(Re)Naming the Children

It is no surprise that couples, especially former couples, can fight about anything. It is therefore also no surprise that an emotional issue will create lots of friction. Such as what to name a child.

Clearly, this issue arises often in nonmarital custody cases, where the parents were never married. Sometimes Dad isn't present when the child is named. Sometimes Mom regrets the decision after the fact. It happens. But what some people don't expect is that it also happens in divorce cases. People that were married when the child was born sometimes argue about the child's name after the fact. And Iowa law allows it.

In re Marriage of Gulsvig, 498 N.W.2d 725 (Iowa 1993) paved the way. Without Husband's knowledge or consent, Wife put her maiden name on the child's birth certificate. During the divorce, Husband requested his surname for the child, but the trial court disagreed. Appeal followed. 

The Supreme Court  first ruled that the District Court had authority to make this determination. It fount this ability was implied in the other Dissolution of Marriage statutes, by giving the Court broad authority to determine the child's legal status. The Court thereafter engaged in a "best interests of the child" analysis, but did specifically state that the preference for the father's surname was outdated. 

Therefore, the Court can change the child's name as part of a divorce proceeding. The factors to be considered are not clearly outlined in that case. However, in a similar nonmarital  custody case, the factors are more neatly outlined.

In Montgomery v. Wells, 708 N.W.2d 704 (Iowa App. 2005), the parties had one child without being married, who was given Mother's last name. When a court proceeding was initiated to determine custody and visitation, Father also requested the child's last name be changed to his last name.

First, as in the Gulsvig case, the Court had to make sure it had the authority to mess with the child's last name. The Court essentially found that the nonmarital custody statute was intended to mirror the divorce statutes in conferring authority, and therefore the Court could determine the child's name. 

Then, the Court turned to the best interests of the child. The Court considered these twelve factors:

1. Convenience of the child to have the same or different surname from the custodial parent;
2. Identification of the child as part of a family unit;
3. Assurances from the mother that, should she marry, she will not change her surname;
4. Avoiding embarrassment, inconvenience, or confusion for the custodial parent or child;
5. The length of time the surname has been used;
6. Parental misconduct, like support or nonsupport, maintaining or failing to maintain contact with the child;
7. The amount of community respect associated with both names;
8. The positive or negative effect the name change may have on the bond between the child and either parent or parent's family;
9. Any delay in requesting or objecting to the name change;
10. The preference of the child, if sufficiently mature to have a meaningful preference;
11. Motivation of the parent seeking the change as an attempt to alienate the other parent; and 
12. Any other factor relevant to the best interests of the child.

So, in short, you can change or establish a different name for a minor child, either during a divorce or a nonmarital custody case. But the Court will look to these twelve factors to decide whether it is in the child's best interests.

Frozen Embryos and Divorce

A couple finds out they are not capable of conceiving a child, but in vitro fertilization is a possibility. So the couple freezes embryos with the intention of implanting them and having children. All of the implants are unsuccessful, though, and before a child can be born, one of the couple members files for divorce. What happens to the remaining frozen eggs?

This is the factual scenario behind In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003). At the time of the parties' divorce proceedings, there were seventeen frozen eggs in storage. The wife wanted to implant the eggs, while the husband did not. The husband did not want the eggs destroyed, but preferred to have them donated to a couple. The Court had to sort out the issues.

The wife initially sought an analysis under what was in the best interests of the eggs. However, the court did not find this to be appropriate. This was clearly not the scenario that the legislature had in mind when it drafted the custody provisions of Iowa Code chapter 598. In addition, the issues did not boil down to who would be a better parent, but who would have the power to determine what happened to the eggs. The statute on the best interests of the child was simply inadequate for these complex issues.

In addition, while the Court had to be involved in personal decisions surrounding marriage and children, the history showed a tendency to keep one step back from deciding issues for people. For instance, a breach of a promise to marry ended with damages, not forcing the two to marry. Further, adoptions had to have a 72 hour waiting period after birth before finalizing, to ensure the birth parents were comfortable in their decisions. Still, clearly the embryos had to be treated with more care and thought than other items of property.

