Tuesday, December 4, 2012

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. 

Tuesday, October 16, 2012

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. 

Thursday, September 20, 2012

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. 

Tuesday, August 21, 2012

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. 

Wednesday, August 8, 2012

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. 

Wednesday, July 18, 2012

Dissipation of Assets: Where Did my Stuff Go?

It comes as no surprise to anyone that people in divorces get angry. But sometimes that anger manifests in ways that destroy property, and also not surprisingly, it is usually the property desired by the other spouse. This is one particular kind of dissipation of marital assets, which involves reduction or destruction of any marital property. This blog post will discuss how this sort of behavior is treated by the legal system.

Now, because money makes the world go 'round, that is what most of the cases discuss, rather than the items a jilted ex-spouse burns or sells or just throws away. But the principles still apply, and if this sort of destruction meets the definitions and analysis behind dissipation of marital assets, there will be consequences to these actions. There are really two types of cases out there: those where one party took assets belonging to both, and those where one party increased the debts attributable to the couple. 

The increase of debt cases are actually more simple, as the test used by the Court is more straight-forward. It is a two-step process: the Court first considers whether the states purpose for the debt is supported by evidence, and then considers whether those reasons were "dissipation," or basically whether they were unjustified under the circumstances. This second step involves considering such things as the the timing of the debt, whether such debt was usual for this marriage, if the expense benefited both spouses, the need for the expenditure, and the timing of the expenditure. In re Marriage of Fennelly and Breckenfelder, 737 N.W.2d 97 (Iowa 2007). For instance, in that case, the husband accumulated lots of debt, allegedly for his business and living expenses, but failed to show any proof of those expenses. The Court therefore agreed this debt was a dissipation of assets because it was unreasonable, and the husband was charged with the full amount. 

Spending marital money by one spouse without the permission or input of the other spouse is the most typical way dissipation of assets occurs. This basically boils down to use of marital money for unauthorized use, whether that be pure waste, like gambling, or intentionally hiding money for later use. But use of marital funds for debts of the couple is allowed. For instance, use of the couple's savings for living expenses or to pay tax debts was not dissipation of the marital assets. In re Marriage of Snell, No. 0-346/99-1524 (Iowa App. 2000). Similarly, payment of prior spousal and child support obligations out of joint marital funds was allowed; the wife knew those debts existed when she married husband, and they had been paid out of joint assets during the marriage. This was not improper use of joint savings. In re Marriage of Burgess, 568 N.W.2d 827 (Iowa App. 1997).  To be dissipation, it had to be a waste of assets prior to the district court determining ownership of assets. Id. 

In order to get the benefit of using this money on marital expenses, however, the spouse must be able to account for it. Thus, where the husband had control over the assets of the marriage, including a lot of property and cash inherited by wife, and could not account for where it had gone, he would be charged with dissipating marital assets, and wife would get a larger property settlement. In re Marriage of Martens, No. 3-997/03-549 (Iowa App. 2004). Gambling can be considered a dissipation of marital assets when extreme and unexpected. In re Marriage of Bell, 576 N.W.2d 618 (Iowa App. 1998). 

Gambling is not always dissipation, however. In re Marriage of Schwegman, No. 1-125/10-1420 (Iowa App. 2011), involved husband's taking of over $30,000 from a joint savings account, without the ability to account for all of it. The Court gave the wife extra money due to this lack of explanation, but the husband argued that she had, during the marriage, spent lots of money on gambling. But there was little proof her gambling, and this was a hobby they had enjoyed together while married. Therefore, she was not held accountable for her gambling losses, but he was held accountable for his expenses of marital savings. 

However, the Court has been clear that the intention of this process is to equalize the finances of the parties, and not to punish bad behavior. So spending marital assets during the marriage on alcohol was not dissipation of marital assets in Marriage of Snell, supra. 

Please note, however, that money is all we have to make these injustices right. So even if you lost your favorite t-shirt, you are going to get credit for the value of the t-shirt. Nothing is bringing that particular shirt back. When it comes down to it, money is almost always what is on the line.

Thursday, June 14, 2012

Dividing Property of Couples who Aren't Married

Lots of couples live together without getting married. Sometimes the couple plans to wed eventually, but breaks up before the big day. Sometimes one or both parties are adverse to marriage. Sometimes one or both parties were married before, and are not eager to have that sort of relationship again. But whatever the reasoning, these relationship often end. Then the parties are in a situation where their money, and sometimes property, are combined. Clearly, if the couple was married, the legal system would just use the Iowa Code chapter of divorces to divide the property. But that is not available to couples that did not marry.


The Iowa Supreme Court and Iowa Court of Appeals cases discussing this sort of situation usually, but not always, center upon real property, in the form of either a house or farm. Typically, the Court considers how to divide such property under theories of contract, unjust enrichment, constructive trust, and joint venture. In re Marriage of Martin, 681 N.W.2d 619 (Iowa 2004).


