfo.shtml; http://www.lincoln.bbb.org/; www.fdic.gov/consumers/privacy/criminalscover/index.html; www.AnnualCreditReport.com; http://www.ftc.gov/os/statutes/fcra.htm; and http://www.scambusters.org/identitytheft/collegestudentsguide.html.
- I´ve Heard Of Identity Theft, But What Exactly Is It?
Identity Theft is when your personal identification information (social security number, drivers license, credit card number) is stolen by someone who uses your information to do just about anything. Identity thieves are known for purchasing new homes, applying for car loans, and opening up credit card accounts in the name of another person. Thieves have emptied out the savings accounts of victims before the victims have even realized a stranger is accessing his or her personal identification information. At its essence, identity theft involves someone trying to impersonate you by using your personal information without your authorization.
- Who Are Victims Of Identity Theft?
Anyone with some form of valid and unique identification is an automatic target for identity theft. Elderly citizens are often a target for identity theft because thieves perceive older citizens as more vulnerable and willing to share private information. If you are concerned about your grandparents or another elderly friend becoming the victim of identity theft, the Better Business Bureau suggests you talk to this person about the dangers of identity theft (http://nebraska.bbb.org ). It´s important to remember that victims of identity theft are not just older citizens because identity theft can happen to anyone at anytime.
- I´m In College, Saddled With Debt, And Have No Income – I Can´t Be A Target, Can I?
As long as you have not reached your maximum credit limit, your credit card can be used for additional purchases. Also, identity theft can take forms other than using your personal information to make unauthorized purchases. For example, someone stopped by the police for violating the law might give your name and address as their own. When you do not appear in court, the judge will issue a bench warrant for your arrest for failure to appear in court.
- Wouldn´t It Be Easier To Just Grab Someone´s Wallet?
Stealing an identity over the computer is easier than stealing someone´s wallet. However, identity theft can also occur as a result of your wallet being stolen. Thieves might steal a wallet for the sole purpose of getting access to your personal information, like your credit cards and driver´s license. A criminal only needs some of your personal identification information in order to impersonate you.
- What Does Personal Identification Information Include?
Personal identification information includes a person´s important documents, such as birth certificates, driver´s licenses, and social security cards. It also includes documents like visas, firearms licenses, passports, government and employment I.D. cards, or basically any other document that can officially be issued to a person. The personal information on these identifying documents can include your name, birthday, address, driver´s license number, social security number, work or school identification numbers, debit and credit card numbers.
- How Will I Know If And When My Identity Has Been Stolen?
Unfortunately, there are no clear and obvious signs that you have been the victim of identity theft. Most people do not find out they are victims of identity theft until after serious damage has already been done. The best thing you can do is to thoroughly check your monthly bank and credit statements, looking carefully for any unusual purchases or money transfers.
If you have concerns, it is always a good idea to check your credit report. A credit report is a summary of your personal financial information. It tracks the bank and credit card accounts you open, and records if you default on a loan or get your house repossessed. Credit reporting companies keep track of this information and provide individuals with "scores." Companies can check out a person´s score when deciding whether or not to grant someone a loan or to sell someone an item requiring monthly payments. Sometimes employers even look at credit reports to ensure newly-hired employees are credible and reliable; therefore, it is very important to maintain a good credit score.
Other signs indicating your identity may have been stolen:
- You receive credit cards in the mail that you didn´t apply for.
- You don´t receive regularly anticipated bills in the mail.
- You are denied credit or are offered bad credit terms despite the solid credit report that you thought you had.
- Debt collectors and businesses call you for repayment of a product or good that you never bought.
- How Do I Check My Credit Report?
The Fair and Accurate Credit Transactions Act allows consumers the ability to access one free credit report annually. To obtain a free credit report, go to www.AnnualCreditReport.com. After obtaining your annual free report, the cost of additional reports is approximately $10 each.
The Better Business Bureau advises consumers to be suspicious of offers of "free credit report checks." The Bureau recommends never utilizing a free credit check offered online, by email, or over the phone by a telemarketer. Your best bet for accessing your credit report is to use the site that is the product of the three nationwide consumer credit reporting agencies (which is cited above). More information from the Better Business Bureau on credit reports is available at: http://nebraska.bbb.org .
- What Can I Do To Protect Myself From Identity Theft?
- Don´t carry your social security card around with you and don´t place your social security number on your checks.
- Never use obvious passwords (like your birthday or your maiden name) when creating a password to access private accounts.
- Be extremely cautious about who you decide to give your personal information to and when you decide to give it.
- Copy both sides of every important piece of information in your wallet, so if your wallet is stolen you can quickly compile all your account numbers and know which companies to call to cancel your services.
- An easy way for thieves to get your personal information is just by simply rummaging through your garbage. Invest in a shredder and shred all documents with personal information listed on it. If you don´t know whether or not something is personal, take the time to shred it – a few minutes of shredding private documentation could save you months and possibly years of the hassle of dealing with identity theft.
- How Can I Prevent Id Theft?
On the Internet?
- Never give out personal information in response to an unknown email or advertisement requesting personal information.
- When sending personal information to a legitimate organization or person, check to see if the site is secure.
- Routinely update your anti-virus software to prevent hacker´s from breaking into your personal files.
- Exercise caution when downloading files or opening attachments as some are infected with viruses.
With ATM Machines?
- When punching in your PIN numbers make sure no one is watching. Cover the numbers you type in with your other hand.
- Make transactions in the daylight in a safe neighborhood.
- Only use ATM machines that are located within or affiliated with a financial institution to ensure the machine is legitimate. This way there will be an institution you can contact immediately if your card gets stuck in the machine.
- Keep your pin number in a safe place and don´t store it with your ATM card.
Over the Telephone?
- Never give out your Social Security number, credit card numbers, or bank account numbers to someone who calls you asking for them. If it is someone claiming to be from your bank or credit card company, tell them that you will call them back and use a number you already have on file – not a phone number the caller gives you.
- Ask for information in writing from organizations claiming to seek money for a charity.
- If I Suspect My Identity Has Been Stolen, Who Do I Contact?
The first thing you should do is place an alert on your credit report. Three different nationwide consumer reporting companies allow consumers to place alerts on reports so companies trying to access your report (to give a loan or line of credit to the thief using your information) will immediately realize you are the victim of identity theft by looking at your report. These companies include:
By contacting one of the above companies, you are effectively alerting all 3 companies because each company is obligated to alert the other companies.
- What Other Steps Should I Take If My Identity Has Been Stolen?
Cancel your credit cards. Have a list of the credit card companies´ toll free numbers somewhere convenient so you know where to call in an emergency.
Call the local police. The Nebraska Attorney General´s Office recommends that you inform local police as well as federal law enforcement through the Federal Trade Commission. (http://www.ago.state.ne.us/consumer/idtheftinfo.htm). You may need to file a police report to back up the validity of your identity theft claim to your credit card and banking companies.
The Attorney General also recommends that you contact the Nebraska Public Service Commission at (402) 471-3101 to inform the Commission to watch for extra services to be added in your name with utility companies (such as with cable TV, telephone, gas, and water companies), and to cancel any unauthorized services.
If your social security number is being used illegally, then it should be reported to the Social Security Administration. A new number will be issued to you if you are the victim of identity theft, and the Social Security Fraud Hotline can be reached at 1 (800) 269-0271.
You can also put a security freeze on your credit report. A security freeze means that your file cannot be shared with potential creditors, which can help prevent identity theft. Most businesses will not open credit accounts without first checking a consumer´s credit history. If your credit files are frozen, even someone who has your name and Social Security number probably would not be able to obtain credit in your name.
If you need further legal advice, contact UNL Student Legal Services at (402) 472-3350.
- How Do I File A Complaint With The Police?
Go to the nearest police station. Around UNL campus, the closest police station is the University Police. The University Police´s telephone number is (402) 472-3555 (for non-emergencies), and its address is 300 N. 17th Street, Lincoln, NE 68588. If you do not live close to campus or would rather file your complaint at a different police station, then local law enforcement can be reached by either calling the Lincoln Police Department (402) 441-7204 or the Nebraska State Patrol (402) 471-4545.
- I Am In The Military. How Can I Protect Myself If I Am Deployed?
Deployed members of the military can add an "active duty alert" onto credit reports, which lasts one year. If you are deployed for over a year then it is necessary to put another alert onto your report.
- What Is The Government Doing To Protect Consumers Against Id Theft?
The State of Nebraska has enacted the Personal Identity Defense Act to define this crime. The act sets forth varying punishments for criminals, including that restitution be made to the victim (which is essentially re-paying the victim for the stolen goods).
In 2007 the Nebraska Legislature passed a law that allows consumers to freeze their credit reports. Any consumer in Nebraska may place a security freeze on his or her credit report by requesting it in writing by certified mail to the credit reporting agency. A security freeze shall prohibit, with certain specific exceptions, the credit reporting agency from releasing the consumer´s credit report or score relating to the extension of credit without the express authorization of the consumer. If your credit files are frozen, even someone who has your name and Social Security number probably would not be able to obtain credit in your name.
The Attorney General has a Consumer Protection Division to handle consumer scams faced by Nebraska citizens. The Attorney General´s office can be accessed at http://www.ago.state.ne.us/consumer/idtheftinfo.htm and by telephone at (402) 471-2682 or toll free at 1 (800) 727-6432.
Under the Fair Credit Billing Act consumers are only required to pay up to $50 for fraudulent charges on a credit card account.
- How Can I Tell If An Email Or Website Is A Scam/Fraud?
Students should be aware of the myriad of Internet scams that exist as well as the techniques used to protect themselves against any new scams. The most prevalent scams include Internet auction fraud (non-payment or non-delivery), phishing (phony website to retrieve personal information), Nigerian letter scams (won the lottery or came into inheritance), and unsolicited bulk email (pharmaceuticals, designer clothes, etc.). Here are some details on a few of them:
Phishing Scam: "phishers" send bogus emails or pop-up ads pretending to be a legitimate business such as your bank, Internet service provider, or governmental organization. They ask you to "confirm" your personal account information by going to a website that looks like a company´s real website.
The Nebraska Crime Commission warns citizens against the Jury Duty Scam. A scammer calls acting as a court employee and tells you that you failed to report for jury duty. When you say that you never received the notice of an obligation to be on a jury, the scammer will ask you to "verify" your identity by giving your social security number or other private information.
The Nebraska Department of Banking and Finance cautions citizens about emails advertising "payday cash lenders" who claim to offer overnight cash advances for your paycheck in order to get you to reveal your personal information.
Nigerian Scam Letters: These letters claim to offer you an opportunity to enter into a "confidential business arrangement" that will result in millions of dollars going into your bank account – provided you reveal your personal information to the company.
To protect yourself, do not rely on links within email messages. Be wary if an email requests personal information such as your social security number or credit card number. Always make sure the website and/or email actually belongs to the company it says it does. If something seems suspicious to you, do not provide any payment or information until you are certain it is a trustworthy source. Please use the following linked resources to educate yourself on Internet scams:
- With All These Scams, How Do You Know What Businesses To Trust?
Trust your gut. If you feel like someone is asking too much personal information over the Internet or by telephone, then don´t give them any information about yourself. A legitimate company or governmental service is fully aware of the risks of Identity Theft and will understand your concerns and should provide some verification or means of assurance. If the information seeker continues to be persistent, discontinue the call or don´t answer the email.
Call the Lincoln Better Business Bureau to check on the company at (402) 436-2345. The local BBB serves only Nebraska, South Dakota, and southwest Iowa. For companies located elsewhere in the nation, contact the National Better Business Bureau at http://www.bbb.org/.
TRAVEL FRAUD AND SCAMS - Spring Break or Otherwise
- How Does A Typical Scam Work?
Most scams operate by slick sales tactics promising vacations in paradise in hopes of taking advantage of an unsuspecting consumer. Some common scams are:
Total Fraud: A company from out-of-state or from a different country runs a scam where you lose all your money because the proposed trip was completely made-up. Once you realize you have been played you can no longer trace the company for a refund because whatever contact information the company gave was bogus.
Hidden Costs: A trip package advertises itself as all-inclusive. In reality the trip is anything but all-inclusive, and you get hit with extra, unexpected charges. You may be required to bring a second traveler who is charged a high price for the trip. Perhaps your airplane ticket is free, but your hotel ends up being twice the price. Another scam is to charge membership and service fees, hotel taxes, or port charges, which could be up to hundreds of dollars and may not be billed onto your card until after the trip.
Poor quality accommodations: You buy a package deal based on promises of a swanky hotel with ocean-front views and then arrive to find your lodging is dirty or in a dangerous area.
Failure to disclose refund policies: The scammer assumes you will not read the trip agreement, so the scammer includes no refund policy or one that is vague and ambiguous.
Timeshare Offers: A company may offer you a free weekend getaway or a trip to a resort, as long as you agree to listen to a sales pitch about the resort´s timeshare opportunities. The proposal may appear to be a good way to get a free trip. However, once you arrive at your destination you encounter highly aggressive sales pitches pressuring you into purchasing a timeshare you never really wanted.
Advertisement Misrepresentations: Ads on the Internet or faxes sent to an office where you are working may try to copy the look or style of a well-known travel company in order to make you falsely believe the advertised company is legitimate.
- How Do I Avoid Being Scammed?
The best advice is that if an offer sounds too good to be true, then it probably is. Look for these red flags:
Offer at a super low price: Often a low price is offered to college students and then additional charges are piled on to your bill. Companies may add international, credit card, and late booking fees. A company may even require you to pay an extra charge in case the price of gas increases.
Be wary of offers that require you to act fast: Scammers may push you to act quickly before your opportunity flies by or someone else takes advantage of the offer. When a company excessively stresses the limited time offer it may mean the company is trying to get a financial commitment from you before you have time to shop around and make sure the company is legit.
Read the fine print: You should understand a company´s cancellation policy before making a commitment. A company might require that consumer disputes are only handled by arbitration in a state other than Nebraska. Although you do not anticipate your trip ending in a legal dispute, you never know what could happen. Once you take the trip it will be too late to argue that the cancellation policy is unfair.
Know your rights: You should be able to cancel a charter package without penalty if a major change was made by the operator. According to the U.S. Department of Transportation major changes include changing a departure or return date, the destination, or the hotel to one not named in the contract. Raising a package price more than 10 percent may also qualify as grounds for cancellation. Go to the Federal Trade Commission´s website for more information about avoiding scams at http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt029.shtm.
- Can I Be Scammed By A Telemarketer?
Absolutely. Here is how a telemarketer might try to entice you:
Bait and Switch: A telemarketer tells you that you won a trip and then reels you in with a plush travel offer only to later talk you into upgrading your hotel for more money. Then you go on your trip and discover the room is dirty, crowded, and located in a bad neighborhood.
Fly by Night Operations: A telemarketer may call you pretending to be a travel agency and offer you a great travel deal. You make a deposit for the trip, but never hear from the company again.
Be careful when entering drawings: Drawings for free vacations are often placed in shopping malls and grocery stores. To enter the drawing you must give personal information. These are ways for telemarketers and Internet companies to collect your personal information in order to contact you in the future with potentially bogus trip offers.
- Is It Smart For My Friends And I To Book Our Airline Tickets With A Charter Company?
Charter companies are similar to typical airlines, but do your research because charters have some different rules that may end up ruining your trip. Below are examples:
A charter flight can be cancelled by the company for any reason for up to ten days before the trip.
A charter company might be able to raise the prices up to 10% after you sign up.
The charter company may overbook Spring Breakers to make more money and include a contract provision allowing it to delay return flights for up to three days without letting you know ahead of time. You may be stuck in your vacation destination waiting for a flight.
Make sure the charter is registered: Write a letter to the U.S. Department of Transportation, Office of Consumer Affairs in Washington, D.C. Include the operator´s name and ask to check the charter company´s registration. You can also call the Department of Transportation Public Charter Licensing Division (202-366-2396) to confirm the charter company is licensed. For more information on charter flights, go to http://airconsumer.ost.dot.gov/publications/charters.htm.
The Federal Trade Commission´s website also discusses charter flights at www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt029.shtm.
- Should I Plan My Own Vacation Or Should I Book With A Travel Agent?
Advantages of using a local travel agent: If something goes wrong with your travel plans it is easier to hold a local travel agent accountable, including filing a lawsuit if necessary. An out-of-state travel company can disappear without a trace after they have your money. Ask your friends and family if they know a good travel agent in the area.
Advantages of planning your own vacation: You can find websites that sell plane tickets in packaged deals including hotels and car rental. Before purchasing any items be sure you know the website´s rules about changing flight times or dates, cancellation policies and other costs.
Be careful when buying a package deal from an unknown website. Call the resort or hotel at your destination and check to make sure those gorgeous Internet photos are current and display the actual location where you are staying. Another useful idea is to call your destination´s local Chamber of Commerce.
- What Is The Best Way To Pay For A Trip?
Use a credit card whenever possible. The Fair Credit Billing Act gives you 60 days from the date you receive your bill to contest a charge. Read your credit card agreement -- some credit cards offer even more time to contest a charge. If you realize you are the victim of a scam and act quickly you can dispute the charge and avoid losing your money.
Avoid paying in cash. If you must pay in cash demand a receipt for proof of payment. Paying with a credit card might mean paying interest charges, but it offers you the most protection if something goes wrong – you can contest the charges.
- Where Should I Report A Travel Scam?
Local Resources: Contact your local law enforcement first. In Lincoln contact the Lincoln Police Department at 441-6000 and UNLPD at 472-3555. File a complaint with the Nebraska Attorney General´s Consumer Protection Division -- (402) 471-2682 or toll-free at 1-800-727-6432 or online at http://www.ago.state.ne.us/. Call the local Better Business Bureau at (402) 436-2345 or toll-free at 800-649-6814 or file a complaint online at http://www.lincoln.bbb.org/.
Federal Resources: You can also report a scam to The Federal Trade Commission online at www.ftc.gov, which accepts complaints, tracks travel fraud and shares that information with consumers. You can also search the web to see if a specific scam is being reported by other consumers.