The wife argued that the husband had contracted to become a parent with her, and therefore this agreement should be enforced. However, the Court disagreed; couples did not plan on divorcing when they married, and frequently made plans without this course of action in mind. Therefore, as with all divorce issues, the Court had to focus on present agreements and intentions, rather than those when the couple was intending to stay together. 

The Court finally decided on a course of "contemporaneous mutual consent." Therefore, there could be no transfer, release, disposition, or use of of the embryos without the signed authorization of both donors. If the parties could not agree, the status quo stayed in place, and the eggs remained frozen indefinitely. The costs to keep the eggs stored was born by the donor who opposed the destruction of the embryos. 

Many lessons could be drawn from the Court's decision, but my personal spin is that this was an attempt to force agreement between the parties. The Court declared that it could not, or would not, make this decision for the donors/parents. However, if one of the parents really did not want these embryos destroyed, he or she was going to pay for it. This is likely to get one or the other to either move off of his or her position, or come up with a creative solution to the problem.

Post-Marital Agreements

We have all heard of premarital agreements or, by their more common name, prenups. However, Iowa also recognizes post-marital agreements, or those executed by the spouses after they have married.

Premarital agreements are enforceable because they are executed in anticipation of marriage. Post-marital agreements do not have this benefit, and so the Court has a harder time taking them at face value and enforcing them without regard to the contents. So, while prenups are enforceable with only limited review of their contents, post-nups are examined more closely.

The Court is  required to consider the post-nup, Iowa Code 598.21(k), but this is only one factor to consider in division of property. In addition, the post-nup only becomes a final contract when approved by the Court. In re Marriage of Bries, 499 N.W.2d 319 (Iowa App. 1993); In re Marriage of Hansen, 465 N.W.2d 906 (Iowa App. 1990). The Court is only to reject a post-nup if it is unfair or contrary to the law. Matter of Ask, 551 N.W.2d 643 (Iowa 1996). This means that a post-nup that regulates behavior or punishes one spouse, and therefore runs afoul of Iowa's no-fault divorce status, will not be enforced. In re Marriage of Cooper, 769 N.W.2d 582 (Iowa 2009).

Simply put, a couple can make an agreement regarding division of assets and debts after the marriage has been completed. However, it is only binding upon review by the Court for fairness in the division, and whether it is contrary to the law, particularly Iowa's no-fault status. 

Same Sex Divorce: Jurisdiction

Agree or disagree, like it or not, same-sex marriage is a fact of life in Iowa these days. And with it comes the wrinkles with any marriage, including the possibility of divorce or dissolution of marriage. However, for this area of the law, there is another problem: Jurisdiction.

Jurisdiction is the legal concept that tells you where to file a case. So, if you marry in Iowa, live in Iowa, and still live in Iowa when you divorce, of course you file your divorce here. If you marry in Iowa, but relocate to another state for a year prior to your divorce, the other state would govern. 

But not all states recognize same-sex marriage. What happens if you marry in Iowa, relocate to a state where same-sex marriage is not recognized, and decide to get divorced? That state may not help you; according to their laws, you were not validly married to start with. Some states have denied divorce to such couples, leaving them in a marriage gray-area. Denied divorce, some same-sex couples 'wed-locked',By Elizabeth Landau, CNN. http://www.cnn.com/2012/06/07/living/same-sex-divorce-marriage/index.html

At least one jurisdiction is dealing with this problem. In Washington, D.C., a same-sex couple who gets married in the District can return there to complete a divorce, if the state that would have jurisdiction would not allow the divorce. Here is the text of the bill: http://dcclims1.dccouncil.us/images/00001/20111019165655.pdf

Iowa does not currently have a parallel statute. If a couple wants or needs a divorce in Iowa, jurisdiction would have to be established, which means at least one party needs to reside in Iowa. But perhaps this sort of statute would un-muddy the waters, at least somewhat, surrounding same-sex marriage. 