Contract: The most straight-forward, if it can be proven, recovery method is in contract. A contract is simply an agreement between two parties. For instance, when one partner in a non-marital relationship tells the other to sell her home and move in with him, and she will have a place to live into retirement, the Court found a contract. It was breached when the couple split, and the partner retaining the residence owed the other partner damages. Kerkove v. Thompson, 487 N.W.2d 643 (Iowa App. 1992).


Unjust Enrichment: Unjust enrichment arises where someone keeps some sort of benefit provided by another without paying, where compensation is reasonably expected. This maybe utilized where one person improved the house owned by the other member of the couple, but the owner did not in any manner compensate for the improvements, and kept the house. However, the enrichment must be unjust in order to obtain recovery. In a case where the woman agreed to cook and clean for the man, expended no capital, took no risks, and expended only minor labor on improvements, no unjust enrichment on the man's part was established. Slocum v. Hammond, 346 N.W.2d 485 (Iowa 1984).


Resulting Trust: A resulting trust is a trust imposed by courts, where the circumstances suggest the prior owner did not intend to convey an interest in the property. Intent is key here. So, if the person who accidentally gives his or her interest refused to be on the mortgage or deed to a house, it was clearly not an unintentional surrender of rights. Slocum v. Hammond, 346 N.W.2d 485 (Iowa 1984).


Constructive Trust: This trust is also imposed by the court, where one wrongfully obtained property through wrongdoing. Again, intent can be key, but focuses on the wrongdoing. For instance, if a man tells a woman to move in with him, and she performs cooking and cleaning activities, but provided little toward the actual expenses of the house, there is insufficient proof of him acting inequitably or unconscionably to provide for a constructive trust. She rendered her services gratuitously. Slocum v. Hammond, 346 N.W.2d 485 (Iowa 1984).


Joint Venture: This seems to be the most used recovery vehicle in such cases recently. A joint venture is a business undertaking by two or more people toward a single project. This method divides the property based upon the interest each party held, which when buying a house is usually one-half to each. Therefore, the Court will typically reimburse for contributions toward the house (such as carrying costs and improvements, including labor) and divide the remaining amount equally. Scheppele v. Schulz, 728 N.W.2d 60 (Iowa App. 2006). Under this approach, the Court limits its analysis to the project, like the purchase of the house. Therefore, net worth does not matter, nor does other property, such as joint bank accounts. Riley v. Schrage, no. 01-0681 (Iowa App. July 19, 2002).


Loans: Just because a couple lives together does not mean that money flowing between them does not have to be repaid. In Shold v. Goro, 449 N.W.2d 372 (Iowa 1989), money provided by one party to the other in check form, delineated as a loan in the memo line, had to be repaid after the couple separated. To allow otherwise would to unjustly enrich the borrower by allowing him to keep the money he agreed to repay. 

Tuesday, June 12, 2012

Paternity Fraud

On June 1, 2012, the Iowa Supreme Court handed down a decision in the case of Dier v. Peters, no. 11-1581. Briefly, the Court found that a mother who defrauded a man into thinking he was the father of a child in order to gain money from him can be sued. But the case is certainly more complicated than that.

Facts
The lawsuit alleged that Peters, the mother, told Dier that he was the father of the child, even though she knew this was not true. Based on this assertion, Dier voluntarily provided money to Peters for her use and for the child's use. Dier later asked the court to determine custody of the child and, faced with the possibility of losing custody, Peters only then asserted Dier was not the biological father of the child. Two DNA tests confirmed he was not the father. Dier sought recovery of the money voluntarily provided to Peters, as well as the costs and attorney fees associated with the custody case. 

What is now allowed:
  • A cause of action for fraud against a mother for misrepresenting the paternity of the child, when:
    • The mother made a misrepresentation that the man was the father
    • The man was not the father
    • This assertion is likely to make the father act differently
    • The mother knew this statement was false or had reckless disregard for the truth 
    • The mother made the statement with the intent to deceive 
    • The man justifiably relied upon the statement 
    • The assertion was the proximate cause of the injury to the man
    • The assertion caused damages to the man
  • Even though the man can only reasonably rely upon the mother's statement that he is the father, the Court did not find that he must demand paternity testing. An action for fraud can still stand if he relied upon the mother's statement that he is the father.
  • Any child support payments previously ordered but not yet paid are no longer due and owing after paternity has been disestablished. This is not new law, but stems from the Iowa Code predating this case. Still, it helps clarify the parameters of paternity fraud.
  • Any child support payments ordered but due in future months are stopped. Again, this is not new law, but helps understand the big picture. 

