"Professional Peacemakers"
DANIEL W. WILLEMS
Attorney & Counselor at Law, Mediator, Arbitrator
LEARN MORE ABOUT
FAMILY LAW/
DIVORCE
Family Law also includes:
Adoptions
Juvenile Court
Paternity
Child Custody and Support with Unmarried Parents
OVERVIEW OF IOWA DIVORCE LAW
Note: This overview is not meant to serve as legal advice. It only provides a general description of the law and does not go into details which might affect your case. You should seek the advice of an attorney concerning your specific situation. Use this overview to prompt questions when visiting with your attorney.
OUTLINE:
1) Divorces, Annulments and Separation
2) Who is entitled to a divorce?
a) Married? Common law marriages
b) No Fault Divorce
3) Procedure (Steps in Process)
a) Petition and Opening Orders
b) Mediation
c) Temporary Allowances
d) Pre-trial conference
e) Trial
4) Counseling
5) Children
a) Court appointed attorney or advocate for children
b) Paternity
e) Visitation
i) Support payments
ii) Medical Insurance and Expenses
iii) Post Secondary-Education
g) Transportation
h) Life Insurance and
6) Alimony
a) Contempt of Court
b) Modifications
TEXT:
1) Divorces, Annulments and Separation: A “divorce” is another word for “dissolution of marriage.” The rights, privileges, and responsibilities of marriage is dissolved by this proceeding and replaced by a decree. An “annulment” results in a decree which says the marriage was never valid. Do not confuse an annulment granted in civil courts with annulments granted by some churches which only affect one’s status within the church. The reasons for an annulment are limited. The most common would be an illegal marriage – where someone was already married to someone else. A legal separation is where the parties continue to remain married. Whether one is asking for a divorce, annulment or legal separation, the court can decide things such as custody, spousal support, child support, and property and debt division.
2) Who is entitled to a divorce? Generally, one of the persons involved in a divorce filed in Iowa must be a resident of Iowa. They must have been married.
a. Common law marriages: If a marriage license was not obtained, and man and woman can still be considered to be married by common law. Three things must be proven:
i. Both parties intended to have a marriage relationship;
ii. At time of continuous cohabitation, though no length of time is required. However, the simple act of living together is not enough.
iii. Public declarations or “holding out” the relationship as a marriage. There is no formula to prove the parties represented themselves as husband and wife. Some examples are:
1. introducing one another as “my husband” or “my wife”
2. exchanging wedding rings
3. attending social events as “Mr. and Mrs.”
4. insurance policies designating the other as a spouse
5. joint checking accounts or joint ownership of property, and
6. marital status on application forms.
b. No Fault Divorce: A divorce is granted because one of the marriage partners claims there has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.
3) Procedure (Steps in Process) Parties to a divorce proceeding are required to wait 90 days after a proof of delivery of a Petition is filed with the clerk of court before a final order may be obtained. For good cause a judge can shorten the waiting period. If a complete settlement occurs the parties may move on to a final decree without intervening steps.
a. Petition and Opening Orders: Prior to beginning a divorce, a consultation with an attorney may be necessary to discuss how best to separate, handle care of children, divide assets and debt. A divorce begins with the filing of a Petition. When the Petition is filed court orders concerning preserving property, mediation, classes, and pretrial conferences may issue. The Petition must be delivered to the opposing spouse and proof filed with the clerk of court. The opposing spouse files an Answer.
b. Mediation: Before a judge decides issues between the spouses, they may have to mediate. For good reasons a judge may waive this requirement. The parties are encouraged to make use of mediators at any point in the process. For more on services related to family law mediation click here.
c. Temporary Allowances: Divorce trials may take a while. Crucial issues such as child support, responsibility for the physical care of children, spousal support, and an award of attorney fees can be decided by a temporary order which is later replaced with a final order.
d. Discovery: After the Petition and before the final trial the parties may gather information from each other and from 3rd parties which may be helpful to their case. The processes for exchange of information include: court ordered disclosure of certain information, interrogatories (formal questions answered under oath), request for production of documents, subpoenas to acquire testimony or documents from third parties, depositions (recorded sworn testimony), court ordered home studies, and formal examination or inspections of a site.
e. Trial setting conference: Each judicial district creates its own rules concerning setting a case for trial. Generally, the court administrator contacts the attorneys or non-represented party and selects a trial date. In the 6th Judicial District an order follows which requires the parties to share information and to decide which issues must be tried to a judge and which are settled.
f. Trial: Trials in divorce cases are to a judge. There is no jury. The spouse who filed the divorce generally goes first and presents evidence. The opposing spouse tests the evidence following the presentation by questions called “cross examination.” Then the opposing spouse presents his/her evidence and it is tested by the first spouse’s questions. Other witnesses can give testimony.