- Is Downloading Free Music Illegal?
If the music is copyrighted, it is illegal to download it without permission. Most songs that appear on download or file–sharing websites are copyrighted. There is music available online for downloading and distribution that is not copyrighted. For example, lesser known bands often freely distribute their own music online for the sake of exposure. But beware that downloading or file-sharing a copyrighted song could expose you to civil penalties.
- What Is Copyright Infringement?
Copyright infringement includes (1) downloading copyrighted files, (2) distributing such files to the public, and/or making such files available for distribution to others. If you download songs on a file–sharing website, you will probably automatically become a file–sharer yourself. If the song you have downloaded is copyrighted, someone else could download it from your computer. Both downloading and sharing the copyrighted file are copyright infringements.
- What Will UNL Do If I Am Caught Downloading Copyrighted Files?
UNL has developed a policy to deal with persons who use the university network to illegally download copyright protected material. For more information see the UNL Digital Copyright Guidelines at http://is.unl.edu/copyright.shtml.
- How Do I Get Married In Nebraska?
Getting married may be a romantic endeavor, but it is also considered a civil contract requiring consent from both spouses. Therefore, to be married in Nebraska you need a marriage license.
- Where Do I Get A License?
Go to the County Clerk´s office of the county in which you reside. You need to have a solemnization ceremony. There must be an official authorized by law presiding over the ceremony and witnesses to sign the marital license. The ceremony can be a religious wedding or a civil service with a justice of the peace.
- What Requirements Are There For Getting Married In Nebraska?
You must be 17 years old. If you were previously married, you must wait six months before re-marrying.
- Should My Fiance and I Write A Pre-nuptial Agreement?
What Is It? A Pre-nuptial Agreement is written before marriage. It is a way for a couple to contract on just about anything except custody of future children.
When Is It Useful? Choosing to write a pre-nuptial agreement is a personal decision that may or may not work for your relationship. It can be useful if it explains how property should be divided when a couple divorces.
What Does It Require? To be honored in Nebraska a Pre-Nuptial Agreement must be written, agreed to by both spouses voluntarily and cannot be unconscionable (i.e. one spouse lied about the amount of assets in his/her possession in order to not lose as much in a divorce).
What Is An Ante-Nuptial Agreement? These agreements are less common and are similar to Pre-Nuptial Agreements, but are entered into after a couple is married.
- What Is Common Law Marriage?
Common law marriage is when two people live together without obtaining a license or having a wedding and the legal system recognizes the relationship as a marriage. Common law marriage is generally not recognized in Nebraska. Some states recognize this as a form of marriage, but have requirements such as a setting a specific number of years the couple must live together. Common Law Marriages are only recognized in Nebraska when a couple previously lived in a state that recognized the relationship as valid. In these cases proceedings similar to a divorce are conducted to divide the property. Otherwise, you are on your own.
- What Is Annulment?
An annulment is another way to end a marriage. It differs from a divorce because an annulment means the marriage was never valid. There are limited reasons for getting an annulment in Nebraska. An annulment may be granted if the marriage was against the law (i.e. if siblings were married); if one of the spouses was impotent, mentally ill, or mentally handicapped at the time of the marriage; if a spouse had another living spouse at the time of the marriage; or if the marriage was consented to under force or fraud.
- Are There Requirements For Getting A Divorce In Nebraska?
Yes. You or your spouse must have lived in Nebraska for at least a year immediately prior to filing for the divorce. The only exception is if you were married in Nebraska and you or your spouse lived in Nebraska for the entire length of the marriage, even if your marriage was for less than a year.
- Does My Spouse Have To Agree To The Divorce?
No. Nebraska is a No-Fault Divorce state, so neither spouse has to prove the other was at fault to obtain the divorce. One spouse needs to show the marriage is "irretrievably broken." Before 1972 one spouse had to show the other was at fault based on a behavior such as adultery or abuse.
For more information on No-Fault Divorce visit The Nebraska State Bar Association´s website at: http://www.nebar.com/associations/8143/files/VLP-No-FaultDivorceBrochure.pdf.
- How Do I Find An Attorney?
Finding the right attorney to represent you is important. Your attorney should always have your best interests in mind. You need to be able to communicate honestly and trust your attorney. Here are some suggestions for how to find an attorney:
- Ask your friends and family for recommendations.
- Contact the Nebraska State Bar Association at 475-7091.
- Schedule an appointment with Student Legal Services. Student Legal Services represents UNL students in uncontested divorces that do not involve children nor real estate. For other divorces SLS may be able to recommend attorneys for you.
Make sure the attorney has experience or specializes in domestic relations.
For more information on simple divorces visit the Nebraska Judicial Branch´s website at: http://www.supremecourt.ne.gov/5942/office-dispute-resolution.
- Do Both My Spouse And I Need Separate Attorneys For A Divorce?
Yes. Your spouse and you should not share the same divorce attorney. It would be unethical for an attorney to represent two spouses.
- What Does The Attorney Do?
An attorney guides you through the process and represents your interests in court by doing the following:
- Meeting with you to gather information about the case and advise you on options.
- Notifying your spouse about the pending divorce if you are the plaintiff, or answering the complaint if you are the defendant.
- Contacting your spouses´ lawyer and setting up necessary meetings, including negotiations, depositions and mediation.
- Filing motions for you in court and appearing on your behalf in front of the judge who is hearing your case.
- What Will The Attorney Ask Me?
You will be asked for personal information about you, your job, your married life and what you want out of the divorce. Your attorney will need information about your money, property, tax returns, insurance policies and bank statements. Documentation showing your debts, mortgages or credit card bills is also useful. Your attorney will also want information about any dependents you support and what kind of custody arrangement you want.
- How Will The Attorney Notify My Spouse?
There are three forms of notification: "service," "voluntary appearance" or publication. Service of notice can be done through certified mail, delivery by a sheriff or through publication in a newspaper. Voluntary Appearance is authorization signed by the defendant allowing the court to proceed with the case. If you do not know where your spouse is, the court may allow you to notify your spouse by publication. This means that you may, pursuant to a court order, publish a notice in the newspaper stating that you are bringing a divorce action against your spouse.
- What Is The Plaintiff And Defendant?
The "plaintiff" is the person filing the divorce and the spouse is called the "defendant".
- What Happens After The Complaint Is Filed And Served?
You, your spouse and your attorneys will meet together and discuss the division of property, alimony, child support and custody. Issues you agree on are written down into a Settlement Agreement and incorporated into the Divorce Decree. The Decree states that the marriage is over and explains all arrangements for the property and children.
- What If My Spouse And I Disagree On Issues of Property, Custody Or Support?
You can try to resolve these issues by having your attorney negotiate with your spouse´s attorney. This can get very expensive very fast.
Some people try to resolve disputed issues through mediation. You and your spouse sit down with mediators and try to work out an agreement on as many issues as you can. If mediation fails you will have to negotiate through your attorney or go to trial on the disputed issues and let the judge decide for you.
In Lincoln, contact The Mediation Center at (402) 441-5740 or go to their web site at: www.themediatiocener.org.
For more information on how mediation can help separating parents develop a care-plan for the children, see: http://www.supremecourt.ne.gov/mediation/parenting-divorce.shtml .
- How Much Does A Divorce Cost?
Attorney fees can be expensive so ask the attorney lots of questions about the costs before you agree to hire her. There are filing fees to file a complaint for divorce. It also costs money to have your spouse served a divorce complaint. If you cannot afford the filing fee a Judge may order the fee be paid by the county (in forma pauperis). To do this, you will need to sign an affidavit with your income and expenses so the Judge can determine whether or not you can actually afford the fees.
- Will There Be A Trial?
If you cannot resolve the disputed issues in any other way there will be a trial. Each side is allowed to call witnesses to testify. You may also testify. You will be sworn in and questioned on the stand. Your attorney will prepare you beforehand by going over her questions and the potential questions the other attorney may ask.
If you and your spouse have reached agreement on all of the issues before the trial, you will only have a brief hearing for the judge to approve the Settlement Agreement and grant the Divorce.
- What If I Disagree With The Judge´s Decision?
The Decree becomes final one month after the hearing. By showing "good cause," you may be able to get the decree vacated or modified before it is finalized. Otherwise, you can appeal the decision to a higher court. An appeal can be expensive and may take a long time, so talk to your attorney about whether making an appeal is a good option for you.
- How Do I Get My Name Changed?
As part of the divorce proceeding you may request a name change to your original one if you changed your last name to be the same as your spouse´s name when you married.
- How Is Our Property Divided?
Divorces in Nebraska follow the "Common Law." All property bought or received after you were married is divided equally (i.e. 50/50) between divorcing spouses. Everything you and your spouse bought together such as homes, cars, furniture and stocks is included – even gifts that were given to both of you. Since many items (like cars) cannot be divided in half, usually an item of equal value is given to other spouse in its place.
Any gifts, inheritance or property owned before the marriage is not included in this 50/50 split.
Both child support and alimony can be modified after the divorce is finalized. However, property divisions cannot be changed.
No matter which spouse is ordered to pay a debt or a bill both spouses remain obligated to the creditor to pay any mutual debt. Creditors can come after both spouses when a bill goes unpaid.
- Can My Spouse And I Start Dividing Property Before The Trial?
Yes, unless one party seeks a temporary order from the judge prior to the trial. The judge may order that no property be sold until the trial is held.
- What Other Temporary Orders Are Possible?
Other orders may prohibit one spouse from going into the other spouse´s home or from contacting the other spouse or the children. There will also be temporary orders of custody, visitation and child support.
- How Does A Judge Decide Which Parent Gets Custody Of The Children?
The judge considers what is in the "best interests" of the children. Best interests involves many different aspects of parenting, but basically the Judge is looking to see which parent is better suited to provide daily care for the child. Daily care involves the basic necessities like food and shelter, but also care for the child´s emotional and mental needs.
Issues of a parent´s "fitness" could arise in contested custody disputes. If fitness becomes an issue your behaviors and lifestyle will be used as evidence at trial.
- Can My Child Choose Which Parent To Live With?
A judge will consider the age and maturity of the child when deciding whether to use the child´s parental preference. Otherwise the judge makes the decision based upon what both parents say and takes into consideration the recommendation of the Guardian Ad Litem (GAL) or other expert opinions. A GAL is usually an attorney appointed by the judge to represent the best interests of the child.
- What Is Joint Custody?
Joint custody is usually awarded in cases where the parents are able to work together in a manner suiting the best interests of the children. The Judge can grant one of two forms of joint custody:
Joint Legal Custody: Both parents have the ability to make long-term decisions for the children.
Joint Physical Custody: Parents share relatively equal amount of time with the children.
- How Does Visitation Work?
A parent who is not granted custody of the children may be granted visitation rights. The Judge may order specific times you can see your children, such as every other weekend; or the Judge may order "reasonable rights" to visitation. Reasonable rights means the parents must work out a visitation schedule that best suits the child´s and the parents´ needs.
- Can My Spouses´ Grandparents Be Granted Visitation Rights?
Possibly. Nebraska does allow grandparents some ability to gain visitation rights. The law requires the grandparents seeking visitation to already have a significant and beneficial relationship with the child.
- Can I Get Child Support Immediately After The Complaint For Divorce Is Filed?
Yes, if you have custody of the children then the court may order the other spouse (the non-custodial parent) to pay temporary child support each month. This support may change after the hearing is held and a final decree is entered.
- How Is Child Support Determined?
The Nebraska Child Support Guidelines are used to set the monthly amount a parent must pay for child support. For more information on the guidelines, see the State´s website at: http://supremecourt.ne.gov/rules/pdf/Ch4Art2.pdf.
- How Long Is Child Support Required?
Until age 19, which is the age of majority in Nebraska. Or some arrangements require support until the child finishes college. A parent may also be required to maintain health or life insurance for a child.
- What Is Alimony?
Alimony is a form of spousal support and is not granted in all divorces. A spouse must request alimony in order for a Judge to consider it. Alimony amount is determined by evaluating each
spouses´ contributions to the marriage during its course. This includes economic contributions such as paychecks, but also contributions through housework and caring for the children. Alimony may expire after a certain amount of years, such as five years after the divorce is final. It may also expire once the spouse seeking alimony has "rehabilitated" himself by going back to school or finding a suitable occupation.
- What Can I Do If The Child´s Father Claims To Not Be the Father?
You may sue a man whom you believe is the father of your child. The court may order the father to pay for reasonable expenses for the pregnancy and childbirth, along with monetary support for the child. The mother´s attorney fees and court costs may also be paid by the father. If you file the suit you will have the burden of proving the father´s identity. This can be shown through any admissions the father made, or through a blood test.
If the mother receives any public assistance and names the father of the child, the issue of paternity will be turned over to the county attorney and a paternity lawsuit will be filed against the father.
- What If I Do Not Want The Child´s Father Involved In My Child´s Life?
If the father does not try to claim paternity then you may avoid the father´s involvement in your
child´s life. You also will want to avoid applying for welfare. If you apply for welfare the State will try to find the father and bring suit against him for the costs of child support.
- How Can I Get Rights To My Child If The Mother Claims I Am Not The Father?
You can sue a woman who you believe is the mother of your child. If you prove you are the father of the child you have a legal right to visit the child and may be able to gain full or joint custody.
- What Is Domestic Violence?
Domestic violence is when a family member or someone close to you abuses you in a physical, sexual, verbal or mental way. An abuser can be male or female, and abuse can happen in heterosexual or gay relationships. Some examples of abuse are: your partner tries to control your life by taking your money, keeping you from going to work and school, or constantly criticizing and putting you down; your partner punches, shoves, or chokes you – or threatens to do so; your partner forces you to have sex with him/her or refuses to use protection when you have sex.
- Where Can I Get Help If I Am The Victim Of Domestic Violence?
If you are in immediate physical danger call 911. If possible, seek help in a shelter immediately.
- Where Are Shelters In Lincoln?
Contact the following services for assistance: The Friendship Home (402) 437-9302; or the People´s City Mission (402) 475-1303.
- What If I Just Need Someone To Talk To?
Counseling or Crisis Intervention Services are available in many forms.
UNL Organizations: Counseling is available through Counseling and Psychological Services on City Campus (Monday – Friday, 8:00 – 5:00) and on East Campus by appointment; Womens´ Center Victim Advocate – Nebraska Union 340; 472-0203.
Local Organizations: Contact the Rape/Spouse Abuse Crisis Center at (402) 475-7273, or the Nebraska Domestic Violence and Sexual Assault Coalition at (402) 476-6256 or www.ndvsac.org.
National Organizations: Call the National Domestic Violence Hotline for support and guidance on what to do. The phone number is 1-800-799-SAFE (7233) or visit the website at http://www.ndvh.org.
- How Can I Get A Protection Order?
Where To Go: Forms are available at the Clerk of the District Court´s Office, which is located at 575 S. 10th in the Justice and Law Enforcement Center. The phone number is (402) 441-7328. Forms are available through the Nebraska Supreme Court self–help website for domestic abuse at http://court.nol.org/self-help/protection.html. Forms may also be available through local domestic violence programs.
What Do I Have To Do? You will need to explain why you are requesting the order, and include the dates, times, and locations of when you were abused or stalked.
How Is The Order Granted? A Judge looks at the form and decides if there is enough evidence to issue a protection order. If it is granted you will get a copy to keep and the sheriff´s department will also get a copy to take to the abuser/stalker.
Protection Order Hearing: The abuser/stalker has five days from when he/she receives the order to request a hearing on the matter. If the hearing is scheduled you should attend because the abuser/stalker will try and show why the order is unnecessary.
How Long Does The Order Last? One year, but you can file for another order after the year ends.
What Is the Cost?: There is no cost.
- How Do I Help My Friend Who Is In An Abusive Relationship?
Be Supportive. Let your friend know you are worried about the situation and why you think abuse is going on.
Be Understanding. Try not to judge your friend because it may be hard for your friend to believe he/she is a victim of abuse. It is frustrating to watch a friend go through unnecessary pain, but it must ultimately be your friend´s decision to get help and leave the relationship.
Be a Good Listener. Listen to what your friend tells you, and encourage your friend to get help through counseling.
Be Active. Stay involved with your friend´s life, so your friend does not feel so lonely and is if the abuser is the only person who cares what happens to him/her. Remain involved once your friend has the courage to leave the abuser because your friend will need continued support.
- How Do I Protect Myself From My Abuser After I Have Left The Relationship?
Change you phone number and screen your phone calls.
Change your locks and always keep your house and vehicle locked.
Create a safety plan, including a place to go if your abuser returns and a list of people to contact for help.
Try to avoid being home alone or going to places where the abuser hangs out.
- Do I Have To Report Any Suspicions I Have That Someone Is Abusing Children?
If you have reasonable cause to believe a child is being abused or neglected, you are under a duty of law to report your suspicions. (Neb. Rev. Stat. § 28-711)
Where Do I Report? Dial 911 if the child is in immediate danger. You can also call the Child Abuse Hotline at 1-800-652-1999. This phone number is available 24 hours a day.
What Happens After I Make My Report? Once you make a report, Child Protective Services makes an investigation into the charge. CPS notifies the person who is suspected of abusing or neglecting a child of the charge.
- Can I Get A Restraining Order If Someone Is Stalking Me?
Stalking is a violation of Nebraska laws § 28-311.02, § 28-311.03, and § 28-311.04. If someone thinks another person is stalking them, they may call the police. They may also file a petition to the district court for a protection order. A judge can sign the order without a hearing, but the other party may ask for a hearing within five days. If a hearing takes place, both parties are able to tell their side, and the judge will decide whether to continue the protection order or to cancel it. The Nebraska Supreme Court has put together a guide to obtaining protection orders here: http://www.supremecourt.ne.gov/self-help/pos.shtml.
- How Do I Know If A Job Is Legitimate?
A legitimate –looking job might be a cover for a fraudulent scam to access your personal information or con you out of your money. Act cautiously to avoid being a fraud victim during your next job search.