What is still not allowed:
  • Repayment of court-ordered child support payments already made. The father had the chance to argue about paternity when the child support was originally established.
  • Attorney fees in the fraud action for having to defend himself in the paternity action; however, it may be possible to collect attorney fees in the underlying paternity action.

What remains unanswered:
  • Can the mother be ordered to pay emotional distress damages for telling the man that he is the father while knowing it is not true?
  • Does the case change if the child is old enough to be aware of, and affected by, the fraud case?

Friday, June 8, 2012

Contempt: The Cases

The previous blog post discussed the statutes that allowed for contempt, or punishment for violation of a court order. Now for a few highlights from the cases interpreting and applying those statutes.

First, as noted in the statutes, a violation of a court order must be willful to be contempt. Thus, the court has found that the refusal of a 16 and 18 year old to engage in visitation with their father did not amount to a willful violation by the mother. In re Marriage of Ruden, 509 N.W.2d 494 (Iowa 1993). And a good faith effort to comply with a court order will also prevent a finding of contempt. Wilson v. Fenton, 312 N.W.2d 524 (Iowa 1981). However, if an order is clear and unambiguous, there is no defense available that the violator did not understand and did not mean to violate the order. Yocum v. Gaffney, 131 N.W.2d 826 (Iowa 1964).  One can also be found in contempt for aiding and abetting violation of a no contact order; this is usually the protected party agreeing to meet with the violator. Hutchison v. Lee County, 480 N.W.2d 260 (Iowa 1992). 

Because jail is a possible consequence of a contempt action, the violator is entitled to a court-appointed attorney as a criminal defendant would. McNabb v. Osmudson, 315 N.W.2d 9 (Iowa 1982). Also because of the criminal nature of the consequences of a contempt finding, the violation must be established beyond a reasonable doubt. Phillips v. Johnson County, 380 N.W.2d 706 (Iowa 1986). However, if the violator asserts any defenses to prevent a finding of contempt, the violator bears the burden of proving those defenses to the court. Skinner v. Ruigh, 351 N.W.2d 182 (Iowa 1984). 

Multiple violations can be tried in the same contempt proceeding, such as multiple months of nonpayment of child support. Johnson v. Mahaska County, 385 N.W.2d 562 (Iowa 1986). Because the goal of contempt actions is to gain compliance with a court order, the court does allow for purging of contempt, or correcting one's actions to avoid punishment. This includes prompt payment of delinquent child support, for instance. Nystrom v. Woodbury County, 58 N.W.2d 40 (Iowa 1953). 

These case spell out the most basic, widely applicable rules on contempt actions. Of course, other situations will arise, and judges will have to apply these cases and statutes to the particular scenario in front of it. 

Tuesday, June 5, 2012

Contempt: The Statutes

Contempt actions are the vehicles to enforcement of a court order. That is, when someone refuses to provide the children for a court-ordered visitation, or does't pay child support, or violates a no contact order, the other party can attempt to have them held in contempt. The underlying idea is that the person violating the order has disrespected the court's authority by violating its order, and should be punished accordingly.


As you might expect, this subject is long and involves not only fairly detailed statutes, but also many cases interpreting those statutes. Therefore, this post, like ones before it, will be broken into to segments: the statutes, and the cases. Today, the rules as set out by the legislature.


Iowa Code 598.23 states that willful violations of a temporary order or decree in a divorce case may cause the violating party to be held in contempt, which can include a jail sentence up to thirty days for each offense. In the alternative, the court can order other punishments or solutions, such as requiring child support to be taken directly out of the violator's paycheck (if being punished for nonpayment of support), modify visitation to compensate for lost time, transfer custody or order joint custody, order exchanges to occur through a neutral party, or other sanctions, requirements, or even mediation to enforce the custody arrangement. 


A finding of contempt for nonpayment of child support has its own set of rules. Under Iowa Code 598.23A, one can be found in contempt for nonpayment of support or cash medical. If found in contempt, there are a variety of punishments available. The violator can be required to post bond in the amount of the arrears plus 12 months of current support, which can be forfeited to the other party after nonpayment within three months. The court can require the violator to do community service, which can be released by the violator becomes employed and starts paying child support, pays at least six months of support, or a change in circumstances prevents the violator from performing community service.


Under this code section, the court can prevent a person not paying support from participating in any activities that require a license. However, if this causes "extreme hardship," the court may allow such participation under certain conditions. The license is released when the support is paid. 


A finding of contempt can expose the violator to payment of the court costs associated with the contempt proceeding. Iowa Code 598.24. One can be found in contempt for violation of an injunction, which includes restraining or no contact orders. Iowa Rule 1.511. One can also be required to pay a find of up to $1000. Iowa Code 665.4.