Step-Parents: Rights and Obligations

The step-parent is an odd relationship. It is not quite a parent, but more than a friend or distant relative. And honestly, it is a legally strange relationship, too. As far as the law is concerned, the step-parent is a stranger to the child.

The case outlining that a step-parent has no legal obligation to support the child is In re Marriage of Carney, 206 N.W.2d 107 (Iowa 1973). Wife had a child from a previous relationship, and while Husband had started the step-parent adoption, it had not been completed when the couple decided to divorce. Husband asserted he intended to always support the child.

However, the Court did not enter an Order requiring Husband to support the child because it did not believe it had the power to do so. The only individuals who could be forced to pay support were "parents," which was defined as a natural or adoptive parent only. Individuals standing "in loco parentis," or one who put him or herself in the position of a parent by assuming the obligations of parenthood, without the formalities of adoption, could not be forced to pay support. Without the formalities of adoption, Husband was entitled to disavow his voluntary responsibility toward the child. Further, because the child was not a product of the marriage, the Court did not have jurisdiction over the child in the divorce, meaning the rights and obligations toward the child were not issues the Court could consider. 

A later case attempted to provide some rights for a step-parent, but again failed. In Petition of Ash, 507 N.W.2d 400 (Iowa 1993), Husband tried to use what other states have called the "equitable parent doctrine." This had been used other places to allow those who had acted as parent for a number of years, even if the formality of adoption hadn't been completed, to stay involved in a step-child's life after divorce. The Iowa courts did not extend this doctrine, however.

The bottom line: if you are an ex-step-parent to a child, that is all you are. No visitation, no support. You are a legal stranger to the child. 

Inherited or Gifted Property

When a couple divorces, what will the court do with property that was inherited or given to one of the spouses? The easy answer is that the Iowa Code discusses this scenario. But  the hard answers come in applying the rule.

Iowa Code 598.21(6) provides that property inherited or gifted to either spouse before or during the marriage is not subject to division in the divorce. However, if refusing to divide the property will be inequitable to either the spouse or children of the marriage, it can be divided. This is where most of the friction occurs.

In re Marriage of Thomas, 319 N.W.2d 209 (Iowa 1982) lists factors to consider in determining whether an injustice would occur if the property was not divided. These factors included:

1. Contributions of the parties during the marriage toward the property, such as upkeep and improvements
2. Whether the other, non-receiving spouse had an independent, close relationship with the person making the gift or inheritance
3. Separate contributions of the parties to their economic welfare to preserve the property
4. The special needs of either party, and 
5. Any other facts that would make it unfair to have the property given to only one party.

Of course, applying these factors is not easy, either, and therefore predictions about how the Court will rule are difficult. Still, decisions the Court has made in cases involving these issues will help clear the waters somewhat.

First, the named owners of the property is not the deciding factor for whether the property should be divided. For instance, placing the property in joint tenancy with right of survivorship with the other spouse did not make it marital property. In re Marriage of Mayfield, 477 N.W.2d 859 (Iowa App. 1991). This was also true when the gifted money was placed in a trust for the benefit of both parties; this did not automatically convert the money from an inheritance to joint property. In re Marriage of Fall, 593 N.W.2d 164 (Iowa App. 1999). 

Second, mixing assets that are inherited or gifted with those that are purchased by the couple (and clearly marital property) does not convert all of the assets into marital property. It only makes the calculation of division more difficult. In re Marriage of Wertz, 492 N.W.2d 711 (Iowa App. 1996) involved using the wife's inherited money to pay down marital debt, and otherwise mixed the inherited money with marital funds. The Court looked at (1) the intent of the donor to make these funds a gift to wife alone, and (2) the circumstances surrounding the inheritance to determine that the funds were not to be treated as joint funds. Further, when the couple purchased stock in a closely held company in which husband also inherited some stocks, the wife was entitled to a division, albeit not an equal division, of those stocks. In that case, she received about one-third of the full value. In re Marriage of Muelhaupt, 439 N.W.2d 656 (Iowa 1989).