General Advice To Avoid A Job Scam:
- Never post a resume on the Internet with your home address, date of birth, or social security number.
- Do not blindly trust a job offer requiring you to transfer money in order to secure an employment position.
- If someone offers you a job after seeing your resume online, but persistently seeks more of your personal information you would be wise to call the company to verify that the person is legitimate. Look up the company´s phone number online or in the telephone book rather than calling a number given to you by the person offering the job.
- An advertisement in a newspaper or magazine may attempt to copy the image of a well-known company or government agency in order to look legitimate. You should contact the actual company or government agency to make sure the ad is really sponsored by the respective entity before calling the number given in the ad.
- Is The Advertisement For Summer Work And Traveling Too Good To Be True?
Advertisements for jobs promising large paychecks and travel may end up being door-to-door magazine sales jobs. Members of sales crews have reported having to use high-pressure sales tactics, work long hours, substandard living conditions, assaults, drug use, and withheld wages. (See New York Times Article and Houston Press Article) Before deciding to work for a magazine sales company, you should ask a lot of questions about how the business works, what the living conditions are like, and how you will be paid. Also, check with the Better Business Bureau to see if the company has had any complaints filed against them. If you choose to work for a company, make sure they provide the right sales licenses for the city and state in which you are working, or you may be subject to a criminal citation.
- What Are Some Resources For Finding A Legitimate Job?
Check out the UNL Career Services Office for your job search at http://www.unl.edu/careers/. You can also try the Nebraska Department of Labor's website at https://neworks.nebraska.gov. For general advice in planning your career see the Youth at Work website at http://youth.eeoc.gov/resource.html.
- What Do I Have To Report When A Job Application Asks About My Criminal Record?
Being truthful on a job application is always the best option. Read the instructions and the question very carefully and be honest. If the question asks if you have ever been arrested, remember that a ticket for a Minor In Possession of Alcohol or Driving Under the Influence of Alcohol or Maintaining a Disorderly House, or any other misdemeanor, even though you were never physically taken to jail, the ticket is considered an arrest. And remember that even if you did pretrial diversion for a ticket/arrest, the police department that issued the ticket will always keep a record of the ticket/arrest. If you do pretrial diversion the charge will show up on police records as dismissed, meaning you have no conviction.
- Do I Have To Include That I Was Fired From My Last Job On My Application?
If the application asks for this information it is always better to be truthful and explain the circumstances of why you were fired. Try not to fudge the truth of what happened because if the truth later comes out after you are hired, then you may end up getting fired for lying on your application. You could also list a supervisor at your former place of employment that you had a good relationship with for a more positive explanation of your employment record.
Rights as an Employee
- Can My Employer Fire Me For No Reason?
Although it may seem strange it is true. Your employer can fire you for no apparent reason because Nebraska is an "at-will" employment state. "At-will" means an employer can terminate an employee without providing any reason. However, there are exceptions. The main exception is that you cannot be fired for discriminatory purposes. Both state and federal laws prohibit workplace discrimination.
The Nebraska Fair Employment Practice Act (FEPA) http://www.neoc.ne.gov provides legal protection for employees who are members of a protected class and victims of discriminatory employment practices. You may have heard of Title VII of the Civil Rights Act of 1964 http://www.eeoc.gov/policy/vii.html, the federal government´s version of anti-discrimination legislation. Both acts include many of the same provisions.
- What Types of Discrimination Are Illegal Under Nebraska Fair Employment Practice Act FEPA?
It is illegal for an employer to discriminate against an individual because of her race, color, birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.
Employers must reasonably accommodate an employee or prospective employee´s religious belief unless this causes the employer undue hardship.
Discriminating by directly requesting sexual favors or by creating a hostile environment for persons of either gender in the workplace, or failing to treat pregnancy the same as any other temporary illness or condition is illegal.
It is discriminatory for an employer to not provide reasonable accommodations for individuals with disabilities. A disability is a physical or mental impairment that substantially limits one or more major life activities. To show a disability there must be a record of the impairment or the person must be regarded as having the impairment. The federal government enacted The Americans with Disabilities Act (ADA) http://www.eeoc.gov/policy/ada.html to specifically address issues facing disabled individuals.
It is illegal for an employer to discriminate against an individual because he is age 40 or older.
Discriminating against an individual based on his/her marital status is illegal. Marital status is a protected class in Nebraska, but is not protected in all states.
- Is Homosexuality Protected by Federal or State Legislation?
Federal and Nebraska law do not currently protect employees against discrimination based on their sexual orientation or gender identity. However, the city of Omaha and several of Nebraska’s neighboring states including Colorado, Kansas, Missouri and Iowa have some level of protection. If you work or are applying for work in any of these locations, you may have legal protection against discrimination.
- When Does Workplace Discrimination Occur?
Workplace discrimination may occur at anytime when you are seeking a job or after you have been hired. It could happen during a promotion or with a compensation policy or when you are fired. It can also occur when a workplace fails to accommodate a disabled worker or an employee´s religious practice or when an employer fails to prevent harassment on the job.
- Does The Nebraska Discrimination Law Apply To All Employers?
Not necessarily. A place of employment must be a "covered entity" for the Nebraska Fair Employment Practice Act (FEPA) to apply. Private and non-profit employers generally need to employ 15 or more persons to be "covered." State and local government subdivisions, employment agencies and labor organizations are "covered" no matter how many persons are employed.
- How Do I Make a Discrimination Complaint?
You must first file your complaint with the Nebraska Equal Employment Opportunity Commission (NEOC), an administrative branch of the state government. The NEOC is required to make a preliminary investigation into your allegations to determine if there is reasonable cause to believe discrimination may have occurred. An investigation by the NEOC must be complete before further legal action can be taken (such as a lawsuit). More information about this process is available at the NEOC´s website at http://www.neoc.ne.gov/.
The NEOC office can be reached by phone at (402) 471-2024 or toll-free at 1-800-642-6112. The office is located in Lincoln at the State Office Building, 301 Centennial Mall, on the fifth floor. It is recommended to make an appointment instead of just dropping by, to ensure an NEOC representative is available to meet with you. Offices are also located in Omaha and Scottsbluff.
If you have a claim you need to file it within 300 days of when you experienced the alleged harm. Federal law gives you 180 days.
- Is Filing With The NEOC My Only Option?
Where federal law applies, you can also file with the United States Equal Employment Opportunity Commission (EEOC). The EEOC enforces Title VII of the Civil Rights Act, which includes discrimination based on race, color, religion, sex, national origin, age, or disability. To file with the EEOC: You must contact the nearest office by mail or in person. The nearest office from Lincoln is in Kansas City. The address is Gateway Tower II, 4th & State Ave., 9th Floor, Kansas City, KS, 66101. The phone number is (913) 551-5655. See http://www.eeoc.gov/facts/howtofil.html for more information. You must file within 180 days from when the alleged discrimination occurred. The deadline may be extended to 300 days if the incident is also a violation of state or local law.
- I Think I May Have A Discrimination Claim, But I Am Worried That I Will Be Fired For Bringing It – What Can I Do?
It is illegal for an employer to fire someone for bringing a claim or speaking out about discrimination. This action is called retaliation and it is illegal. Nebraska law protects anyone who attempts to enforce anti-discrimination laws. An employer is breaking the law if you are fired, harassed, or treated differently for bringing an action. Retaliation is illegal even if a claim turns out to lack reasonable cause.
- What Is the Minimum Amount I Can Legally Be Paid?
Since 2009, the minimum wage in Nebraska has been $7.25 per hour. This is the same amount set by the federal government under the Fair Labor Standard Act (FLSA). States are entitled to set a higher minimum wage, but are prohibited from setting a lower minimum wage than the federal standard. The FLSA can be accessed at the Department of Labor´s website, which is http://www.dol.gov/whd/flsa/index.htm.
If you are under the age of 20 your employer can pay you 75% of the current minimum wage for the first 90 consecutive days of your employment, and in some special cases, this "training wage" may be extended for an additional 90 days for on–the–job training. If you reach the age of 20 before 90 days have passed, your wage must be raised to the current minimum wage. However, if in hiring you the employer displaces other workers, then you must get the current minimum wage.
For more information on the minimum wage, check out the Wage and Hour Division of the Department of Labor´s website at http://www.wagehour.dol.gov or call the toll-free number at 1-866-4USWAGE.
- Does The Minimum Wage Apply To Waiters And Waitresses?
If you receive tips as a regular part of your job then your employer is only required to pay you $2.13 an hour (plus whatever tips you earn). However, your total wages must be at least equal to the current minimum wage with your tips included, or your employer is required to make up the difference.
- What About Overtime Payments?
You must work over 40 hours a week in order to be eligible for overtime pay. The Fair Labor Standard Act sets the overtime rate of payment to be at minimum one and one-half times your regular rate of pay.
NOT GETTING PAID
- What Can I Do If I Do Not Get Paid?
You are entitled to be adequately compensated for any work you agree to do with the consent of your employer. If you do not receive your paycheck first contact your employer because it may have been a mistake. If you still are not getting paid then you are entitled to back–pay. Contact the Nebraska Workforce Development (click on Contact Us under NEED HELP? in the left–hand margin) for more information about back–pay. You may need legal assistance if your employer refuses to comply with wage requirements.
- I´m Not Getting Paid Equally As The Male Employees Where I Work, What Can I Do?
It is illegal for an employer to pay either sex more than the other for the same amount and type of work. Nebraska implemented the Equal Pay Act (EPA) in order to prevent pay discrimination on the basis of sex and the EPA mirrors the federal law. The type of work done by men and women does not have to be identical, but it must be comparable for the law to apply. All employers who are covered by the Fair Labor Standards Act are subject to the EPA, which includes basically all employers. Inform your employer about the violation. If no changes are made then you should contact the NEOC. The filing deadline for these claims in Nebraska is 4 years. However, if you want to also file a sex discrimination claim at the same time then this complaint must be filed within 300 days.
Landlord & Tenant
- How Do I Find An Apartment?
Are you living alone or with roommates? How much rent can you afford? Once these issues are decided, consider the following methods of finding an apartment.
The preferred method of finding a great apartment is by recommendations of friends. Moving into a friend´s former apartment or moving into a building where you know the people insures that you will know what you are getting. If you don´t know anyone in the building, introduce yourself to some of the tenants and find out if they like living there. Does the landlord make repairs? What do the utilities cost? How is the noise level? Is it a safe neighborhood? Are pets allowed?
Use the Internet. You can find several web sites providing searchable databases of hundreds of apartments.
Check classified ads in the Lincoln Journal Star. Go to www.journalstar.com, click on classifieds, real estate, apartments. You can limit your search by specifying the number of bedrooms you want, the amount of rent you can pay, and other factors.
Drive around neighborhoods where you want to live and look for rental yard signs. Copy down the phone number and contact the landlord regarding specifics.
Gather information on the phone. Have your list of questions ready. How much is the rent? The deposit? How many bedrooms? Laundry? Storage? Off-street parking? Which utilities does the landlord pay? Are pets allowed? What is the term of the lease: One year, 6 months, month-to-month? If the information you obtain on the phone sounds good, set up an appointment to view the apartment.
Find out how other renters rate the apartment complex you are considering by going to www.apartmentratings.com. You can find out the percentage of previous tenants who would recommend this apartment complex to a friend. You can also rate the apartment yourself—and the management—and comment on your experience with this landlord.
- What Do I Look For When Inspecting An Apartment?
You and your roommates arrive to look at the apartment you found in the classifieds. Here is a checklist of things to inspect:
- Does the neighborhood look safe? Talk to other tenants.
- Do all the appliances function properly? Turn them on to see if they work. Check everything including oven, burners, air conditioning,, dishwasher, clothes washer and dryer.
- How is the apartment heated, by gas or electricity? Where is the thermostat and who controls it?
- Is there evidence of a bug or rodent problem? Ask the Landlord about pest control.
- How are the laundry facilities?
- Are there good locks on the doors and windows?
- What about parking?
- Check out the bathroom and shower. Any signs of leaking?
- Check out the walls and carpets for damage.
- Do I Have To Pay An Application Fee?
Some landlords require a prospective tenant to fill out an application and pay a fee prior to signing a lease. The landlord usually intends to run a check on your credit history or contact references, such as your previous landlord. Do not pay an application fee unless you are quite sure you want the apartment because it may be difficult to get the money back, even if the landlord rejects you as a tenant. The application fee is viewed as the cost of holding the apartment and not renting it to anyone else while the landlord checks to see if you will be a reliable tenant.
- What Is Discrimination In Housing? What Can I Do If I Think I Am A Victim Of Discrimination?
Landlords and property managers are prohibited from discriminating on the basis of race or color, religion, sex, national origin, familial status, or disability by both the federal Fair Housing Act and by Nebraska law. Owner-occupied private homes in which no more than three sleeping rooms are rented are exempt. Unlawful housing practices generally include discrimination in the advertisement, acquisition (showing, negotiating for or transmitting offers for sale or rental), financing, or possession and enjoyment (terms, conditions, privileges) of residential property. From the date of any alleged harm, the time limit for a housing charge is one year. Federal filing deadlines may be different. Anyone who has opposed any unlawful practice or who has participated in any manner in any proceeding to enforce the statutes is protected by statutes that bar retaliation.
Though Student Legal Services attorneys do not handle discrimination proceedings, registered students may come into the office to discuss their situation and find resources that may be helpful. Some organizations that may be able to assist you are the Nebraska Equal Opportunity Commission, Lincoln Commission on Human Rights, and U.S. Department of Housing and Urban Development.
Online resources you may find useful:
- What If I Don´t Like A Clause In The Lease?
Examine the lease before you sign. If possible, ask for a copy of the lease several days before you are to sign it. Read it carefully and mark in pencil any sections you don´t understand or find objectionable. A Student Legal Services attorney will be happy to read over it with you. If a clause in a lease conflicts with any section of the Nebraska Residential Landlord and Tenant Act that clause may be unenforceable. You should ask the landlord to strike that clause. The Nebraska Residential Landlord and Tenant Act, §76-1401 to §76-1449, can be viewed online by going to http://www.legislature.ne.gov/laws/laws.php and searching for the key words you want to see.
- How Should I Notify The Landlord Of Problems?
At the outset of the tenancy the landlord or person signing the lease on behalf of the landlord must disclose to you the name and address of the person authorized to manage the apartment and to receive notices.
- Can The Landlord Make Me Agree to Mow The Lawn Or Shovel The Walks?
You may agree with the landlord that you perform some of the landlord´s duties such as mowing the lawn or remodeling if (a) the agreement is set out in writing signed by the parties, (b) you are getting some benefit in return, and (c) the landlord is not trying to evade his or her obligations. §76-1419(2)
- What If The Landlord Promises To Make Repairs Before I Move In?
If the landlord has made any verbal promises to you regarding the apartment, make sure those promises are written into the lease and initialed by both parties prior to signing the lease. For example, if the Landlord promises to paint the living room and kitchen before you move in, write the promise into the lease with a deadline for completion and have the landlord initial it. Always ask for a photocopy of any lease that you sign and put it with your business files where you can find it later.
- How Much Deposit Do I Have To Pay?
If the Landlord requests a damage or security deposit, the amount of the deposit may not exceed one month´s rent except that if pets are allowed, the landlord may require an additional pet deposit equal to one fourth of a month´s rent.
- I Just Paid A Huge Deposit. How Can I Make Sure I Get It Back?
Use An Apartment Inventory. Carefully examine the apartment before moving in using an apartment inventory to record any damages. It is your main tool in protecting your damage deposit. An inventory may consist of a list of items found in the apartment, such as carpet, walls, range, bathroom tub, etc. Each item has a blank beside it in which the landlord and you together note the condition of the particular item. The apartment inventory should be completed on move-in day. Both parties sign the inventory and keep a copy. If the landlord is unavailable on move-in day you should fill out the apartment inventory and mail the landlord a copy. When you move out, both parties may refer to the inventory to determine whether the damage was done by you or was already present when you moved in. (see sample apartment inventory)
Take Photos. It is a good idea to take photos on move-in day. The inventory and the photos will create a record of the condition of the apartment when you moved in and you can use them later if a dispute arises concerning the return of your damage deposit. The photos and inventory may even serve as evidence in court if you have to sue for your deposit. Put the inventory and photos in a file containing a signed copy of the lease.
Living in an Apartment
- I Just Arrived At My New Apartment On Move-In Day And It Is A Filthy Mess. What Can I Do?
The landlord must deliver possession of the apartment to you when the lease term begins in a clean and habitable condition. The condition of the apartment must comply with §76-1419 in that it must be in good repair, the common areas must be clean and safe, facilities and appliances must be in good and safe working order, garbage receptacles and service must be provided and running water supplied including reasonable amounts of hot water. The condition of the apartment must also meet the standards of the Lincoln Housing Code affecting health and safety. If you think you have health and safety violations call the Lincoln Housing Code Office at 441-7785 and ask that an inspector visit the apartment and examine it.
If the apartment is not ready for you to move in on the agreed date, you may either demand that the landlord do what needs to be done to meet the standards and comply with the lease or you may terminate the rental agreement upon at least five days written notice to the landlord. If you decide to terminate the lease, the landlord must return the first month´s rent and the security deposit. In some cases the landlord´s failure to have the apartment ready for you may result in a court awarding up to three months rent and attorney´s fees to you. (See §76-1418 & §76-1426). Consult an attorney. See sample letter G.
- Do I Need Renter´s Insurance?
You may want to consider purchasing renter´s insurance. It generally covers loss of property when something you own is stolen or destroyed by fire, water, theft or other casualty loss.
You can buy insurance that covers the loss of property based on the actual fair market value of the item at the time of the loss. The more expensive replacement insurance will cover the cost of actually replacing the item, which is usually more than its depreciated value. Some types of renter´s insurance cover the cost of personal injury if you or your guests are injured on the rental property or if you negligently injure someone or damage their property.