Logistically, contempt actions are a little complex to file. The process is unlike most other in the law, and certainly in family law. For instance, there must be an affidavit showing the nature of the transaction. Iowa Code 665.6. There must also be personal service upon the violator, including notice of when the hearing is scheduled. Iowa Code 665.7. While there are some actions under family law that can be handled easily by one's self, this is probably not one of them.


Tomorrow: the cases that flush out other contempt issues. 

Wednesday, May 23, 2012

A Brief Overview of Discovery

Once a family law case begins, each party needs to find out information about the other side's case, so each can be prepared for a trial. Because this is true in all kinds of cases, the methods for finding this information are uniform for most types of cases, and therefore might have limited value in the family law arena. This is a brief overview of the types of information gathering tools (called broadly "discovery"), how they work generally, and which are most valuable and used in family law.


1. Financial Statements: Under Iowa Code 598.13, these are mandatory in divorce cases in Iowa, but can be waived if both parties agree. This disclosure involves completion of a form about income, debts, assets, and monthly expenses. It gives a complete financial picture of the party, which can help in a variety of family law issues.


2. Interrogatories: These are written questions sent by one party of the action to the other. They must be answered fully, under oath, and signed. These must be completed within 30 days of getting them from the other party. The number of questions is capped at 30. Iowa Rule of Civil Procedure 1.509.


3. Requests for Production of Documents: This method is also in writing. In most cases, this involves sending a list of requested documents to the other party, which the party must produce within 30 days. However, it can also be used to test, inspect, or sample, and can include electronic data or real property. Usually family law requests involve financial documents. Iowa Rule of Civil Procedure 1.512.


4. Physical/Mental Exams: Iowa Rule of Civil Procedure 1.515 allows for a party to request the other to undergo a physical or mental examination by a doctor. However, good cause must be shown to require the exam, which is very difficult to prove, especially in family law cases. This is rarely used. 


5. Requests for Admissions. Iowa Rule of Civil Procedure 1.501 mentions this method. This involves sending the other party written statements, and asking that party to admit or deny that the statement is true. These also have a 30 day time limit, but worse than the other methods, if a response is not received within 30 days, all the statements are deemed admitted. Therefore, timing is very important.


6. Depositions: This method has an entire chapter in the Iowa Rules of Civil Procedure, starting at 1.701. This involves questioning of either a party or a witness under oath, in person, while the answers are being recorded by a court reporter. Both attorneys are usually present, as well as the parties, whether or not they are being questioned. These can be used later at trial if a witness changes his or her story, but can be expensive. Depositions are sometimes, but not certainly not always, used in family law cases.


Just because a question is asked in any of these methods does not mean it is proper or must be answered. An attorney will help make the decision about whether a question should be answered, and if so, to what extent. People can represent themselves in family law cases, but the discovery process is one in which some expertise will make the navigation less confusing. 

Friday, May 18, 2012

Post-Secondary Education Subsidy: The Cases

Yesterday, I outlined the statute that discusses the post-secondary education subsidy (PSES) under Iowa law, providing for college funding for children of divorced parents. However, that discussion really did not develop on what the terms meant or under what situations the requirements have or have not been met. This post will develop those discussions more.


First, it is important to note that this statute only applies to children of parents who are divorced. It does not provide funding for children of parents who are still married or never were married. In re Marriage of Vrban, 293 N.W.2d 198 (Iowa 1980); Johnson v. Louis, 654 N.W.2d 886 (Iowa 2002). Second, it only applies to parents who were divorced in Iowa under Iowa Code chapter 598. So if a couple divorced in another state, the parent or child cannot seek PSES in Iowa later. White v. White, Iowa App. 2011. 


Repudiation. As previously noted, if a child disowns the parent, the parent will not have an obligation to provide PSES. There have been several cases outlining what this means. When the child would not speak to the parent nor list the parent on the high school graduation program, the parent did not have to pay. In re Marriage of Pendergast, 565 N.W.2d 354 (Iowa 1997). This is even more true when the child never listed dad as a parent, and would not even acknowledge him in public. In re Marriage of Baker, 485 N.W.2d 680 (Iowa App. 1992). However, if the lack of communication between the parent and child is due to the parent's behavior (such as being so harassing to ex-wife as to prevent any communication), the child did not disown the parent. Tack v. Sandholdt, 519 N.W.2d 414 (Iowa App. 1994). 