4) Counseling: Either party may ask the Court to order the other to attend counseling in the hope of preserving the marriage. This is generally done shortly after the Petition is filed and before the trial.
a. Children’s attorney or advocate: At the request of one or both spouses, the court may order an attorney or advocate be appointed for the children. The cost of this person may be taxed as court cost to be paid by the parties. A attorney or advocate is often recommended where the parents express hostility toward each other, or where a parent is involving the children in the divorce in a harmful way, or where the child has special needs or interests adverse to the parents.
b. Paternity: Children born or conceived during the marriage are presumed to be the biological children of the husband. Either party may raise the issue of paternity and prove otherwise. Proving a man is not the biological father of a child does not necessarily sever all parental rights and responsibilities.
c. Legal Custody: The terminology used in the Iowa Code can be confusing because the term “custody” does not have the same meaning as understood by most people. The term only refers to the right to have a continuing legal relationship of a parent to a child. Some examples of rights preserved include: 1) discipline and instruction of a child while the child is with the parent, 2) access to school and medical records, 3) decisions about child’s legal status, and 4) decisions about a child’s medical care, education, activities, and religious education.
i. Options: The court can award one parent “sole custody” or both parents “joint custody.” The law presumes the parents will have “joint legal custody” unless certain unique facts are proven. Generally if a parent is a serious threat to a child’s wellbeing, sole custody may be awarded.
ii. Factors which favor a determine a sole custody include, but not limited to:
1. Involving children in immoral or criminal behavior;
2. Mental illness which threatens a child’s safety or welfare;
3. A history of domestic violence or child abuse or neglect;
4. A parent’s substance abuse.
5. Joint custody did not work well.
d. Physical Care: “Physical care” means the right and responsibility to maintain a home for the minor child and to provide for the routine care of the child. All decisions are based upon what the judge believes to be the “best interests of the child.”
i. Options: The court can name one parent as the “primary” physical care provider. In which case the other spouse if often described as having visitation. The court can also award “joint physical care” where both parents share parenting time with the child, both provide homes and routine care and where neither parent has physical care rights superior to the other parent. This option usually requires a detailed parenting plan which assigns time with the child and financial obligations.
ii. Gender does not decide outcome
iii. Factors a court uses to decide between “primary” and “joint” physical care, include, but are not limited to:
1. Distance between the parents;
2. The ability of the parents to communicate and cooperate together as parenting issues arise;
3. A workable plan of joint care.
iv. Factors a court uses to decide which parent should be the “primary physical” care provider of the child(ren), include, but are not limited to:
1. Factors which affect a child’s physical, social and emotional safety and wellbeing;
2. A history of domestic violence and child abuse;
3. Parenting skills and motivation of the parents;
4. Child’s maturity;
5. Child’s relationship to siblings, extended family and community.
v. Child’s wishes: The judge may consider the preferences of a child who is mature. There is no magic age at which a child gets to choose the parent they will live with. The judge, not the child, makes the final decision.
e. Visitation: In ordering visitation a judge starts with the assumption that it is best for a child to meaningful, relationship-building contact with the visiting parent. The child’s maturity, parents’ schedule and distance between the parents are often significant factors which determine the type, frequency and length of visitation. In addition to visits in the home, visits by phone, e-mail, or web camera are possible. Where a parent is a potential threat to a child’s wellbeing, supervised visitation can be required.
f. Child Support: A parent who is designated as having visitation will have to pay child support to the other. In a joint physical care arrangement, the party with the greater income may have to pay child support to the other.
i. Support payments are determined by a formula based upon each parties net income, the number of children, and which factors in things like health insurance payments, mandatory pensions, child care costs, support owed for a child(ren) of another relationship, un-reimbursed medical expenses and the number of nights the children are with the visiting parent.
ii. Medical Insurance and Expenses: Generally, the parent who pays child support will have to get health insurance to cover the children if it is available through an employer. The parent with primary care of the children may be required to pay the first $250.00 per child up to a total of $500.00 for deductible or co-pay. The remainder of uncovered medical expenses is split according to a formula the court will decide.