Many tenants assume that the landlord has insurance that will cover their losses and they are often disappointed. Even if the reason your property was destroyed was the fault of the landlord, you may have to get involved in a lawsuit and prove negligence to recoup your loss. If the loss is covered by your own insurance, your insurance company issues a check to cover the loss and then proceeds against the responsible party, if it is feasible.
- What About Privacy In My Apartment?
You must allow the landlord access to the apartment to inspect the premises, make repairs, or to show it to prospective tenants or buyers. Unless it is an emergency, like broken pipes flooding the apartment, the landlord must give you one day´s notice and enter only at reasonable times.
If you refuse to allow the landlord reasonable access to the apartment, the landlord may go to court and obtain an order compelling you to allow access or the landlord may terminate the rental agreement. In either case, the landlord may be awarded attorney´s fees in addition to actual damages suffered due to your refusal to allow access. (§76-1423, §76-1438)
If the landlord makes an unlawful entry or uses his right of access to harass you, you may get a court order to stop the landlord from abusing his right of access or you may terminate the rental agreement. If you have suffered damages as a result of the landlord´s abuse of the right of access, a court may award you actual damages and reasonable attorney´s fees.
- Should I Have A Roommate Agreement?
A written roommate agreement may be helpful to resolve disagreements if a roommate is not meeting his or her responsibilities or has to move out before the end of a lease term. The agreement may help roommates thoroughly discuss their needs and responsibilities prior to signing a lease together.
Just remember that the roommate agreement is not binding on the landlord. Any of the roommates who may be left behind after a roommate moves out will still be responsible for the full rent and all utilities until the end of the lease. To recover these expenses from your roommate you will need to sue the roommate in Small Claims Court.
- What Should I Do If My Roommate Moves Out Before The Lease Is Over?
First, talk to the landlord about finding a replacement roommate. Remember that your lease agreement is a contract and you can negotiate new terms, if the landlord is willing to agree. If you know someone whom you want as a replacement roommate, get the landlord to agree to allow this new person to assume the responsibilities (pay the rent, etc.) and rights (deposit, etc.) of the roommate who moved out. Put it in writing! And get the landlord to sign it.
If you do not have a replacement roommate in mind, then try negotiating with the landlord to move to a smaller (cheaper) apartment that you can afford on your own, or with your remaining roommates.
If neither of these first two options will work for you, then you may need to consider breaking the lease. See the section at this site for information about what you need to do to give proper notice and what the law obligates you to pay – rent until the end of the lease term unless the apartment can be rented again; damages to the apartment beyond normal wear and tear; and the landlord´s expenses to rent the apartment.
- What If My Roommate Stops Paying Rent Or Utilities?
If a roommate stops paying his or her share of the rent, you and the other roommates must pay for the slacker or the landlord may evict you. Talk to the roommate and make them understand that the rent is the responsibility of each roommate and that if they do not pay their fair share as agreed, you might need to sue them in Small Claims Court. If the roommate continues to refuse to pay utilities or rent you may need to ask them to move out. You can try speaking with the landlord to see if the landlord is willing to help convince the non-paying roommate to leave.
- How Should I Handle A "Problem" Roommate?
(For example, loud parties; friends visiting late at night; want them to move out; will not help with household chores.)
The old saying that an ounce of prevention is worth a pound of cure definitely holds true here. In other words, know as much about your roommates as possible before you rent an apartment with them. Talk over how and when bills will be paid, everyone´s study/class schedules, when it is appropriate to invite friends over and when it is not, private space for each roommate, cooking and kitchen responsibilities, and more. Put these items in your roommate agreement.
Sometimes, no matter what you do, you will still find a conflict with a roommate. First, try to talk with the roommate to work things out. Put suggestions in writing and have everyone sign it if it helps. If talking among yourselves does not work, try getting professionals involved. Call The Mediation Center (TMC) at 441-5740. Trained mediators can help you work things out. If you cannot resolve your differences by talking or mediating, then you might need to consider either you or the roommate moving to another place. Just remember that you have responsibilities to the landlord if you break the lease.
- What If My Landlord Will Not Make Repairs?
Whenever you communicate with your landlord, you should always put things in writing, date the letter and keep a photocopy. You can call by telephone or speak with the landlord or manager in person or by email, but always follow-up with a letter detailing the repairs that you requested be made and what the landlord or manager agreed to do. Save copies of emails as well. You can use Sample Letter A as your guide.
If the needed repairs materially affect your health and safety, you may want to give the landlord an ultimatum that he or she fix the condition within 14 days or you will terminate the rental agreement and move out within 30 days. (See Sample Letter B). Circumstances allowing this action by the tenant include repairs materially affecting the tenant´s health and safety or a material noncompliance with the rental agreement on the part of the landlord. (§76-1425) It is probably best for you to discuss the matter with an SLS attorney before writing such a letter. Call 472-3350 for an appointment.
- I Do Not Want To Move But Cannot Seem To Persuade The Landlord To Make Repairs. What Can I Do?
Try calling the Lincoln Minimum Housing Code office at 441-7785. It is unlawful for a landlord to rent an apartment or house that does not meet the standards of health and safety established in the Lincoln Minimum Housing Code (Chapter 21 - Lincoln Municipal Code). The Housing Code Office is the city agency responsible for enforcing the Code. Call the Housing Code Office and ask an investigator to come to the apartment and examine the problem. If the apartment is not in compliance with the Code, the investigator will outline specific steps the landlord must take to make the repair, and the investigator will issue a deadline for compliance.
If you have a problem related to mold or mildew or other health-related issues, contact Lancaster County Health -- Environmental Quality at 441-8000.
- What If The Need For Repairs Calls For Urgent Action?
If the landlord deliberately or negligently fails to supply hot or cold running water, heat, or other essential service, you may give written notice to the landlord of the problem, have the repair made and deduct the cost from the rent (§76-1427). It is important to remember that the remedy of having the repair work done and deducting the cost from rent is limited to situations in which the landlord has deliberately or negligently failed to supply hot or cold running water, heat, or other essential services. It is always a good idea to call the landlord first when such an emergency occurs and give the landlord a chance to have the repair made. It is best to resort to the remedy of "repair and deduct" only after you have tried unsuccessfully to contact the landlord or the landlord fails to take action. Any tenant using the repair and deduct remedy must immediately give written notice to the landlord of the emergency.
- What Are My Landlord´s Legal Obligations?
According to Nebraska law (§76-1419) the landlord must maintain fit premises. This includes meeting the standards of the Lincoln Housing Code. In addition, the landlord must make repairs to keep the premises in a habitable condition; keep all common areas of the premises clean and safe, such as hallways, common stairway, parking lot, laundry room, and sidewalks; maintain in good condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances supplied by the landlord; must provide and maintain receptacles for garbage and provide for its removal; and must supply hot and cold running water and reasonable heat at all times.
- What Should I Do If I Have A Problem With Cockroaches Or Mice?
Landlords are responsible for the prevention of insect and rodent infestation, and when infestation has taken place, shall be responsible for the extermination of any insects, rodents, or other pests when such extermination is not specifically made the responsibility of the occupant by law or ruling. (see §201.3 of the 1994 Uniform Housing Code, adopted by §21.01.010 of the Lincoln Housing Code). For example, if a Housing Code investigator determines that a building is infested by cockroaches, s/he may require the landlord to follow a pre-approved extermination program. If the investigator finds that one tenant in the building is causing the pest problem, s/he may cite the tenant and require the tenant to remove garbage or exterminate.
A pest problem should be handled like any other repair problem. The landlord must be informed in writing and you may want to consider involving the Housing Code Office. (See the section on Repairs.)
- What about Bed Bugs?
It seems that the incidence of bed bug infestation in off-campus student housing is on the increase.
Bed bugs are parasites that live off the blood of humans and other animals. They are extremely small and can live in cracks and crevices near places where people sleep at night. Bed bugs can live for over a year without feeding, so even vacant apartments cannot be considered completely safe. Bed bugs can be brought into an apartment by anyone without their knowledge; they can also travel from one unit to another though pipes and walls.
Tips for Avoiding Bed Bugs:
- If you have been traveling, inspect your luggage. Hotels, Hostels, resorts or places where large amounts of luggage are stored can harbor bed bugs.
- Avoid scavenging beds and furniture that have been discarded and left by the curb for disposal. Bed bug infestations can be found on furniture other than mattresses.
- When purchasing beds and other furniture, especially if it is used, verify that an inspection for bed bugs was conducted by a person experienced in identifying infestations.
If you suspect an infestation of bed bugs, immediately contact your landlord, the Housing Code Office (441-7785), and the Lancaster County Extension (441-7180). Treatments for bed bug infestations should only be done by professional pest control companies. Usually, a chemical is applied several times in order to kill all of the bed bugs and their eggs. Sometimes heat treatment is used. Any treatment is expensive and payment should be the responsibility of the landlord in order for him or her to adequately maintain their building in compliance with state and local laws (Lincoln Municipal Code 21.01.185 § 506 and 21.01.185 § 100.11; Nebraska Revised Statutes § 76-1419 and § 76-1427).
For more information about bed bugs, please check the Lancaster County Extension site.
- Am I Responsible For Paying Utilities?
That depends upon what the lease agreement says. Due to the rising cost of heating an apartment, you must pay close attention to the part of the rental agreement dealing with utilities. Find out how much the utilities will cost for a particular apartment before you commit yourself to a rental agreement. Contact past tenants or call the utility company and ask about last year´s cost and the projected rate increase. It is not wise to rely solely on the information your landlord provides concerning utility costs.
If the landlord is to assume the cost of particular utilities, make sure this promise is included in the lease. If you make an addition to the lease, have your landlord initial it.
- What Should I Do About The Utilities When I Move Out?
When you are vacating an apartment and the utility account is in your name, contact the utility company by telephone and in writing well in advance (30 days) of the date you are vacating to make sure your service will be terminated and your name will be removed from the account. Keep a copy of the letter. (See sample letter F).
- Can The Landlord Raise The Rent During The Lease?
When you are renting the apartment on a month-to-month basis, the landlord is required to give 30 days written notice on the day rent is due if he or she intends to raise the rent or terminate the rental agreement the following month. If you are renting under a term lease (for example, a one year lease), the landlord may not raise the rent during the term of the lease and must give proper written notice if he or she wants to raise the rent starting the first month after the lease ends. (§76-1437)
- Can The Landlord Evict Me For Having Parties?
The landlord might be able to evict you for having a party if the neighbors were disturbed and you have received previous written notice from the landlord not to have any more noisy parties or parties involving illegal activity. (see Nebraska Uniform Residential Landlord and Tenant Act: §76-1421(7), §76-1421(8) and §76-1441.) The landlord's position might be bolstered if your lease contains rules restricting parties, the tenant had reasonable notice of the rules and the rule itself does not work a substantial modification of the agreement. (See §76-1422).
- What About All Of These Rules The Landlord Has?
You are obligated to abide by rules set by the landlord if all the following conditions are met:
- A house rule must be reasonably related to one of these purposes:
- promote the safety and welfare of tenants
- preserve the landlord´s property from abuse
- make a fair distribution of services and facilities for all tenants
- The house rule must apply to all tenants fairly
- The house rule must be sufficiently explicit in its prohibition, direction or limitation.
- The tenant must have notice of the rule at the time the rental agreement is made or, if the rule is adopted later, the tenant must have reasonable notice and the rule must not work a substantial modification of the bargain.(§76-1422, §76-1431)
- A house rule must be reasonably related to one of these purposes:
Moving Out of an Apartment
- Do I Have To Give My Landlord Notice That I Am Moving?
You must give proper notice before vacating the apartment at the end of the term. In most cases, this means at least 30 days written notice prior to the date rent is due. (§76-1437) Failure to give proper notice could possibly result in you incurring responsibility for another month of rent. (See Sample Letter E)
- Do I Have To Clean The Apartment When I Move?
When vacating the apartment, you must place it in as clean a condition, excepting ordinary wear and tear, as when your lease began. You are also responsible for repairing any damages beyond normal wear and tear. Failure to clean or make repairs may result in the landlord retaining a portion of the damage deposit. (§76-1421(2), §76-1416(2)) You should take photographs and notes on cleaning efforts in case a dispute over the deposit arises later.
Some Landlords provide you with a list of tasks he or she considers essential to cleaning an apartment. If you comply with the landlord´s list, check the completed tasks on the list and keep a copy.
- How Will I Know If The Landlord Is Satisfied That My Apartment Is Clean And Undamaged?
A date and time for a move out inspection can be arranged when notice of vacating is given. (See Sample Letter E) You and the landlord can walk through the apartment and inspect it together, using the apartment inventory you filled out when you moved in. If you cannot get a check from the landlord for your deposit at the end of this meeting, be prepared to personally hand deliver or mail a letter requesting the refund of your deposit. (See Sample Letter D) If the landlord fails to show up for the inspection, you should make a record of the condition of the apartment by taking photographs or a videotape or notes on cleaning and damage. Have the people who help clean write a short description of the condition of the apartment.
- How Do I Make Sure I Don´t Get Charged For Utilities After I Move Out?
When you are vacating an apartment and the utility account is in your name, contact the utility company by telephone and in writing at least 30 days prior to moving to make sure your service will be terminated and your name will be removed from the account. Keep a copy of the letter. (See sample letter F).
- How Do I Get My Damage Deposit Back?
The landlord´s refusal to return the tenant´s damage deposit is the most common rental problem encountered by students.
Know the Law on Damage Deposits. According to §76-1416 of the Nebraska Residential Landlord Tenant Act, the landlord may use the damage deposit in only two circumstances: (1) to cover the cost of unpaid, past due rent the tenant owes, and (2) to cover the cost of repairing damages to the apartment caused by the tenant or his or her guests which exceeds normal wear and tear. If you did not damage the apartment and rent is paid, the landlord is legally obligated to return the entire deposit. The Nebraska Residential Landlord Tenant Act does not specifically spell out what constitutes "normal wear and tear." However, you should not be made to assume the cost of general upkeep and capital improvements; repairs or tasks of this nature are the responsibility of the property owner.
Write a Demand Letter. If the landlord fails to return the deposit voluntarily, you must write a letter demanding the return of the deposit. The landlord has 14 days from the receipt of the demand letter to return the deposit or mail an itemized list of the damages and cost of repairs. Your demand letter must be dated and must tell the landlord the address where the deposit can be sent. Of course, you should keep a copy of your demand letter. (see sample letter D).
Sue in Small Claims Court. If the landlord fails to respond to your demand letter within 14 days or you dispute the landlord´s claim of damages, you can sue in Small Claims Court or obtain an attorney (call SLS for representation) and ask the court to award you the deposit plus attorney´s fees. (See the Small Claims Court Section of the SLS Handbook.) The apartment inventory you filled out and the photographs you took when you moved in will be valuable tools in recovering your deposit. You can use this evidence in negotiating a settlement or in court.
- How Can I Break My Lease Without Losing My Deposit?
You may find yourself in a position of needing to move out of an apartment before the lease expires. If the reason for leaving is caused by the landlord´s noncompliance with the lease or failure to repair, certain steps may be taken which are described in the sections on repairs and landlord´s legal obligations. However, if you have personal reasons for needing to vacate before the term expires, a different plan of action is required. You may consider three alternatives: 1) Try to sublet the apartment with the landlord´s written approval, 2) Negotiate a written release from the lease agreement, 3) Give the landlord written notice of the date you are vacating as soon as possible and ask that he or she make every attempt to mitigate damages by arranging to rent the apartment to a new tenant after your moving out date.
Sublet Your Apartment. The problem with subletting is that you remain responsible to the landlord if the subletting tenants fail to pay rent or damage the premises. In addition, you may be taking on some landlord-type responsibilities in regard to the subletting tenants. Subletting arrangements are the most satisfactory when you are well acquainted with the subletting tenants and can trust that they will act responsibly. You may also secure some protection by working out a contract with the subtenants covering the terms of the sublease. If possible, it is best if you can get the landlord and the subletting tenants to enter into a new lease between themselves, releasing you from responsibility.
Negotiate a Release. It may be possible to negotiate a settlement or a mutual rescission of the lease agreement when you want to move before the expiration of the term. You may have to offer something in return for being released from the lease. Any agreement such as this must be in writing and have the notarized signatures of both parties. It is best to have an attorney draft the agreement.
Give Notice and Move. The third alternative of giving the landlord notice that you are vacating also has drawbacks. The landlord will want to deduct the cost of advertising from your deposit. In addition, even though the landlord is required by the Nebraska Landlord Tenant Act to mitigate or lessen the damages by trying to rent the apartment to new tenants (§76-1405), there is no guarantee that the landlord will zealously pursue the fulfillment of this duty. If you have to move out before the lease expires you should give as much notice as possible, at least 30 days prior to the date rent is due. The notice should be in writing, dated and you should keep a photocopy.
At best, the landlord will find new tenants who want to move in the day after you are moving out and you will only have to pay advertising costs. Even though you have broken the lease, the landlord has not suffered any loss of rent or any damage beyond advertising costs. It is illegal for a landlord to receive "double rent" or to collect rent for the same apartment during the same time period from different tenants. Note: You do not automatically lose your damage deposit because you break the lease, even though the landlord may insist on it. Damage deposits are to be used only to cover the cost of damages and unpaid past due rent.
At worst, the landlord will make a real effort but will not be able to rent the apartment to new tenants. In that case, you may be responsible for rent until the end of the term plus advertising costs. Even in this case, a landlord cannot sue for rent until it "accrues" or becomes due at the beginning of each month. When breaking a lease is unavoidable, the worst thing you can do is ignore the problem and procrastinate. With adequate notice and the cooperation of the landlord, you might be able to break a lease at little expense.
- Can I Be Evicted From My Apartment If I Do Not Pay The Rent?
Yes, but if a landlord wants to evict a tenant, the landlord must initiate the proper eviction proceeding in court. It is illegal for the landlord to take such measures as changing the locks on the tenant´s apartment, having the utilities shutoff, or confiscating the tenant´s personal property. If a landlord takes such illegal measures, it is possible for a court to award to the tenant up to three month´s rent and attorney´s fees.