Qualification. The statute outlined yesterday also showed that the child does not automatically qualify for the subsidy, but must meet criteria to receive the PSES. If the child receives poor grades during the first year of higher instruction, it may indicate the child is not able to perform at the higher level of education sufficiently to warrant PSES. Moore v. Moore, 702 N.W.2d 517 (Iowa App. 2005). The PSES is available only to persons between the ages of 18 and 22, but this means the student need only be under the age of 23. In re Marriage of Neff, 675 N.W.2d 573 (Iowa 2004). While the child must be a full-time student, the court does not use the same definition of full-time as the college will; for purposes of Iowa law, full-time means continuous attendance during the normal school year. In re Marriage of Huss, 438 N.W.2d 860 (Iowa App. 1989). And the court must be able to discuss the issues involved in determining whether the PSES is appropriate, so if the children are too young, the court will leave the determination to later. In re Marriage of Mayfield, 477 N.W.2d 859 (Iowa App. 1991).


Resources. In addition, the court will consider what resources are available to the child/student prior to determining what each parent's obligation is. For instance, if the child lives at home while attending school, the parent providing the home is generally credited with providing this benefit. In re Marriage of Wood, 567 N.W.2d 680 (Iowa App. 1997). The court also will take into consideration all funds available to the student, regardless of whether the student intends to use the funds for college (such as savings bonds). In re Marriage of Kupferschmidt, 705 N.W.2d 327 (Iowa 2005). 


As discussed above, the court will only determine the amount of PSES needed by reference to a public, in-state college. Therefore, if the student chooses an out-of-state school at a higher expense, but has received a financial aid package that, while not covering the student's cost of attendance, does exceed the cost of an in-state education, no PSES is warranted. In re Marriage of Sullins, 715 N.W.2d 242 (Iowa 2006). 


Expenses. Only certain college expenses are included in this calculation of the need of the student. The include tuition, room, board, and mandatory fees, such as labs, student health, and computer fees. The parties can agree to cover additional costs, but the court will not force those upon a parent. In re Marriage of Dolter, 644 N.W.2d 370 (Iowa App. 2002). Sorority or fraternity fees are not included in necessary expenses. In re Marriage of Goodman, no. 4-079/03-1133 (Iowa App. 2004). 


Miscellaneous. A couple other minor points bear mentioning. First, unlike in child support, the ability of the parents to pay is relevant. The parents are not expected to sacrifice to the same level as they would to support a minor child. In re Marriage of Longman, 619 N.W.2d 369 (Iowa 2000). Finally, because the payment is to be made to the child or college, one parent cannot pay and then request reimbursement from the other. Such payments are considered voluntary. Id. 



Thursday, May 17, 2012

Post-Secondary Education Subsidy: the Statute

Under Iowa law, children of parents who are divorced have the possibility of receiving post-secondary education subsidies from their parents. In layman's terms, the parents may be required to pay for college for their children. Because of the length of the statute, and the number of interesting cases, this topic will be broken into two blogs. Today, the statute; tomorrow, the cases. 

The statute in question is Iowa Code 598.21F. It allows for a post-secondary education subsidy (which will be abbreviated PSES) when good cause is shown. In determining whether the PSES is necessary, the Court will consider the age of the child, the child's ability regarding higher education, the child's financial resources, whether the child is self-sustaining, and the finances of each parent.

To determine the amount of the PSES, the Court engages in a multi-step analysis. First, the PSES is based upon the cost of a public, in-state, undergraduate degree, and includes only reasonable costs for necessary expenses. Having determined what this cost is, the Court then figures the amount the child is reasonably expected to contribute. This contribution can include financial resources such as financial aid, scholarships, grants, loans, and the ability to earn income while enrolled. This amount is deducted from the costs previously determined, to reveal the amount of unmet costs. The remaining amount is then apportioned between the parents. However, in no event will either parent's contribution exceed one-third of the total cost.

Once the Court has divvied up the college expenses, they have to be paid to someone. Unlike child support, the custodial parent is not the recipient of these funds. They are either paid to the child or to the college. 

The child also has some things to do if he or she is going to get the PSES. First, if the child repudiates the parent by publicly disowning, refusing to acknowledge, or similar actions, he or she will not be entitled to the PSES. Second, if the child receives the PSES, the child must forward his or her grades to the paying parent within 10 days of receipt. Finally, if the child's grades are below the median grade point average for his or her college each semester, the PSES will ended after the first calendar year of instruction.

Of course, there are many interesting cases discussing the ins and outs of all of these rules. Those will be explored in our next installment!

Wednesday, May 16, 2012

Child Support Modification

Modification of family law orders are generally the same. One must establish a substantial change in circumstances not anticipated at the time of the original order. The parties can agree to a modification of custody, visitation, or support. But each one of those modifications has its own wrinkles and idiosyncrasies. Today is about modification of child support.

Those individuals who have enlisted the help of the Child Support Recovery Unit will know the familiar rule that modification of child support can only be done every 2 years. It is true that the State will only perform an administrative review every two years, but one can hire a private attorney to file a modification at any time, so long as the "substantial change" requirement is met.