The most common way people seem to seek division of these assets is by arguing that they were increased in value through the efforts of the couple through the marriage. For instance, when husband's mother gave the husband funds to put a down payment on the marital home, and the parties did not do anything to increase the equity in the house after the gift, the house was a result of the gifted money and not an asset to be divided. In re Marriage of Cupples, 531 N.W.2d 656 (Iowa App. 1995). 

A similar result was reached where the gifted stock, although owned through most of the marriage, did not generate any income and was not valued highly. In re Marriage of Oler, 451 N.W.2d 9 (Iowa App. 1989). This was the result as well when the couple spent down a trust given to the husband by his mother, depleting the funds without contributing thereto. In re Marriage of Liebich, 547 N.W.2d 844 (Iowa App. 1994).  Finally, In re Marriage of Goodwin, 606 N.W.2d 315 (Iowa 2000) involved a life insurance policy payable to wife from a son of the marriage. The Court took into consideration that the son had left the policy in his mother's name. Further, neither husband nor wife had taken any action to change the funds to a joint asset rather than a gift. 

However, where the value is increased by the actions of the parties during the marriage, a different result is reached. A wife who helped retain and maintain a family farm inherited by the husband during the marriage may have a claim thereto upon divorce. In re Marriage of Hardy, 539 N.W.2d 729 (Iowa App. 1995). And a husband who improved a house given to the wife by her father could realize a return on those efforts. In re Marriage of Clark, 577 N.W.2d 662 (Iowa App. 1998). Finally, when large sums of money were inherited by husband, who acknowledged his wife had access to the property, and it was spent on increasing the parties' quality of life, it would be inequitable not to divide these funds between the parties. 

So, if you have read other blog posts of mine in the past, the conclusion we reach should come as no surprise to you: there is a general rule of non-division of gifted or inherited property. But that rule has exceptions, and those exceptions are very fact-specific and therefore difficult to define. 

How Much does a Divorce Cost?

It is a question that gets asked all of the time: how much is this divorce going to cost me? I will tell you right up front: it is a question without a satisfying answer. But an explanation of what the cost entails will help you, and your attorney, estimate a ballpark figure.

First, a general overview of how most (but definitely not all) attorneys charge their clients. Most attorneys are hired for divorces on an hourly basis. This means that the more work the attorney does, and the more time he or she spends on the case, the more it will cost. The exact hourly rate will vary based on several factors, including what geographic market the attorney works in, the experience of the attorney, etc. 

This hourly rate is broken down into increments; some attorneys use tenths of hours (.1, or 6 minutes), but some use quarters of hours (.25, or 15 minutes). Therefore, if the attorney uses tenths, a phone call lasting five minutes will be billed as .1, or one-tenth of the attorney's hourly rate.

At the initial meeting, I, and I suspect most attorneys, try to estimate how much time the case is going to take, multiply it by the hourly rate, and try to give a very rough estimate of cost. This is typically also the basis of the requested retainer, or money the attorney holds in trust to apply toward future bills. So, I will request a lump sum representing the amount I think it will take to complete the divorce. If I overestimate, the excess goes back to the client. If I underestimate, the client will be expected to pay more.

But the attorney's expenses are only one part of the cost of a divorce. There are also out-of-pocket expenses that must be covered. For instance, in Iowa, the filing fee for a divorce is $185. This is the amount paid to the court to handle the paperwork of filing the divorce and other logistics. There is also a decree fee of $50, due when the divorce is finalized. Finally, if serving the other spouse with the paperwork involves hiring a process server, this is considered a court cost as well. While the court costs can be divided during the divorce process, the one filing the divorce will at least have to pay these amounts up front, and then request reimbursement from the other spouse later.

In sum, the more issues that need to be resolved, the more expensive the process, especially considering this will probably involve a few court hearings that may last a long time. But beyond these rough guidelines, it is almost impossible to guess how much any given divorce is going to cost.