- What Should I Do If I Receive A Three-Day Eviction Notice?
If you pay the rent within the three-day deadline, the landlord cannot evict you.
If you cannot pay the rent within the three-day deadline, you should contact an attorney immediately. If the landlord is going to evict you, s/he will file a proceeding in court that will call for a hearing within ten to fourteen days. You may need to prepare to move out of the apartment. If you do have to move out you should be sure that you clean the apartment and try to get the landlord to do a walk through with you, or keep records (videotape or photos) of any damage to the apartment.
Small Claims CourtSmall Claims Court
- What Is Small Claims Court?
Nebraska law requires that every county court in the state have a division known as Small Claims Court. Small Claims Court provides a forum for settling legal disputes involving $3,500 or less.
There are no lawyers allowed in Small Claims Court. The parties involved in the dispute represent themselves, including filing the petition, calling witnesses, and presenting the case. All Small Claims cases are tried before a judge rather than a jury.
If you are the person filing the petition against someone, you are the plaintiff. The defendant is the person being sued. Parties in Small Claims Court may be individuals, partnerships, corporations, unions, associations, or any kind of organization. The claim must be filed in the Small Claims Court of the county where the defendant lives or where the circumstances occurred which gave rise to the claim. If you are filing a claim in Lancaster County, go to the second floor of the County Courthouse at 575 South Tenth Street in Lincoln. The telephone number is (402) 441-7132. Small Claims Court forms may be downloaded from the Nebraska Judicial Branch website at http://court.nol.org/self-help/smallclaims.html.
- What Types Of Cases Can Be Filed In Small Claims Court?
Any type of claim may be filed in Small Claims Court as long as the loss can be measured in dollars and the amount does not exceed $3,500. Typical Small Claims lawsuits include a landlord-tenant dispute over the damage deposit, a consumer complaint against a mechanic or repairman, or a dispute arising from an automobile accident or a contract. No party may file more than two cases within a calendar week, nor more than ten claims a year in Small Claims Court.
- Should I Sue?
Everyone contemplating a Small Claims lawsuit must weigh the time and effort required to follow through on the case against the amount of money you hope to win. Some people feel that although the amount of money is not large, they want to pursue their claim for issues of "principle." This is a personal decision. Try to evaluate your case objectively. Put yourself in the shoes of the judge who might decide your case. If you were asked to reach a decision in your case based on both parties´ versions of the facts, would you arrive at a verdict in your favor? Evaluate your case by considering these questions:
- Do I Have the Defendant´s Address?
You must be able to locate the defendant in order to sue because you must arrange for the defendant to be served with a copy of the petition. If the defendant has disappeared, you may not be able to sue until you locate him or her.
- Will A Counterclaim Be Filed Against Me?
The person or business you are suing has a right to make a claim against you for money damages. These types of claims are called counterclaims. In deciding whether to sue, consider any claim the defendant may have against you. If the judge decides you are wrong and the defendant is right, you may find yourself in a worse position than if you had never sued. You could be ordered to pay the defendant a money judgment and pay court costs too.
- Does The Defendant Have Any Assets?
Once you win a Small Claims Court case, you must take steps to collect a judgment if the defendant does not pay you. Collection may take the form of garnishing the defendant´s wages or bank account or attaching his or her property. Sometimes the defendant has no assets which can be attached or income which can be garnished. Since we don´t have debtor´s prison in this country, you may have reached a dead end even though you won your case.
- Do I Have The Evidence I Need To Win?
In order to win a Small Claims lawsuit, you must have proof. Have you kept the receipts, canceled checks, a contract, letters, bills, or other documents required to prove your case? Is your essential witness leaving town? You need to collect and organize your evidence early in the game so you can decide if you can prove your case.
- Do I Have the Defendant´s Address?
Alternatives to Suing
- Are There Alternatives To Small Claims Court?
Yes. You can try to settle the case out of court, you can participate in mediation, you can file a complaint with a government agency, or you can retain an attorney to represent you in county court.
It is a good idea to attempt to settle a dispute before going to court or even before you file your petition. An early settlement saves time and filing fees and you are more likely to get your money because the defendant has not spent time and money preparing for court.
An attempt to settle the case gives the judge the impression that you are a fair and reasonable person. You will more likely convince the judge that your previous conduct has been fair and reasonable if you have made an honest effort to settle your dispute before filing the case. Judges, with their crowded court dockets do not like to see court time wasted on matters that could have been settled privately.
The first step in settling a dispute is to telephone the other party. Do not make the call when you are angry. Be brief and businesslike and stick to the facts. Tell the other party your position and exactly what you want. You must decide what kind of settlement you will accept before you make the telephone call. Don´t accept vague promises from the other party. Clarify what specific action will be taken or the amount of money that will be paid and determine how and when this is to be accomplished.
If your settlement attempts do not get the desired results, the second step is to write a demand letter. Student Legal Services often helps students write demand letters or writes the letter on behalf of the student, using law office stationery. As with the phone call, your letter should stick to the facts and clearly state what you want. It is usually a good idea to ask for cooperation by a certain date. Be sure your letter is dated and photocopied before you mail it. You may need a copy of the letter to present to the judge in Small Claims Court if your attempt to settle is unsuccessful. Do not admit responsibility or guilt or state anything that might hurt your case if you end up in court.
In many situations, it is best to get a settlement agreement in writing, signed by the parties. This is especially true when you are agreeing to let the other party pay you money in installments. It is a good idea to have an attorney help you draft a settlement agreement. If you have already filed your Small Claims petition before you reach a settlement, you can file a dismissal of your petition and attach a copy of your settlement agreement to the dismissal.
If settling the dispute by yourself is not possible, consider mediation. Mediation is a process which brings two or more parties together to resolve their dispute through negotiation. A trained mediator facilitates the process of negotiation by sitting down with the parties and helping them develop possible solutions to the problem. The mediator does not decide the issues for the parties but encourages them to reach a mutually agreeable solution. Sometimes an agreement is put in writing and parties sign it. The final written agreement may be enforced as a legal contract.
When two UNL students have a dispute and want to try mediation, Student Legal Services refers them to The Mediation Center in Lincoln where they are charged a small fee based on income. Participation in mediation is always voluntary and it often results in a solution that is more satisfactory than a court judgment. There are mediation centers throughout Nebraska that can be located by contacting The Mediation Center at (402) 441-5740 or visiting the web site at http://www.themediationcenter.org/.
Anyone who files a lawsuit in the Lancaster County Court will be given an opportunity to participate in mediation on the day of court. Instead of the judge deciding the case, the people in dispute sit down with two mediators in a private room to work towards an agreeable solution. If they are unable to reach an agreement, they can still have the judge hear the case and decide.
- Getting a Government Agency to Help.
There are many government agencies available to help you settle many kinds of disputes. Some agencies provide investigation and arbitration boards. Some are very effective and some are not. Finding the right government agency usually involves a few telephone calls. Don´t be discouraged if your first phone call doesn´t locate the right agency. Ask if they can refer you to someone who can assist you. Student Legal Services has listings of government agencies and can try to help you find the right one. Once you find an agency to help you handle your problem, get the information necessary to pursue your claim including the estimated length of time it will take to follow through on your case. Write down the name and title of the person you talk to in case you need to call him or her later. Find out exactly what the agency can and cannot do for you.
- Suing in County Court Rather than Small Claims Court.
There are several types of cases that should be filed in County Court rather than Small Claims Court. If you are seeking an award of money in excess of $3,500 you should not file in Small Claims Court since the judge cannot award you more than that amount.
If you want to be represented by an attorney you cannot sue in Small Claims Court. If your case turns on a complex legal technicality you may want to hire an attorney to argue your case. If you are not fluent in the English language or you have trouble speaking in public, you may want to have an attorney represent you in County Court. Self-representation is allowed in County Court but the legal rules of evidence are in effect, unlike Small Claims Court. Your opponent is free to be represented by an attorney in County Court.
Once a plaintiff has filed a case in Small Claims Court, it is possible for the defendant to file a motion to remove the case to County Court. Such a motion is usually written and filed by the defendant´s attorney and it must be filed at least 48 hours prior to your Small Claims Court trial date. If the motion is granted, the case will be transferred to County Court.
- How Do I File A Claim In Small Claims Court?
To start a Small Claims Court lawsuit you must go to the County Courthouse and complete a petition form, sign it before the clerk, and pay the filing fee and service costs. You may mail a completed petition form to the clerk if you have signed it before a Nebraska Notary Public. The filing fee is $26.00 and serving the petition on the defendant by certified mail costs approximately $5.73. If you arrange to have the constable or sheriff serve the defendant with the petition, this will cost $20.00 to $30.00. The judge will not hear your case unless the defendant has been properly served with the petition. You may request in your petition that these court costs be added to the amount of money the defendant owes you. When you file your case, the clerk will give you a trial date and time about four weeks from the date you file.
Preparing Your Case
- How Do I Prepare For My Small Claims Court Trial?
Preparing your case before you go to court is as important as what you say during your trial. The judge hears many cases in one day and has an interest in making sure cases proceed smoothly and rapidly. The judge will look upon you and your case more favorably if you are organized and prepared and do not waste the judge´s time with insignificant details of your story or complaints about your opponent´s moral character. Don´t wait until the day before your trial to prepare. Thinking about your case a few weeks in advance of the trial date can mean the difference between winning and losing. Here are some things to do:
- Consult An Attorney.
If you are going to consult an attorney concerning your case do it in the early stages. An attorney can help you understand the law pertaining to your situation and give you some tips on what kind of proof you will need to show the court.
- Locate and Organize Your Documents.
Several weeks before your trial date, gather together all the written documents, letters, and photographs which support your position and put them in a file. If you know of state or city laws that pertain to your case, obtain photocopies and add them to your file. Make a copy of everything you intend to give the judge.
- Notify Witnesses of the Trial Date.
You must decide whether or not you need to call witnesses at the trial. Unless you are 100% sure the witness will show up, it is best to file a subpoena with the Small Claims clerk to insure his or her appearance on the trial date. You may also require the witness to bring documents in his or her possession. You should request a subpoena at least two weeks prior to the trial because the subpoena must be served on the witness. Avoid an unpleasant surprise at trial by making sure you know what a potential witness will say about your case before you arrange for a subpoena. A witness fee of $8.00 is generally awarded to a witness who contributes relevant evidence. The court decides which party will pay this witness fee. Sometimes the losing party must pay witness fees and sometimes each party pays the fees for the witnesses he or she subpoenaed. Witnesses can be questioned by the judge and the other party after they have responded to your questions.
- Prepare Affidavits.
Written statements or affidavits of persons not present in court may be received by the judge. An affidavit is a statement that has been signed before a Notary Public. Such statements or affidavits are not given as much weight as the personal testimony of a witness because the judge and opposing party have no opportunity to question the person making the out-of-court statement.
- Prepare a Fact Sheet and Questions.
Think about your case and write down the main facts in chronological order with the date beside each event. Leave out minor details. Think about each witness, including yourself, and decide the main points you want their testimony to include. Then write out questions to ask each witness to bring out these points. Try to anticipate what testimony the other party and his or her witnesses will give. Write out questions to ask them which will bring out facts supporting your side of the story.
- Consult An Attorney.
- What If I Am The Defendant In Small Claims Court?
The defendant has the same responsibility for case preparation as the plaintiff. First, the defendant must decide if it is necessary to file a counterclaim against the plaintiff. If the defendant wants the judge to offset any money the plaintiff may owe the defendant, a counterclaim must be filed. This should be done at least a week prior to the trial date since the plaintiff must receive a copy of the counterclaim two full days before the trial. The clerk of the Small Claims Court has forms for a counterclaim or you can download a counterclaimn form by going to the Small Claims Court section of the Nebraska Judicial Branch website at www.supremecourt.ne.gov. Even if a counterclaim is not called for, the defendant must still prepare to defend against the plaintiff´s claim. This preparation should involve the same steps as the plaintiff, including gathering documents, finding witnesses, and writing questions.
Going to Court
- How Can I Move The Trial Date?
Continuing the case to a later date will only be allowed when a good reason is given. If both parties agree on a new date, it is only necessary to inform the court. Otherwise, the party who wants the continuance must talk to the clerk of the Small Claims Court in person or in writing prior to the trial date.
- What Happens In Court?
If you are nervous about appearing in court it might help to observe other people in Small Claims Court the week before your own trial. Small Claims Court in Lancaster County is held on Thursday mornings at the County Courthouse, usually in Courtroom #21 on the second floor. A Small Claims Court case generally proceeds as follows:
- Greet your witnesses that you have called the night before to make sure they are present and ready to testify.
- Arrive at court on time and check the docket list outside the courtroom to make sure your case is on the list.
- Bring your file to court with you including your evidence and prepared questions.
- In Lancaster County Small Claims Court, this is the point at which the mediators stand up in court, explain the mediation process, and ask if anyone wants to try it. Those who want to try mediation go to a room with the mediator. If mediation does not work, the parties return to court.
- If you have decided not to try mediation, wait for the bailiff to call your case. When your case is called, walk up to one of the counsel tables in front of the judge´s bench and sit down.
- The judge will direct the activity in the courtroom from here on. Some judges proceed more informally than others. Try to remain calm and listen carefully to what is being said. Be polite to the judge. A Small Claims lawsuit is a very emotional experience for most people. It is to your advantage to control your temper and project the appearance of a reasonable person seeking a fair settlement of the dispute.
- The plaintiff presents evidence first. You will give all your written and physical evidence to the bailiff who will mark it as exhibits 1, 2, etc. You will explain this evidence to the judge and let him or her look at it.
- Next, the plaintiff calls witnesses to testify. The plaintiff may also testify and does in most cases. The order in which witnesses testify is not important as long as it is logical. You may expect a question from the judge at anytime. The judge may also allow the defendant to ask the witnesses questions.
- When the plaintiff is finished, it is the defendant´s turn. The same procedure is followed.
- When both parties have concluded their evidence and made their arguments to the judge, the trial is over. The judge may ask a few more questions.
- The judge usually will not give his or her decision immediately after the trial. Both parties will be informed of the outcome of the trial a few days later by mail.
- What Is A Default Judgment?
The judge enters a default judgment in favor of the plaintiff in cases where the defendant receives a copy of the plaintiff´s petition but fails to show up in court at the time set for trial. The plaintiff will be required to present the basic facts supporting his or her claim before the judge will award a default judgment. The Plaintiff would be wise to wait 30 days to take collection action on the default judgment because after 30 days it is too late for the defendant to appeal. If the plaintiff fails to appear in court on the trial date, the case will be dismissed.
- How Do I Appeal A Small Claims Court Decision?
If either party is dissatisfied with the judgment of the Small Claims Court, he or she may appeal to the District Court. Certain steps must be taken to preserve the right to appeal. It is permissible for the party seeking an appeal to be represented by an attorney. Since the appeal proceedings can become fairly complicated, it is wise to consider having an attorney represent you in your appeal.
The party appealing must, within 30 days after rendition of judgment, file a notice of appeal with the clerk of the County Court and serve a copy of the notice upon the other party. A docket fee of $82 and a $50 cash bond must also be paid to the clerk. The bond will be refunded if the appealing party wins or pays the other party upon losing the appeal. Small Claims Court appeal forms are available on the Nebraska Judicial Branch website at http://court.nol.org/self-help/smallclaims.html.
Collecting the Judgement
- How Do I Collect My Judgment?
Collecting your money from the other party is sometimes the most difficult and frustrating part of pursuing a claim. The court does not perform this task for you; the party winning the judgment is solely responsible for collecting it.
Contact the losing party immediately after the judgment is rendered and request payment. Make arrangements as to the date, amount, and method of payment. Arrange to be paid as quickly as possible since the longer the payment process is delayed the less likely it is that you will receive the full amount of the judgment. If the losing party fails to live up to the terms of your agreement regarding payment send a letter of reminder immediately. It should state that unless payment is made, you will be forced to take whatever action is necessary to collect your money. Remember to date and copy the letter before sending it. If your letter does not get results, you must choose another collection method.
- Collection Agency.
A private collection agency can be found by looking in the yellow pages. A collection agency usually charges a percentage of the amount collected. The percentage may range from 30% to 50% of your money.
You may garnish either the losing party´s wages or bank account. If you know where the party banks, garnishing the bank account is one of the easier methods of collecting your judgment. The Small Claims Court clerk has the forms you need to file a garnishment. It costs $5.00 to file a garnishment or execution and you must wait 30 days after the judgment is rendered.
- Execution Against Property.
This method of collection can be tricky and you are better off consulting an attorney if you must use this method. Certain property such as a home, appliances and a car may be exempt from execution. Also, you must check for any liens against the property. Because of the complexity involved, executing against real estate is usually only used as a last resort.
Go to the Nebraska Judicial Branch website for more information on collecting your Small Claims Court judgment: www.supremecourt.ne.gov.
- Collection Agency.
Student RightsStudent Rights
- What Can I Do If I Have Been Discriminated Against?
If you feel you have been a victim of discrimination based on race, color, gender, creed, religion, national origin, disability, age, sexual preference or marital status, you may want to discuss the legal avenues available. Contact Student Legal Services, a private attorney or one of the following sources:
Equity, Access and Diversity Programs
128 Administration Building
Nebraska Equal Opportunity Commission
5th Floor, 301 Centennial Mall South
Investigates charges of alleged discrimination
Federal Equal Opportunity Commission
1222 Spruce Ave, Rm. # 8.100
St. Louis, MO 63103
Lincoln Commission on Human Rights
440 S. 8th Street, Suite 101
Lincoln, NE 68508
It is a good idea to keep a private record of the dates and events that form the basis of your charge and the names of the people involved, whether they are perpetrators or witnesses. This record will help you explain to the attorney exactly what has been going on and may be very useful if a court action results.
Do not delay in seeking legal advice. In some instances discrimination complaints must be filed within 180 days of the discriminatory act.
- What Is Sexual Harassment In The Workplace?
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment. Sexual harassment is a violation of state and federal laws.