Modifications of child support are governed by Iowa Code 598.21C. It allows for consideration of the following factors in determining whether a substantial change in circumstances has occurred: change in employment, resources available, earning capacity, inheritance, gifts, medical expenses, the number of dependents of either party, health of the parties, remarriage, support of another person, changes in the needs of the child, and other factors. 

While proving a substantial change in circumstances in custody or visitation cases is a moving target, where no one is sure whether it has been established until a judge decides the case, modifications of child support are more clear cut. Iowa Code 598.21C specifically provides that the child support obligation must change by 10% or more for a substantial change in circumstances to be proven. That means a child support obligation of $500 a month must, based on new figures, go up or down by $50 a month to warrant modification. In addition, a substantial change in circumstances can be proven in some cases where health insurance becomes available to cover the child.

It frequently happens that the event making child support change (a new job, getting fired, promoted, having another child) happened months or even years before someone hires a lawyer to fix the situation. As a way to prevent harsh results either way, the Code provides that modifications can only be retroactive for three months. That is, when the judge enters the order increasing or decreasing support, it can only go back three months. If child support is lowered, the paying parent will not owe as much for the last three months, and likely have a credit on his or her account. If the child support is increased, the paying parent will already be behind on child support. But the same Code provision allows for a periodic payment plan to catch the paying parent up without making it too burdensome.

The cases decided in this area are so fact-specific as to be of little value for other cases; a small change in facts makes a big change in results. Still, two cases bear mentioning. First, In  re Marriage of Barker, 600 N.W.2d 321 (Iowa 1999) involved child support reduction because Mom was sent to prison. The Court lowered her child support; she was earning $.23 an hour, and she was going to be in prison for years. She had a long term reduction in her earning capacity.

Second, In re Marriage of Koepke, 483 N.W.2d 612 (Iowa App. 1992) involved Dad requesting a modification because Mom's boyfriend was contributing to household expenses. The Court did not consider the boyfriend's contributions. The Court had previously found it would not generally consider even step-parents' contributions, and this was even more concerning. But there are some limited circumstances where the income of a step-parent is at least relevant to, if not directly impacting upon, child support.

Monday, May 14, 2012

Some Considerations of the Military and Family Law

When one or both parents or spouses are in the military, a lot of complications will inevitably arise. This post does not seek to identify all of these unique complications, but only the most common ones.

  • The Servicemember Civil Relief Act: this law generally provides protection for service members who have been called to active duty, preventing many legal actions from being taken against them. However, the problem in family law is that it can delay actions, including divorces and support orders, for many months. However, Iowa has mitigated this problem somewhat. See the article on visitation during military deployment.
  • Service of process: if the soldier is deployed or even states-side but active duty, getting him or her served at the beginning of an action is going to be difficult. Sometimes the soldier will accept service, or sign for the paperwork. If he or she will not, though, this can be a problem. However, there is an army regulation that is aimed to prevent barriers to service, and suggests giving the soldier an opportunity to sign for the documents, and will provide the soldier an attorney to explain the consequences thereof.
  • Child support: this can be complex because of the way pay is set up for service members. Only a portion of the pay is taxable, so a W-2 from the government will only tell a part of the story. Other benefits are often paid in cash (such as re-enlistment bonuses, allowances for housing or subsistence, hazard pay), which strongly indicates they are income. 
  • Enforcement: the army also has a regulation requiring soldiers to support their dependents, and has a process in place to enforce the regulation. Therefore, while getting the appropriate child support set may be difficult, but making sure it is paid is not as bad. 
  • Other divisions: retirement accounts and life insurance are surprisingly similar to civilian life. Health insurance is generally available at no cost for the soldier. Therefore, while these are the same issues dealt with in all family law matters, fortunately it is generally not more difficult than in those cases.
Again, this is by no means an exhaustive list. It is merely a highlight of some of the most common complexities of a family law matter in a military family. All cases, as in any area of the law, are complex in their own individual  way. 

Friday, May 11, 2012

Military Deployment and Custody/Visitation

With the recent military operations in the middle east, and with the utilization of National Guard and Reserves members to fulfill these missions, there has been a great deal of uncertainty regarding how active duty deployment effects custody and visitation arrangements in existence before active duty. The Iowa legislative branch has considered this scenario at least twice, and has developed a framework.

In April, 2011, the Legislature signed into law amendments to Iowa Code 598.41D, which discusses what will happen to a deployed parent's custody or visitation pending his or her return. The most recent version of the law makes it clear that the prior provisions apply regardless of whether the deployed parent was the primary custodial parent or not. That is, the statute applies not only to visitation, but also when the soldier is the primary care parent.