iii. Post Secondary-Education: Parents can be ordered to pay for a child’s college education to the extent the child does not have resources to pay. The obligation is limited by the parent’s ability to pay and should not exceed 1/3 of the cost of attending a state university in Iowa. There are additional conditions for a child to be entitled to the support.
iv. Length of time. Support payments continue until a child reaches age 18. The obligation includes support for a child who is between the ages of eighteen and nineteen years who is engaged full-time in completing high school graduation or equivalency requirements in a manner which is reasonably expected to result in completion of the requirements prior to the person reaching nineteen years of age; and may include support for a child of any age who is dependent because of physical or mental disability. Where a child is entitled to a post secondary education subsidy, support is paid to the school on behalf if the child is regularly attending a course of vocational-technical training either as a part of a regular school program or under special arrangements adapted to the individual person's needs; or is, in good faith, a full-time student in a college, university, or community college; or has been accepted for admission to a college, university, or community college and the next regular term has not yet begun.
v. COLA: A court can order a cost of living adjustment to reflect inflation.
vi. Life Insurance and funds in savings or trust can be set aside for the benefit of the children.
g. Transportation: A court can order any transportation arrangement which is reasonable, given the parties’ circumstances.
6) Alimony: Alimony is a payment from one party for the support of the other. The right to alimony is not controlled by gender. Alimony is awarded to accomplish one or more of three general purposes. Rehabilitative Alimony serves to support an economically dependent spouse through a limited period of education and retraining. Its objective is self-sufficiency. An award of Reimbursement Alimony is predicated upon economic sacrifices made by one spouse during the marriage that directly enhanced the future earning capacity of the other. Traditional Alimony is payable for life or for so long as a dependent spouse is incapable of self-support. The amount of alimony awarded and its duration will differ according to the purpose it is designed to serve. Factors the court considers in awarding alimony include:
a. The length of the marriage.
b. The age and physical and emotional health of the parties.
c. The distribution of property.
d. The educational level of each party at the time of marriage and at the time the action is commenced.
e. The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, responsibilities for children under either an award of custody or physical care, and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment.
f. The feasibility of the party seeking maintenance becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and the length of time necessary to achieve this goal.
g. The tax consequences to each party.
h. Any mutual agreement made by the parties concerning financial or service contributions by one party with the expectation of future reciprocation or compensation by the other party.
i. The provisions of an antenuptial agreement.
j. Other factors the court may determine to be relevant in an individual case.
7) Property and Debt Division: Property and debt which are obtained during the marriage are to be divided. With a few exceptions, property which is inherited or gifted to one of the parties and not co-mingled with other family assets will be set aside for that person and not divided. While judges generally aim to divide the net worth of the parties equally, a judge may give one party a greater net worth than the other if fairness requires it. Division of ownership of pensions, 401-Ks and other retirement investments will require a special court order called a Qualified Domestic Relations Order. Factors a judge will consider in dividing property include:
a. The length of the marriage.
b. The property brought to the marriage by each party.
c. The contribution of each party to the marriage, giving appropriate economic value to each party's contribution in homemaking and child care services.
d. The age and physical and emotional health of the parties.
e. The contribution by one party to the education, training or increased earning power of the other.
f. The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
g. The desirability of awarding the family home or the right to live in the family home for a reasonable period to the party having custody of the children, or if the parties have joint legal custody, to the party having physical care of the children.
h. The amount and duration of an order granting support payments to either party and whether the property division should be in lieu of such payments.
i. Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.
j. The tax consequences to each party.
k. Any written agreement made by the parties concerning property distribution.
l. The provisions of an antenuptial agreement.
m. Other factors the court may determine to be relevant in an individual case.
8) Attorney Fees and Court Costs: A judge can order one party to pay part or all of the other’s attorney fees and the costs of the case.
a. Contempt of Court: When the court orders someone to do something and they do not do it, the offended party can ask the court to hold the offender in “contempt of court.” In other words, a judge requires the offender to explain why they did not obey and if the offender does not have sufficient reason, the judge can punish them.
b. Modifications: Changes in the circumstance of the parties after a decree is entered can be grounds for modifying the decree. Parts of a divorce decree which concern child custody, physical care of children, visitation, child support, transportation, and spousal support (if previously awarded) can be modified. However, a party seeking a modification must show a substantial change in material circumstance related to the part of the order they want changed.
Copyright © 2006 Willems Law Office
Last modified: 05/30/06