The victim as well as the harasser may be a woman or a man, and the victim does not have to be of the opposite sex. The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee. The victim does not have to be the person harassed but could be anyone affected by the offensive conduct. Unlawful sexual harassment may occur without economic injury to or discharge of the victim. The harasser's conduct must be unwelcome; the victim should use any employer complaint mechanism or grievance system available. It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation.
- What Can I Do If I Am Being Sexually Harassed At Work?
Be sure to express your feelings during the incident to the person harassing you indicating that you are not interested. In your report of the incident, describe the feeling you had both during and afterwards. Immediately document in writing exactly what occurred, including verbal portions. List the names and job positions of witnesses, especially supervisory employees, and specify date and location of the incident. Notify in writing, either your supervisor or, if that is not practical, the Affirmative Action Officer, or the Personnel Director. Provide that person with copies of the information you have gathered; be sure to keep the original. Indicate your insistence that some action be taken. If the problem is not corrected immediately, you should file a formal complaint with the Nebraska Equal Opportunity Commission or the U.S. Equal Employment Opportunity Commission within 180 days of the incident (may be extended to 300 days if also covered by state law). The Commission will review your charge and contact you by mail or in person. The Commission investigates your charge and if it finds it is justified, the Commission tries by conciliation to end the discrimination. If the conciliation fails, the case is sent to Public Hearing. It is forbidden by law to punish you for filing a charge, for acting as a witness, or for assisting complaint.
Though Student Legal Services attorneys do not handle sexual harassment proceedings, registered students may come into the office to discuss their situation and find resources that may be helpful. Some organizations that may be able to assist you are the Nebraska Equal Opportunity Commission, Lincoln Commission on Human Rights, and Nebraska Bar Association.
If it is an on-campus situation, contact the Equity, Access, and Diversity Programs.
- What Is The Student Code Of Conduct?
The University of Nebraska Student Code of Conduct outlines the rights and responsibilities students have as members of the university community. The purpose of the Code is to set forth the rules of conduct required of all UNL students and to ensure the right to due process and counsel for a student accused of misconduct. It also protects the rights of the university community by providing for appropriate sanctions when violations occur. You can obtain a copy of the UNL Student Code of Conduct by contacting Student Judicial Affairs at (402) 472-2021, 106 ADM, or go to the web site at http://stuafs.unl.edu/ja/code/.
- What Is An Administrative Disposition?
If you are accused of misconduct under the Code you will receive a letter from the Judicial Affairs Office advising you to schedule a meeting with the Director or an assistant. If you ignore the letter and fail to schedule an appointment the University will put a hold on your school registration or grades or refer the matter to the Judicial Board.
Some cases of misconduct are addressed at a meeting between the student and the Director of Judicial Affairs. After talking with the student about the alleged misconduct and reviewing documents such as police reports the Director may offer the student an administrative disposition of his case. An administrative disposition may include sanctions ranging from a warning to suspension or expulsion from school. A sanction might include probation with requirements such as taking an alcohol education class or completing community service hours. The student has the choice of accepting or rejecting an offer of an administrative disposition. If the student rejects the offer, the case will be referred to the Judicial Board for a hearing. Cases of alleged misconduct that are considered more serious are not handled by an administrative disposition but are referred directly to the Judicial Board for a full hearing.
If you believe the accusations against you are serious you should consult an attorney before scheduling a meeting with the Director. You may even want to bring your attorney with you to the meeting. Although Student Legal Services attorneys will meet with a student to outline the process and discuss options, SLS attorneys do not meet with the Director or represent students before the Judicial Board.
- What Are My Rights At A Judicial Board Hearing?
The Board, composed of students and faculty members, hears cases of alleged misconduct and determines which sanctions are appropriate if a violation is found. If you are required to appear before the Judicial Board you are entitled to certain rights although these rights are more limited than those guaranteed in the criminal justice system:
- Closed Hearing. Judicial Board hearings are closed to the public in order to comply with the requirements of the Federal Family Educational Rights and Privacy Act.
- Confidential Files. Disciplinary files are confidential and may not be released without the written permission of the individual student or as otherwise authorized or required by law.
- Right to Legal Counsel. A student appearing before the Judicial Board has a right to have an attorney present at all times. However the right to an attorney is not the same as in a court of law. The student must speak on her own behalf and the legal counsel may not speak at the hearings but may advise the student during any proceeding.
- Due Process. Students are entitled to timely notice of the charges against them and of the time and place of all hearings. Students have the right to call witnesses and to ask questions during a hearing. Students have the right to remain silent during the hearing and do not have to answer questions asked by the board members.
- Appeal. A student that has been found to be in violation of the Student Code of Conduct has the right to appeal the decision of the Judicial Board to the University Appeals Board. The Student Code of Conduct outlines the steps required to appeal.
Student Grievance and Appeal Procedures
Student Privacy Issues
- Do I Have The Right As A College Student To Access The University´s Files On Me?
Yes. The Family Education Rights and Privacy Act of 1974 (FERPA) guarantees college students the right to access educational records. FERPA is also referred to as the Buckley Amendment because it was sponsored by Senator James Buckley of New York.
FERPA applies to any public or private agency or institution receiving federal funding.
FERPA allows students pursuing postsecondary education or students who are above 18 years of age the right to access their education records, the ability to get their education records amended, and some control over the disclosure of their information from the records.
FERPA covers all "education records" maintained by an educational institution.
FERPA requires prior written consent to be given in order to disclose records to someone else.
For more general information on this law, check out The Department of Education´s website at www.ed.gov.
- What Are "Education Records"?
Any records maintained by an educational institute with information personally identifying you as an individual are defined as education records. In other words, these records directly relate to you as a student. Education Records do not include law enforcement, doctor-patient and alumni records. FERPA is not violated by the posting of directory information. You can request that your directory information not be published.
- What Is Directory Information?
Your name, address, telephone number, date and place of birth; your major field of study, participation in an officially recognized activity or sport and your weight and height if you are on an athletic team; your dates of attendance at the school, the degrees and awards you have received and the previous educational institution that you attended.
- Are There Any Exceptions To FERPA?
Yes. Education records are generally only released by written consent, but there are exceptions. Some of the major exceptions are:
- Authorized auditors from state and federal programs. For example, The Department of Education, the United States´ Attorney General´s Office and educational authorities from the State of Nebraska.
- Personnel from the University with a legitimate educational interest.
- Person(s) providing financial aid to you.
- In emergency situations, information can be given out if necessary to protect a student or another student´s health or safety.
- To read other exceptions, go to http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html.
- Are My Parents Prevented From Accessing My Education Records Under FERPA?
Not necessarily. If your parents establish that you are their dependent as defined by the Internal Revenue Code of 1986, § 152, then your parent can access your records at the University´s discretion. The IRS Code states a dependant is someone (such as a son or a daughter) who received over half of his/her support during the taxable calendar year. The law is available at http://www.law.cornell.edu/uscode/search/index.html.
- How Does FERPA Affect The University´s Policies?
The University is obligated to inform students annually of their rights under FERPA. The University informs students of its records policy through the student handbook. The handbook is accessible on the web at http://www.unl.edu/ucomm/current/ (to click on "academic handbook" and see chapter on "student records").
- Where Are Student Records Located At UNL?
Students´ UNL records include a cumulative academic folder in the Office of Registration and Records. This folder may also be held by some college offices, faculty advisers or academic departments–depending on your major. If needed, a confidential file is kept in the Division of University Housing, the Office of Greek Affairs, or the Office of the Vice Chancellor of Student Affairs. The file´s location depends on the circumstances of your behavior and/or the disciplinary action(s) taken against you. UNL may have other personal student files in the Career Planning and Placement Center, the Office of Scholarships and Financial Aid, or the Office of Student Accounts.
- Who Has Access To My Files?
All faculty and staff in the office where your academic information is kept can access your files. Typically, only staff in the office in which you had a disciplinary issue can access your behavioral information.
- Who Cannot Access My Files?
No person or agency outside the University can access your information without your written consent.
- What If I Think The Law Is Not Being Followed By The University?
The United States Department of Education has an office and review board for investigating and reviewing complaints of FERPA violations. If the Secretary of the Department finds the school has failed to comply with FERPA action may be taken to terminate financial assistance from the federal government to the institution. If you have a complaint you are required to file the alleged violation within 180 days from its occurrence. Send the complaint to: Family Policy Compliance Office, U.S. Department of Education, 400 Maryland Avenue, SW, Washington D.C., 20202-5920.
Students must have reasonable cause for making the allegation. You should write the complaint with factual and specific allegations for why you believe a violation occurred. This includes:
- Relevant dates (e.g., the date you learned of the violation)
- Names of those involved (e.g., school officials, campus police)
- Detailed description of the education record involved and of any contact had with school officials about the matter (e.g., dates and times of telephone calls, copies of correspondence with the school)
- Name and address of the school
- Any other information that would be helpful in evaluating your complaint.
For more information on how to allege a complaint about a FERPA violation, see http://www.ed.gov/policy/gen/guid/fpco/ferpa/students.html.
- If I Get In Trouble On Campus Will My Parents Find Out?
Records of campus disciplinary proceedings are also protected under FERPA and cannot be disclosed without your written consent. As stated earlier, if you are dependent on your parents for tax purposes then your parents can also access your disciplinary information. Other disciplinary exceptions are:
Alcohol Amendment: In 1998, FERPA was amended in order to allow colleges to disclose to parents a son/daughter´s use or possession of alcohol or controlled substance. A student´s consent is not necessary for this disclosure to be made and the student must be under 21 at the time of disclosure; and
Victims of Crimes: Victims of violent crimes and sexual assaults are able to access information regarding the disciplinary sanctions given to an alleged attacker without the attacker´s consent.
- How Can I Access My Personal Files At The University?
The student handbook allows students to access personal files by contacting the chief supervisor of the particular department where the records are stored. The supervisor will explain the steps you need to take to access your files, along with the costs involved if copies are requested. In addition, MyRed offers your grades, financial and registration information to you, but you need your student I.D. and password.
Traffic & MisdemeanorsParking on UNL Campus
Parking on the UNL Campus
- Do I Have To Buy A Parking Permit?
If you want to use UNL parking facilities, you need to obtain a parking permit. All UNL parking facilities, except meters and time-controlled zones, require a permit at all times unless otherwise posted. Vehicles will be ticketed once each 24-hour period (beginning at midnight) for most violations except metered and time-controlled areas.
For the latest information on obtaining a parking permit and the costs go the UNL Parking and Transit Services web cite: http://parking.unl.edu.
- What Happens If I Get A Ticket?
You must pay the ticket within 30 calendar days from the date of the violation. The penalties for various types of parking tickets range from $10 to $200 with the more expensive tickets being Unauthorized Parking in a Handicapped Stall or using a counterfeit or stolen permit. For a complete list of the parking ticket fine schedule, go to http://parking.unl.edu/enforcement.
Failure to pay any portion of your parking tickets will result in your license plate number being placed on the impoundment list for towing. Unpaid parking tickets may also result in a student´s grades or registration being held.
- This Ticket Is A Mistake! What Can I Do About It?
Appeal it. If you feel you have been unjustly issued a parking ticket you have 14 days from the date of the violation to file an appeal with UNL Parking Appeals Committee. You must prove by "substantial and valid evidence" that the parking violation was not committed or that it occurred due to circumstances beyond your control. An appeal may be filed by filling out an appeal form at the UNL Parking and Transit Office on campus at 625 Stadium Drive Parking Garage, Suite A (lower south west corner) or sending a letter by regular mail or e-mail or through the web site. E-mail: email@example.com Web site: http://parking.unl.edu.
City of Lincoln Tickets
- I Received A Parking Ticket From The City While On Campus. Do I Have To Pay?
If you don´t pay the ticket within 15 working days your license plate will go on the city´s impoundment list and your car can be towed. Most city parking tickets cost $10. The fine is $40 for parking in front of a fire hydrant, $100 for parking in a handicapped stall without a permit on the first offense, $200 on the second offense and $300 on the third offense. If you miss the deadline on paying the ticket and your car gets towed you will have to pay the $53 towing fee in addition to storage costs.
- Is There Anyone I Can Talk To About This Unfair City Parking Ticket?
If you believe your ticket would be dismissed if someone heard your explanation, you might try talking to one of the attorneys representing the city. You should be aware that anything you tell a city attorney may be used against you in court. He or she is not representing you. The city attorney´s job is to prove that you violated the law. However, since he or she has the discretionary power to dismiss your ticket, you may elect to try to discuss it with him or her.
- How Do I Contest This City Parking Ticket In Court?
If the city attorney chooses not to dismiss your ticket, you may ask him or her to set an arraignment date. On your arraignment date, you will go to the assigned courtroom and enter a plea of not guilty. The judge will set another date for trial. You may hire an attorney or represent yourself at the trial on your parking ticket.
- I Received A Traffic Ticket. Do I Have To Appear In Court?
Unless you pay the ticket ahead of time through the mail you must appear in court on the date and time noted in a box on the lower right hand side of the ticket. This first court date is called an arraignment.
- What Is An Arraignment?
An arraignment is a hearing in court before a judge in which the charge against you is read. You will be asked to enter a plea of "guilty" or "not guilty." If you have not had an opportunity to consult an attorney prior to the arraignment and you wish to do so, it is possible to enter a plea of "not guilty" at the arraignment and still change your plea to "no contest" or "guilty" at a later date if, after discussing your case with an attorney, you decide you do not want to contest the charge. If you plead "not guilty" at the arraignment, the judge will set a date for trial approximately four weeks from the day of arraignment. Pleading not guilty at the arraignment leaves all your options open until you have more time to decide what you want to do.
If you do not want to contest the charge or talk to an attorney, you can plead "guilty" or "no contest" at the arraignment and the judge will usually sentence you on the spot. If you were involved in an auto accident but you do not want to contest the traffic ticket, always plead "no contest" rather than "guilty."
- Can I Just Pay The Traffic Ticket Without Appearing In Court?
Sometimes it is possible to avoid going to court if you wish to plead guilty to some types of traffic offenses. This can be done by signing a "waiver" of rights form, which is sometimes printed on the back on the ticket. Then you either mail it to the court along with the fine and court costs or sign it and pay the fine in the office of the Clerk of the Court.
When you sign a waiver you waive your constitutional right to a trial, to confront witnesses against you and other related rights. However, if you have no intention of contesting your case, it may be the most convenient way to proceed.
Some traffic offenses are waiverable and some are not. Counties differ in their waiver policies. In most counties, you must appear in court if, for example, you are charged with driving in excess of 20 miles per hour over the speed limit. You are also often not allowed to pay the fine by waiver if you are involved in an accident or are charged with negligent, careless, or reckless driving. Waiver forms and information concerning waivers can be obtained from the courthouse of the county where you received the citation.
If you are pleading guilty by waiver, remember that the court must receive the waiver and payment of fine and court costs PRIOR to the date of the arraignment. If you fail to show up for your arraignment and you fail to take care of the citation by waiver, a bench warrant can be issued for your arrest and you can be charged with the additional criminal offense of failing to appear. Notification of your failure to appear will be sent to the Nebraska Department of Motor Vehicles, and your driver´s license will be suspended unless you take care of the ticket within 20 days.
- I Want A Trial On My Traffic Ticket: Should I Hire An Attorney?
If you want to contest a traffic offense you must decide whether to hire an attorney to represent you or to represent yourself. Because of the less severe penalties given in traffic offense cases than in other criminal cases, the free legal services of a court-appointed attorney are usually not provided.
This may come down to a cost/benefit analysis: You must weigh the cost of hiring an attorney to represent you in court against the possible penalties. If you face just a fine it may not be worth hiring an attorney but if your driver´s license is at stake because of points it may very well be worth the expense.
Student Legal Services has a policy of representing students in certain types of traffic offense cases in Lancaster County. Even if your case does not fall within the Student Legal Services guidelines for representation, an SLS attorney can review your case and help you consider your options.
- Can I Just Represent Myself?
Yes, you can but there is an old saying in the legal profession that he who represents himself has a fool for a client. If you have considered the alternatives and still want to represent yourself, you need to learn how a traffic offense is prosecuted. It is the prosecutor´s job to prove beyond a reasonable doubt that you committed the violation.
The prosecutor will present evidence first. This usually involves calling as a witness the police officer who gave you the citation. After the officer testifies you will have an opportunity to ask him or her questions. The prosecutor sometimes calls additional witnesses.
After the prosecutor has finished putting on evidence, it is your turn. You (the defendant) may take the oath and testify for yourself. If you do so, the prosecutor can ask you questions after you testify. You may also call other witnesses who can help your case, such as a passenger who can testify that you were not speeding.
After you have finished presenting your evidence, the prosecutor has the option of calling rebuttal witnesses. The prosecutor and then the defendant will each have an opportunity to summarize their arguments to the judge before the trial is over.
- What Is "The Point System"?
In addition to the penalties of fines and court costs, a conviction of some types of traffic violations can also cost you points off your driver´s license. The Nebraska Department of Motor Vehicles (DMV) will revoke the driver´s license and privilege to drive of anyone accumulating 12 or more points within a two-year period.
The revocation is usually for a six-month period starting the date the order of revocation is signed. A person who has had his or her driver´s license revoked must complete a driver´s education course approved by the Department of Motor Vehicles and must pay the cost of the course to get the license back.
If you are under 21 years old and accumulate six or more points within a one-year period you will be notified by the DMV that you must take an eight-hour driving class or your license will be suspended.
Anyone the police catch driving during the period of revocation will be charged with the crime of Driving Under a Suspended License (DUS). The penalty for conviction of DUS in Lancaster County is up to 90 days in jail and a fine of $500, and one year additional license suspension.
- How Can I Check My Points?
If you want to find out how many points are assessed for a particular traffic violation consult Section 60-4,182, Volume 3B of the Nebraska Revised Statutes. The Department of Motor Vehicles keeps a record of points accumulated for anyone holding a Nebraska driver´s license. You can access the Nebraska Department of Motor Vehicles website at https://www.nebraska.gov/dmv/reinstatements/client.cgi to find out how many points you have accumulated.