The Statute provides the process for changing care or visitation upon active duty. The parent being deployed files with the Court an application for modification to temporarily assign a family member of the child the deployed parent's visitation or custody rights. The deployed parent must include an affidavit of the person being assigned the visitation showing that individual's knowledge of the circumstances and willingness to assume the parenting time. The deployed parent can also request changes in the visitation schedule, if needed.

Of course, it will frequently be the case that the deployment itself will interfere with the parent's ability to appear at hearings regarding these issues. To alleviate this problem, the Statute allows for an expedited hearing if necessary, to allow the issue to be resolved before the deployed parent leaves. If this is not possible, the Statute also allows for the deployed parent to participate in any hearings "by electronic means," which includes telephone, video teleconference, or the internet.

At the hearing on the requested assignment of visitation or custody, the Court will, as always, be guided by what is in the best interests of the child. In making this determination, the Court has to ensure several facts about the family member assuming visitation or custody. The family member must not be a sex offender, have a history of domestic abuse, or have a record of founded child or dependent adult abuse. On the flip side, the proposed person must have an established relationship with the child, provide financially and personally for the child, and support the relationship between the child and both parents. 

The Court can provide to the family member any visitation that is less than or equal to the parenting time of the deployed parent. That is, if the soldier has visitation with the child of every other weekend, the Court can grant every other weekend to the family member, or less. But this temporary assignment of visitation does not create in the family member any ongoing claim of visitation or custody rights to a non-parent. This temporary assignment ends either automatically upon return of the deployed parent, or upon notification of the parent to the Court, whichever occurs first.

Finally, it is important to note that the absence of the parent for military service does not create a substantial change in circumstances to modify a custodial arrangement later. That is, the non-deployed parent cannot claim that the order on custody and visitation should be amended because the deployed parent was out of the child's life for a year, or did not exercise visitation. 

This process is complex and may take some time, but at least it provides a framework for families that already find themselves in turmoil surrounding active military duty. 

Thursday, May 10, 2012

Iowa is a No-Fault State

A long time ago, Iowa's divorce statutes provided that the parties had a limited amount of reasons that they could cite to get a divorce, which mostly involved blaming one party or the other (such as infidelity, criminal acts, mental health issues). But that all changed in 1970. The Legislature passed the modern permutation of the statute, which cited only a breakdown of the marriage as a reason to dissolve the marriage. And that changed a lot of things.


In re the Marriage of Williams, 199 N.W.2d 339 (Iowa 1972) considered no-fault as applied to division of assets. Prior to the new laws, the Court considered fault as a part of property and support. But the new statute called this into question. In this case, the Court decided for the first time, " not only the 'guilty party' concept must be eliminated but evidence of the conduct of the parties insofar as it tends to place fault for the marriage breakdown on either spouse must also be rejected as a factor in awarding property settlement or an allowance of alimony or support money." Id. at 345. That is, fault had no place in the property division or support allocation of a dissolution of marriage. It did not matter why a marriage fell apart; the Court just aimed to divide equitably the assets and debts and move on. 


The cases continue to outline what limiting  fault in dissolutions of marriage means. For instance, a party who is abused by another party is not entitled to a greater share of property rights or alimony because of the abuse. In re Marriage of Goodwin, 606 N.W.2d 315 (Iowa 2000). One party's expenditures on gambling were not to be considered in awarding alimony, as this also introduced fault into the equation. In re Marriage of Olson, 705 N.W.2d 312 (Iowa 2005). 


An interesting issue arising from the no-fault dissolution law was discussed in the In re Marriage of Cooper case, 769 N.W.2d 582 (Iowa 2009). The husband had been unfaithful to his wife, but they attempted to stay married, and as a product thereof, signed a contract outlining the division of assets should the marriage ultimately fail. The contract specifically mentioned and outlined husband's infidelity. 


The Court found that agreement to be void. "We do not wish to create a bargaining environment where sexual infidelity or harmonious relationships are key variables." The Court sought to limit its engagement in he-said-she-said arguments and intense probing of a marital relationship. The entire goal of no-fault divorce was to limit acrimonious proceedings, which would be encouraged by this sort of agreement. And allowing the parties to contract to inject fault back into the relationship would be to allow people to end-run the legal system. 


The exception to the no-fault rule is usually when children are involved. It does not matter if one party cheated on the other, unless it has somehow affected the child(ren) or the parenting ability. With this giant caveat, however, it really should not matter why the marriage fell apart. 

Wednesday, May 9, 2012

Annulment of Marriage

An annulment of marriage generally means that the Court will declare the marriage never existed. It is different from a divorce or dissolution of marriage in that way. Because of this, there is a limited list of reasons one can get an annulment.