- What Is The Difference Between A Misdemeanor And A Felony?
Crimes are divided into three general categories: felonies, misdemeanors and infractions. Crimes classified as felonies are considered to be more serious, carry a more severe penalty, and involve a more complex court procedure. Although misdemeanors are considered less serious than felonies, a person convicted of a misdemeanor often risks the possibility of being fined and sometimes going to jail. Infractions usually carry only a fine and are often categorized with traffic violations. It is possible to be charged with violating a federal law, state law or a city ordinance.
- Can I Get A Free Attorney To Represent Me?
The Student Legal Services´ attorneys provide court representation to students charged with misdemeanors in Lancaster County but not felonies. Students charged with a felony or a misdemeanor outside of Lancaster County need to hire a private attorney or request the appointment of the Public Defender. Public Defenders are attorneys appointed by the court to represent defendants who cannot afford to hire their own attorneys.
If Student Legal Services cannot represent you, we can give you suggestions on how to obtain legal representation.
- I´ve Been Cited (Arrested) For A Misdemeanor: What Are My Rights?
Finding yourself in a situation in which you are arrested and questioned by the police is not something anyone wants to think about. However, unless you understand some basic facts about your rights and responsibilities during various stages of the criminal process, it is easy to incriminate yourself and jeopardize your legal defense.
First Stage: Arrest
- How Do I Know If I´m Under Arrest?
You are arrested when you are taken into custody or when your freedom is restricted by a police officer. Sometimes arrest involves a search of your person or a "pat down" and handcuffing. Many times you will simply be instructed to accompany an officer to the police station. If you are ever in doubt as to whether you are under arrest or not, it usually doesn´t hurt to ask. If you are not under arrest, you should be free to leave. If the officer will not let you leave, then you are under arrest. Once you are under arrest, your Miranda Rights are in effect.
- What Are Miranda Rights?
- You have a right to remain silent.
- Anything you say to anyone can and will be used against you.
- You have a right to have an attorney present to represent you.
- If you cannot afford an attorney, the court will appoint one.
Whether the police officer tells you these rights or not, you should exercise them. It is best not to answer any questions from the police or talk to anyone until you have an opportunity to talk to an attorney. Being under arrest is an intimidating situation. You may think that if you answer the
officer´s questions, he or she will let you go or the judge will be easier on you. This is not the case. It is the officer´s job to collect evidence in support of the charges. If you do have information which can help your case, let an attorney help you decide how the information can best be used. If the police want to question you, tell them you want to call your attorney and you don´t want to talk to them until the attorney is present.
- What Is The Difference Between Receiving A Citation And Being Arrested?
Tickets or citations are sometimes given to a defendant instead of going through the process of taking you to jail, fingerprinting you and taking your mug shot. If you are issued a ticket for a misdemeanor, that is considered an arrest. You are required to show up in court for your arraignment on the date and time noted on the citation. Failure to appear can result in a criminal charge and the issuing of a bench warrant for your arrest.
If you are taken to jail and charged with a misdemeanor it is often possible to post bond and be released from jail within a few hours. If you do not have enough money with you to post your bond you can use your one phone call to contact someone who can post it for you. If you are charged with a felony you will have to stay in jail until the judge sets your bond at the arraignment, which is usually within 24 hours unless you are arrested on the weekend when court is not in session. The purpose of a bond is to insure that you will appear at your next court date. If you do not appear the bond money will be forfeited, a warrant will be issued for your arrest and you will receive the additional charge of Failure to Appear.
- Can My Residence Hall Room Be Searched, And What Are The Consequences Of Getting Caught With Drugs Or Alcohol?
The right to privacy, guaranteed by federal and state laws, applies to your residence hall room. Entry to student rooms is limited to emergency or repair circumstances as deemed necessary by complex staff, or as may be legally required.
In order to maintain its property and a safe environment for students, University Housing reserves the right to have authorized personnel wearing identification enter and inspect residence hall rooms at reasonable times, as deemed necessary. University personnel may enter a room after first knocking on the room door and announcing a request to enter. Reasonable time will be given for occupants to respond before entry occurs. If residents are not in the room, a room entry report will be left to notify residents of such an entrance.
Consequences for violations may include educational requirement, conduct probation, behavioral requirement, parental notification, housing relocation, housing contract cancellation, and/or referral to Judicial Affairs Office.
For more information about UNL´s policy on your right of privacy in the residence halls, go to: http://housing.unl.edu/parents/pdf/rightsresponsibilities11.pdf.
- What If The Police Knock On My Door?
Resident Assistants may call the police if they suspect alcohol or drug use/possession. The police may take steps to obtain a warrant to enter the student’s residence room unless the officer decides there is probable cause to believe criminal activity is going on and emergency circumstances justify immediate entry.
If the police knock on your door you should step outside, close the door behind you and politely ask how you can help. You should not give the police consent to search your room, person or possessions. On the other hand, you should never physically resist a police officer. If you would like to learn more about your constitutional rights when dealing with law enforcement check out http://www.FlexYourRights.org.
If the police are called to investigate an incident in the residence halls involving illegal drugs or alcohol, the student may be issued a citation or arrested and face criminal charges. (See MISDEMEANORS section above)
- When Can An Officer Search My Belongings Or Me?
Before or during an arrest the police may want to search your person, apartment or car. There are two basic rules to remember in this situation: 1) Never give the police consent to search your person, apartment, house, or vehicle either verbally, in writing, or by your actions, and 2) Never physically resist the police or physically try to stop them from searching. Simply state that they do not have your permission to search.
- Do I Have To Answer Police Questions?
If the police ask you to come to the station and talk to them, but you are not under arrest, you do not have to do so. If you say anything incriminating during this "voluntary cooperation" session it can be used against you. Since you are not in custody, the police have no obligation to remind you of your right to remain silent. This is not to suggest that you should be rude or lie to the police; simply tell them you do not want to talk to them without your attorney present. You also do not have to agree to have your photograph taken or submit to fingerprinting if you are not under arrest.
Second Stage: Arraignment
- What Is An Arraignment?
The arraignment is the first time you go to court in relation to your case. If you have hired an attorney, your attorney may go with you to court. The hearing proceeds in this order:
- All the information concerning your arraignment is noted on your citation, including time, date, and courtroom number. If you do not have a citation call the city (441-7283) or county (441-7321) attorney´s office to get this information.
- Sit down in the courtroom and wait for your name to be called. When your name is called go to the front of the courtroom and stand before the judge.
- The prosecutor will read aloud the charge pending against you. The judge will ask if you understand the possible penalties and if you are prepared to enter a plea at this time.
- You should not plead "guilty" or "no contest" unless you have talked to an attorney. Once you plead "guilty" or "no contest", you cannot change your mind later and ask for a trial. If you plead guilty or no contest, the judge will ask the prosecutor for a factual basis. The prosecutor will read facts supporting the charge from the police report. The judge will ask if you have anything to say about the facts. You may give your version. If the judge accepts the guilty or no contest plea, he or she will usually proceed immediately to sentencing unless the judge wants to order a pre-sentence investigation, in which case a sentencing date will be set about five or six weeks away. If the judge proceeds to sentencing, you will have a chance to speak on your own behalf before the sentence is given.
- If you plead not guilty, the judge will set a date for trial about five weeks away. You have three basic options in terms of obtaining an attorney. The judge will ask if you plan to have an attorney represent you at the trial. If you have hired a private attorney or you intend to hire one, give this information to the judge. If you are charged with a misdemeanor in Lancaster County, a Student Legal Services attorney might represent you. If you are charged with a crime that carries a possible jail sentence and you can´t afford to hire an attorney, you may ask the court to appoint an attorney from the Public Defender´s Office to represent you. Always plead "not guilty" at arraignment unless you have discussed your case with an attorney and you are sure you do not want to contest the charge. You can change your plea to guilty later in the proceedings if you want to and the judge will not penalize you for pleading not guilty at arraignment.
Third Stage: Pretrial Motions, Plea Bargaining, Pretrail Diversion
- My Attorney Filed A Motion To Suppress In My Case: What Does That Mean?
If you are represented by an attorney he or she will discuss the progress of your case and keep you informed of hearings you must attend or decisions you must make regarding your case.
Sometimes your attorney will file pretrial motions such as a motion to suppress evidence. The judge will hold a separate hearing on the motion prior to your trial and will render a decision on the particular issue raised in the motion. Your attorney should explain to you the purpose of the motion and the significance of the outcome.
- What Is Plea Bargaining?
Occasionally during the period between arraignment and trial, your attorney will persuade the prosecutor to reduce the charge pending against you to a lesser charge with a less severe penalty in return for your plea of guilty or no contest to the amended charge. Sometimes the prosecutor will dismiss the charge altogether if you agree to pay the court costs.
If you are not represented by an attorney you may be tempted to discuss your case with the prosecutor to try to persuade him or her to reduce or dismiss the charge. This is usually a mistake. Anything you say to the prosecutor regarding your case that might be incriminating can be used against you later in court.
- What Is Pretrial Diversion?
Lancaster County has a pretrial diversion program available to first time offenders charged with certain types of crimes (NOT DUI). Under the Pretrial Diversion Program, the prosecutor dismisses your case if you 1) are accepted into the Pretrial Diversion Program and 2) admit to the pretrial screening officer that you believe there is a reasonable likelihood you would be convicted of the charge if the case went to trial. In Lancaster County, you may be accepted into the program after an interview concerning your background and criminal record check. A fee is charged and participants are required to complete a minimum of 24 hours of volunteer work. In addition, participants must not be convicted of any offense during the pretrial diversion period. If a participant does not comply with the terms of pretrial diversion, the charge can be refiled.
Fourth Stage: Trial
- What Happens At Trial? What Is My Role?
If your attorney and the prosecutor have not been able to work out a satisfactory resolution to your case prior to trial, the judge or jury will decide your innocence or guilt of the charge pending against you. The prosecutor must carry the burden of proving your guilt beyond a reasonable doubt.
You and your attorney will decide if you should testify on your own behalf and make other strategic decisions together.
- Can I Represent Myself?
Yes you can, but there is an old saying in the legal profession that he who represents himself has a fool for a client. If you have considered the alternatives and still want to represent yourself, you need to learn how a misdemeanor is prosecuted. It is the prosecutor´s job to prove beyond a reasonable doubt that you committed the crime.
The prosecutor will present evidence first. This usually involves calling as a witness the police officer who gave you the citation. After the officer testifies you will have an opportunity to ask him or her questions. The prosecutor sometimes calls additional witnesses.
After the prosecutor has finished putting on evidence, it is your turn. You (the defendant) may take the oath and testify for yourself. If you do so, the prosecutor can ask you questions after you testify. You may also call other witnesses who can help your case.
After you have finished presenting your evidence, the prosecutor has the option of calling rebuttal witnesses. The prosecutor and then the defendant will each have an opportunity to summarize their arguments to the judge before the trial is over.
Fifth Stage: Sentencing
- What Is A Pre-Sentence Investigation?
The judge often orders a pre-sentence investigation after the defendant has been found guilty or pleads guilty and requests probation. The purpose of the pre-sentence investigation is to look into the defendant´s background to see if he or she is likely to be a good candidate for probation. The pre-sentence investigation is conducted by the probation office. The defendant meets with a probation officer who interviews the defendant regarding past criminal offenses, educational and family history, employment record and use of alcohol and drugs. Sometimes tests are conducted to measure a defendant´s drug or alcohol use as in a case where the defendant is charged with Driving While Under the Influence of Alcohol (DUI). The probation office prepares a report on this information along with a recommendation to the court as to whether the defendant would be a good candidate for probation. The judge studies this report prior to making a decision.
- Can I Speak To The Judge Before I´m Sentenced?
Yes. The right of allocution is the right of the defendant to speak on her own behalf in open court before the judge prior to the pronouncement of sentence. In addition to this right you may present evidence to the Court in order to persuade the court that probation or a lighter sentence is appropriate in your case. Evidence may consist of witnesses who are familiar with the defendant´s character and can give positive information regarding her potential for a successful probation.
- What Is Probation?
If the defendant is granted probation certain "probation conditions" will be ordered by the court and the defendant must abide by these conditions or risk jail. The court may order any condition it deems appropriate that is reasonably related to the defendant´s rehabilitation. If the defendant/probationer is convicted of violating probation conditions she can be resentenced on the original charge, which may include jail.
- What If I´m Sentenced To Jail?
If you are facing a jail sentence you should be represented by an attorney. If you cannot avoid a jail sentence the court might grant you work and school release. In Lancaster County, if you receive a jail sentence of less than 30 days, the judge may grant you house arrest.
- What Is Work And School Release?
Work/School release allows the defendant to go to work or classes but return to the jail immediately afterward. If you expect jail time you need to obtain a Work/School Release form and fill it out completely. You will need the signatures of your boss and your academic advisor.
- What is "House Arrest"?
House arrest is when the judge allows you to serve a jail sentence at home. You must wear a monitoring anklet and are allowed to leave your home only for work and school. You will be charged a fee for house arrest in addition to any other fines and costs the court orders you to pay.
- What Kind Of Penalties Will I Be Facing? (Misdemeanor Chart)
- What If I Can´t Pay My Fine?
If you cannot pay a fine ordered by the court on sentencing day you should ask if you may make special arrangements regarding payment. The Clerk´s office will present you with a time payment form at your request. You must have the fine and court costs paid by the date on the form or a bench warrant will be issued for your arrest. In some cases the judge may allow you to complete community service hours in lieu of the fine at the rate of one hour of community service per $10 of your fine.
- How Will This Conviction Affect Me?
A conviction is a permanent part of your criminal record and may affect job or professional school opportunities. The effect it will have on your future depends on the nature of the crime and the type of job you are seeking. Completion of the Pretrial Diversion Program will keep a conviction off your record but it will not erase the record of your arrest or citation.
- Can I Get My Criminal Record Expunged Or Erased?
Nebraska has a law, Nebraska Revised Statute, §29-2264, which allows a person to petition the court for an order setting aside, or nullifying, the conviction. Forms and instructions for filing a petition to have your conviction set aside can be found in the self-help section of the Nebraska Judicial branch web site at http://court.nol.org/self-help/set-aside-crim-convict.html.
The value of expunging a criminal record has been called into question in recent years because of the advances in information technology which allow almost anyone access to all types of personal history. For a discussion of this topic go to: http://www.npr.org/templates/story/story.php?storyId=114276194.
Nebraska Revised Statute §29–3523 is another Nebraska law which describes circumstances in which a criminal arrest (as opposed to a conviction) record can be corrected by petitioning the district court in the county where the person was arrested.
If You are the Victim of a Crime
Students who become victims of crimes need to know how the criminal justice system will respond to what has happened to them.
- How Can I Be Certain That Charges Will Be Filed Against The Perpetrator?
Report the incident to the police as soon as possible. The sooner the police are involved the better chance they have of apprehending the perpetrator and collecting evidence and names of potential witnesses. After the police have gathered information and arrested or cited suspects a report of the case is developed and forwarded to the City or County Attorney´s office.
Talk to the prosecutor assigned to your case and request that charges be filed if they have not been filed already. The attorneys who work in the City or County Attorney´s office are called prosecutors. The prosecutor handling the case must decide 1) if charges should be filed, 2) which charges should be filed, and 3) against whom. The prosecutor is also responsible for representing the people of the state in proving in court that the person charged with the crime did in fact commit the crime beyond a reasonable doubt. If you are a victim of a crime you will be working with the prosecutor assigned to your case. The prosecutor will explain what will be asked of you during the proceedings, including pretrial depositions and trial testimony.
- Will I Have To Testify?
If you want the perpetrator to be convicted you will probably have to testify. However, victims are not required to testify in court in every case. Sometimes cases are settled prior to trial in the plea bargaining process. The County Attorney may decide to allow the defendant to plead guilty to a reduced charge in which case there will not be a trial. If you are asked to testify the County Attorney should meet with you prior to trial and help you prepare your testimony.
- Will I Be Reimbursed For Property Damage And Medical Costs?
If your property has been damaged or destroyed as a result of the crime or you have suffered injury requiring medical attention, the perpetrator of the crime may be required to pay restitution and reimburse you. You should discuss the possibility of restitution with the prosecutor handling your case. Sometimes perpetrators will be required to pay restitution to the victim as part of probation requirements. If the perpetrator is sentenced to jail, restitution may not be part of the sentence ordered by the court.
- Can I File A Civil Lawsuit Against The Perpetrator?
In some cases the restitution provided to the victim through the criminal justice system is inadequate or nonexistent. You may choose to file a lawsuit in civil court against the perpetrator of the crime to win compensation for any damages, including pain and suffering. This lawsuit is separate from the prosecution in criminal court. For example, in a situation where the victim is sexually assaulted, two legal proceedings can take place. One legal proceeding is the criminal prosecution of the alleged perpetrator. The second legal proceeding is a civil suit filed by the victim against the alleged perpetrator for money damages. The victim could sue under an intentional tort theory for medical expenses, pain and suffering, etc. You will need to have a lawyer represent you in the civil lawsuit unless you elect to file your case in Small Claims Court.
- What Are My Rights As A Victim?
Nebraska has a statutory Bill of Rights for Victims in section 81-1848 of the Nebraska Revised Statutes. Please see the chart below.
- Where Can I Go For Counseling And More Information?
Various community organizations have attempted to establish sources of help for victims. Some sources attempt to help victims cope with the psychological and emotional injury suffered as a result of the crime while other organizations offer monetary compensation.
UNL Victim Advocate–Women´s Center, 340 Nebraska Union. This on-campus service provides students with crisis intervention, counseling and referral in situations involving sexual assault, relationship violence and stalking. (402) 472-0203
Counseling and Psychological Services–213 University Health Center. Professional counseling available to currently enrolled students. (402) 472-7450 or 472-3461
Crime Victims Reparations Committee–P.O. Box 94946, Lincoln, NE 68509-4946. Victims, dependents of victims, or parents of victims are eligible. Must have suffered bodily injury from a crime. Committee awards up to $10,000 to cover medical and other expenses not recoverable by insurance or other sources. (402) 471-2828
Victim Witness Unit – Lincoln Police Department. Refers victims to various sources of help; provides information on the legal process. Volunteers accompany victims to court. (402) 441-7181
Rape/Spouse Abuse Hotline – Gives Lincoln area victims information regarding help and shelter; provides assistance in reporting abuse. (402) 475-7273
Nebraska Domestic Violence Crisis and Support Resource: http://www.aardvarc.org/dv/states/nedv.shtml
Child Protective Services–Provides help in cases of child abuse. (402) 471-7000 In Omaha: YWCA Women Against Violence–Helps in cases of child/ spouse abuse, domestic violence, sexual assault, and child sexual assault. (402) 345-7273
Statewide Abuse Hotline (800) 652-1999 (toll free)
Party Related Legal Issues
- I'm Having A Party: How Can I Avoid Legal Problems?
Some basic tips are:
- Control who enters your apartment and know who is attending your party.
- Control the noise level of people and music both inside and outside your apartment.
- Do not serve alcohol to persons under 21 years of age; have non–alcoholic beverages available.
- Do not charge money at the door or for keg cups.
- Show respect and consideration to your neighbors: Do not allow guests to litter on the lawn or block driveways.
- If police knock on your door, step outside to talk to them, closing the door behind you.
- Cooperate with police in terminating the party if requested BUT do not consent to a search of your house or person.
For more information on your legal rights in relation to law enforcement, check out www.FlexYourRights.org.
Also see Misdemeanor Chart above ("What Kind Of Penalties Will I Be Facing?") for penalties on party offenses such as MIP, Maintaining A Disorderly House, or Procuring Alcohol For A Minor.
- Control who enters your apartment and know who is attending your party.
DUI - Driving While Under The Influence Of Alcohol Or Drugs
- What Is DUI? What Is DWI?
Under Nebraska law, you can be convicted of Driving While Under the Influence of Alcohol Or Of Any Drug (Nebraska Revised Statute §60-6,196) if you were operating a motor vehicle or exercising physical control over one while under the influence of alcohol or any drug or when you score a .08 or more on a chemical test of your blood, breath, or urine. In Nebraska a DWI and DUI are simply different acronyms for the same offense.
- I Was Ticketed For A DUI And The Police Officer Took My Driver's License. What Should I Do?
When you are ticketed for a DUI in Nebraska, you are subject to TWO SEPARATE processes:
-- Administrative License Revocation (ALR) by the Department of Motor Vehicles (DMV); and
- Contact an attorney
- Within 10 days of your arrest/ticket, either file the petition for the ALR hearing OR
Apply for the Ignition Interlock Permit from the DMV.
- Go to your arraignment (the court date listed on your ticket) with your attorney.
- The first thing you should do is contact an attorney.
If you are a fee-paying UNL student and your ticket was issued to you in Lancaster County, you are entitled to free legal representation sponsored by your ASUN student government. CALL Student Legal Services (SLS) at (402) 472-3350 for an appointment.
If you are a fee-paying UNL student and your ticket was issued somewhere other than Lancaster County, you can call SLS for an appointment to ask questions, but we cannot represent you in court.
If you are not a UNL student, or your ticket is not in Lancaster County, you should contact a private attorney to represent you. If you cannot afford an attorney, you can ask for a Public Defender at your arraignment.
- The ALR Process (What To Do About Driving To Work and School)
When you are ticketed for a DUI, the police officer will take your driver’s license and send it to the DMV. The officer will issue you a fifteen-day temporary license for the fifteen days following your arrest for DUI. The officer will also give you a Petition for an ALR hearing and an Application for an Ignition Interlock Permit (IIP).
This is where Nebraska's new law give you options. You must make a decision to:
- Do nothing;
- File the Petition requesting an ALR hearing; or
- Apply for an ignition interlock permit.
- If you do nothing, your privilege to drive will be revoked for:
- 180 days for a first ALR if you failed the chemical test (i.e., tested over .08)
- 1 year for a Refusal to take the chemical test for a first ALR
- 1 year for a second and all subsequent ALRs
- If, within ten days of your arrest/ticket, you file the Petition requesting an ALR hearing and you lose that hearing, your privilege to drive will be revoked for:
- 180 days for a first ALR if you failed the chemical test (i.e., tested over .08)
- 1 year for a Refusal to take the chemical test for a first ALR
- 1 year for a second and all subsequent ALRs
- If you apply for the Ignition Interlock Permit (IIP), you waive your right to the ALR hearing, but you are eligible to drive your vehicle with the ignition interlock installed immediately following the end of your 15- day temporary license.
- What Is An ALR Hearing? (ALR = Administrative License Revocation)
It is a hearing conducted by telephone conference call to determine if your driver’s license should be administratively revoked by the DMV (Department of Motor Vehicles). Usually present on the telephone conference call are: a DMV hearing officer, the arresting police officer and you, the ticketed driver. The arresting officer explains why he stopped the car and either submits a copy of the temporary license or, in the case of a Refusal charge, explains why he determined you refused the test.
If you want an ALR hearing you must file the petition within ten days of your arrest. If you lose the hearing, you cannot drive until a judge orders you to apply for the IIP. This will take place at your sentencing hearing, after you are convicted in court. Most likely, the only way you will win the ALR hearing is if the arresting officer fails to participate in the telephone conference call.
If your breath test result on the Intoxilyzer machine is .088 or below, you SHOULD file the petition requesting the ALR hearing.
It is advisable to speak with an attorney before doing anything.
- What Will Happen At My First Court Date (The One Written On My Citation)?
The citation for DUI states the date and time that you are to appear in court for arraignment. If you have not yet obtained legal advice, plead “not guilty” at the arraignment. The not guilty plea can always be changed later if, after talking to an attorney, you decide it is in your best interest to enter a guilty plea. At the arraignment the judge or prosecutor will call your name, tell you what the charges and penalties are and ask if you understand them and ask how you wish to plead. Without the advice or representation of an attorney always plead “not guilty.” You will be escorted to the Clerk’s office where you will be given a sheet of paper with your case identification number, trial date, time and courtroom number. You should bring this paper to your meeting with your attorney.
- Do I Need An Attorney?
You do not need an attorney at your arraignment, but the sooner you speak with and hire an attorney the better. An attorney can obtain copies of the police report, talk to witnesses, and investigate the facts of the case to determine if there are any defenses to the DUI charge. SLS represents UNL students on DUI in Lancaster County and there are no attorney fees. Representation is provided as a service of ASUN through your student fees. A private attorney may charge anywhere from $500 to $1,000, or more.
- What Can Happen To Me If I Am Convicted of DUI? (ALR/DUI Chart)
- Why Was I Stopped?
The police officer must have a "reasonable suspicion based on articulable facts" that a law violation is occurring in order to stop your car. Any law violation is sufficient. For example, it is legal for a police officer to stop a car that crosses the centerline of the highway or that has a tail light out. An officer can even stop a car that is weaving within the lane lines or the driver who fails to signal a turn or a lane change. However, if the officer makes a random stop of a driver and there is no articulable reason for doing so, it is possible that any evidence collected may later be kept out of court, including breath tests and the officer’s observations of the driver.
- Do I Have To Perform The Field Sobriety Tests?
In Nebraska it is not against the law to refuse to perform field sobriety tests. SLS suggests that you politely but firmly refuse to do the field sobriety tests.
The officer uses field sobriety tests to establish probable cause to arrest you for DUI. You may be asked to follow a stimulus with your eyes, walk a straight line heel to toe, recite the alphabet, or hold one leg six inches in the air while counting to 30. Sound easy? Most drivers fail these tests according to the police officer’s judgment. Some people do not do well on balance and coordination tests whether or not they have been drinking. Also, the police officer’s evaluation of the driver’s performance is often much worse than the driver’s evaluation. In addition, the field sobriety tests give the State one more method of convicting you of DUI. It is better not to do them.
- Do I Have To Do The Preliminary Breath Test (PBT)?
If you show signs of intoxication after being pulled over by the police, the officer may ask you to take a "pretest" or preliminary breath test. The purpose of this portable breath test is to determine if you should be taken to the station for a more sophisticated breath test. In other words, the PBT is used to establish probable cause to arrest you. Refusal to submit to a preliminary breath test is a Class V misdemeanor carrying a $100 fine and gives the officer probable cause to arrest you to be tested for DUI.
- What Happens If I Fail The Preliminary Breath Test (PBT)?
If you test over .08 on the preliminary breath test, then the officer has established probable cause to arrest you for DUI. Most likely you will then be transported to Cornhusker Place Detoxification Center where the arresting officer will direct you to take a chemical test of your blood, breath, or urine. The officer is allowed to choose the test. A breath test on the Intoxilyzer machine is most commonly used in Lancaster County and throughout Nebraska.
- Can I Refuse To Take The Intoxilyzer Test?
If you refuse to take the Intoxilyzer test at Detox you will be charged with the crime of Refusal To Take A Chemical Test (Refusal) in addition to DUI. Refusal, first offense, carries a penalty of 7-60 days in jail, $400-$500 fine and a one year driver’s license revocation. After 90 days of no driving allowed, application for an ignition interlock permit (IIP) may be made.
- What Happens If I Fail The Breath Test At Cornhusker Place Detox?
If your test result is .08 or more, you will be issued a citation for DUI, your driver’s license will be taken and you will be issued a 15-day temporary license. You then face a choice.
- If you want an ALR hearing, you must file the Petition for the hearing within ten days of your arrest. If you lose the ALR hearing, which happens frequently, you cannot drive for six months, or until a judge, at your sentencing hearing, orders you to apply for the ignition interlock permit (IIP).
- You can waive the ALR hearing by immediately applying for an IIP from the Department of Motor Vehicles (DMV). The permit will allow you to drive immediately following the expiration of the 15-day temporary license, for the duration of the six-month ALR revocation. See ALR/DUI Chart for information regarding where the IIP allows you to drive.
- If you do nothing (do not file the ALR petition and do not apply for the IIP permit), your driver’s license will be revoked for six months and you will not be allowed to drive until a judge, at the sentencing hearing, orders you to apply for the ignition interlock permit (IIP).
- What Happens If I Refuse To Take the Intoxilyzer Test at Cornhusker Place Detox?
If you refuse to take the breath test on the Intoxilyzer machine, you will be issued a citation for DUI AND Refusal to Submit to Test, your driver’s license will be taken and you will be issued a 15-day temporary license.
- If you want an ALR hearing, you must file the Petition for the hearing within ten days of your arrest. If you lose the ALR hearing, which happens frequently, you cannot drive for ONE YEAR, or until a judge, at the sentencing hearing, orders you to apply for the ignition interlock permit (IIP).
- If you waive the ALR hearing by not filing the petition, AFTER 90 DAYS of no driving, you may apply to the DMV for an IIP for the balance of the one-year revocation.
- Will It Help My Case If I Am Cooperative And Answer The Officer´s Questions?
DO NOT waive your rights and DO NOT answer questions. After you have failed the breath test and seen the disappointing digits flash on the machine the police usually ask you to waive the right to remain silent and answer a few questions. If you waive your rights and answer questions you will probably incriminate yourself. Standard questions include: "What have you been drinking and how much? Are you under the influence of an alcoholic beverage now?" Anything you say can be used against you in court later. You should politely say that you do not wish to answer any questions at this time.
- I Have Had Friends Whose DUI Was Reduced To A Reckless Driving. Can That Happen to Me?
Sometimes a DUI charge is reduced to a lesser offense such as reckless driving which carries a milder penalty of $100 fine plus court costs and 5 points assessed against your driver’s license. This usually happens in the time period between arraignment and trial when the prosecutor and defense attorney discuss the case. Since most prosecutors agree that there is a margin of error on the Intoxilyzer breath tests, a DUI case with a low breath test between .08 and .088 has a chance of being amended to reckless driving.
A DUI charge may also be amended if the prosecutor has a problem proving the case for some reason, such as, the breath test was improperly administered. Part of the defense attorney’s job is to carefully scrutinize the prosecutor’s case to discover potential problems and capitalize on them. If your charge is reduced, you should thank your lucky stars and learn from the experience.
- Will I Have A Jury Trial?
Everyone charged with DUI is entitled to a trial before a judge to determine if you are guilty beyond a reasonable doubt. You are entitled to a jury trial if the case is charged under state law as opposed to a city ordinance, or when you are stopped outside city limits by a state trooper or sheriff, or when facing a second offense with a BAC of .15 and above or for a third offense or greater. Some cases are best tried before a judge and some before a jury. This is a strategy decision that you and your attorney make together.
If you decide to plead guilty you must waive the right to a trial including the right to call witnesses, to cross- examine the state’s witnesses, to testify on your own behalf and to require the state to prove you guilty beyond a reasonable doubt. In Lancaster County these rights must be waived in writing and in the open courtroom before the judge will accept your guilty plea.
If you win at trial, count yourself in the very lucky minority. If you lose, you must decide whether to request probation or to take the straight statutory sentence. [See ALR/DUI Chart for penalties.]
- What Does Being On Probation Mean?
If probation is granted, the conditions of probation the judge chooses to impose become effective immediately. If you wish to accept the conditions of probation being offered you must sign the probation order. The term of probation on a first offense is usually six months to one year. Typical conditions include, but are not limited to, the following:
- Abstain from alcohol. Random urine tests may be requested by the Probation Officer to confirm abstinence.
- Completion of an alcohol education or treatment program.
- Monthly contacts with probation officer.
- No law violations.
- Attend a Victim Impact Panel (V.I.P.) sponsored by M.A.D.D.
- Driver’s license revocation of 60 days on a first offense if your BAC was below .15. If above .15, then your license revocation will be for one year and you will also be sentenced to two days in jail. The judge will give credit for the period during which you have been revoked, including the time you have been using the Ignition Interlock Permit (IIP).
- A $500 fine (first offense); and
- Several hundred dollars ($800 to $1,000 and up) in court and probation costs.
- Any violation of probation conditions will result in the state filing a motion to revoke your probation. The judge will then re-sentence you to a straight sentence (i.e., no probation) punishment under the DUI statute.
- Can I Appeal If I Lose In Court
If you lose in court (i.e., you are convicted), you have a right to appeal the conviction. The appeal must be filed within thirty days of the date you are sentenced.
- What Is The Ignition Interlock?
The ignition interlock device (IID) is a machine installed in your car that prevents the car from starting if you have had any alcohol to drink. There are two ways to make use of the IID. You can apply to the DMV for a permit, or you can be required by the judge at your sentencing hearing to apply for an ignition interlock permit and have an ignition interlock device installed on any motor vehicle you operate during the revocation period. Either way, you must pay the DMV $45 for the Ignition Interlock Permit (IIP) and you must pay the interlock company for the cost of installation and monitoring. Refer to ignition interlock companies’ websites for details on costs.
There are at least two Nebraska companies that provide Interlock installation and service:
Affordable Ignition Interlock
1 (800) 369-3661
1 (866) 747-8278
- What Is An Alcohol Evaluation?
In Lancaster County Court a judge may require a complete alcohol evaluation with a certified counselor before sentencing you to probation. An alcohol evaluation involves a session with a counselor who will administer tests and interview you regarding a wide range of personal matters. The counselor will make a recommendation for you to complete a 15-hour alcohol education class, an out-patient treatment program, an intensive outpatient treatment program or a residential care treatment program.
- If I Go To Jail, Will I Be Able To Attend Classes And Work?
If you decline probation on a DUI, first offense below .15, the minimum you will receive is seven days in jail. The maximum allowed is 60 days. You will most likely be allowed to apply for and serve the jail time under House Arrest. Most Lancaster County judges, on sentences for DUI involving 30 days of jail or less, will allow you to serve the jail time under House Arrest. House Arrest involves wearing an ankle bracelet to monitor your movements. Under House Arrest you will only be allowed to leave your house for work and school.
For jail sentences in excess of 30 days, work and school release may be granted, allowing you to leave the Work Release Center only for those two purposes.
- What Is This Going To Cost Me?
As monetarily expensive as a DUI can be, the real cost is in the fact that you must report this misdemeanor conviction on job applications and professional school applications into the foreseeable future. It is unpleasant. It is an experience to avoid. DUI is painful to the pocketbook. Some of the monetary costs you are likely to encounter on a first offense are listed in the chart below:
Attorney´s Fees $750-$3,000 (SLS Is prepaid through student fees, so there is no charge.) Fines (first offense) $500 Car insurance will skyrocket Breath Test at arrest $100 Alcohol Evaluation $75-$150 Alcohol Education Program $100-$150 Alcohol Treatment Program $360-$10,000+ Urine testing during probation $65 Permit for Ignition Interlock $45 Interlock system on car $60-$75 per month Probation charges $30 application fee & $25 per month
- What Happens If I Drive While My License Is Revoked?
Driving while your license is revoked will result in conviction of a Class III misdemeanor for Driving Under Suspension (DUS). The penalties for DUS include loss of your license for one year, up to a $500 fine and up to three months in jail, or all three of these things. It is common for judges to give drivers jail time for these types of offenses.
- What Happens If I Drive Without the Interlock?
If you have applied to the DMV for an ignition interlock permit (IIP) or been ordered by a judge to install an Ignition Interlock Device and you drive without the device, you will be charged with a Class IV FELONY! Maximum punishment for a conviction is five years in prison or a $10,000 fine, or both. This is the same charge and punishment if you tamper with or circumvent the IID.
- What Is An .02 Violation?
If you are under 21 years of age and operating a motor vehicle while having a BAC of between .02 and .08, you are violating Nebraska’s .02 law (sometimes called "zero tolerance"). The penalty for a .02 infraction is 30 days license impoundment and a $100 fine plus court costs. This conviction remains on your driving record at the Department of Motor Vehicles for three months only, so long as you have no moving traffic violations during that time. However, the conviction is NEVER erased from the police record and will, therefore, be available to future employers doing background checks.