Iowa Code 595.29 lists these finite reasons for obtaining an annulment. The first listed reason is that the marriage is prohibited by law. More about this below. Annulments may also be obtained if either party is impotent at the time of marriage, or either party is under a guardianship and has been determined by the Court to lack the capacity to contract for marriage. Finally, an annulment may be obtained if either party was married to someone who was living at the time of the second marriage. However, the second marriage is not invalidated if the parties lived together after the death or divorce from the first spouse. So, if husband did not complete his divorce from wife 1 before marrying wife 2, the second marriage can be legitimized if the divorce from wife one is completed and he continues to live with wife 2.


As for marriages that are against public policy, it helps to look under the definitions of a valid marriage and marriage license contained in Iowa Code chapter 595. These include the marriage of someone under the age of 18 who does not have the consent of the parent(s) or the court, persons disqualified from making civil contracts, or those who are too closely related to be married. 


But how, logistically, does an annulment work? If either party questions whether their marriage is valid, the party can file a Petition for Annulment. The Court will then consider the facts surrounding the union, and either affirm or annul the marriage. Iowa Code 598.30. The Petition looks very similar to the one used for a divorce. Iowa Code 598.28. 


As noted above, if the annulment is granted, the marriage never legally occurred. However, a couple of provisions of Iowa law do mitigate any harsh result. First, children born in a marriage that is later annulled are still considered "legitimate," unless the facts establish otherwise. Second, if one party entered into the marriage in good faith and the marriage is declared to be null, the innocent party may be awarded compensation as in a dissolution of marriage. 

Tuesday, May 8, 2012

Parent Relocation as Grounds for Modification

What happens when the parent who has primary care of the child decides to move? Of course, as with most things relating to child custody, there are no clear answers. But in this case, there at least is some guidance.

Iowa Code 598.21D provides that, if the parent who has primary care moves more than 150 miles from the child's home at the time the custody was granted, the move may be considered a substantial change in circumstances for purposes of modification. 

The statute further provides that the Court shall, if it determines this is a substantial change in circumstances, at a minimum, modify the custody arrangement to preserve as nearly as possible the relationship between the child and the non-relocating parent. This can include extended visitation during the child's breaks from school and scheduled telephone contact. 

As you may have noticed from reading the language of the law, the Court does not have to consider the move to be a change in circumstances warranting modification. Rather, it may do so. Do not assume that your ex's move is absolutely going to give you a leg up in a modification. Further, it does not presume that custody will change to the other parent, but only provides that visitation may be amended to make sense with the new geographic reality.

In fact, modification of primary care to the other parent is difficult. In general, modification of primary care is a two-step process: the parent seeking modification must prove both a substantial change in circumstances and that the parent seeking modification will provide superior care. The move over 150 miles will potentially meet the burden on the first step, but says absolutely nothing about the second step. This statute gets the non-custodial parent, at best, halfway there. 

The Court of Appeals has also repeatedly considered whether specific language in an agreement between the parties, or even ordered by the Court, is enough to change custody. That is, parties and district courts will sometimes put into court orders that, if one party moves, the other party will automatically get custody or different visitation. The Court of Appeals has stated several times that these sorts of orders are but one factor to consider in a modification; ultimately, the best interests of the child will control. 

Here's the bottom line: the Court will realize that one parent moving more than 150 miles away from the other is probably going to change how the parents operate on a day-to-day visit. It is likely that the visitation terms will have to be changed. It might even be severe enough, considering all factors, to change primary care completely. But the Court is not going to assume any of this, and will consider each case on its own facts. 

Monday, May 7, 2012

Premarital Agreements

Under the Iowa Code, they are call premarital agreement. They have also been known by other names, such as prenuptial agreements, antenuptial agreements, or simply prenups. But whatever name is used, the agreement is a document that has many more uses than most people realize, and has very specific requirements.


Iowa Code chapter 596 contains the statutes in Iowa used for establishing and enforcing premarital agreements. First, premarital agreements are enforceable only upon marriage; if a couple executed a prenup but did not actually get married, the agreement is not enforceable. Iowa Code 596.1. Further, the contract must be in writing and signed by both prospective spouses. Iowa Code 596.4. This agreement will also bind both spouses to execute any documents necessary to effectuate the contract. Id. So, if the contract requires sale of a piece of property, both parties will have to sign the selling document or face potential legal action.


Most people view premarital agreements simply a vehicle to make a divorce simpler, but the value of such a contract is much higher. As most people expect, the contract can provide the rights and obligations between the spouses to property, regardless of how it is acquired or where it is located. Iowa Code 596.5. It can further outline the parties' rights to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest, mortgage, encumber, dispose, manage, or otherwise control property. Id. While the contract can outline how property is disposed upon separation or divorce, it can also outline how property is disposed upon death or any other triggering event. Id. Therefore, this can be used as an estate planning tool as well. 


The contract can select what state's law applies, ownership and disposal of life insurance benefits, and any other matter that is not against Iowa public policy or criminal law. Id. However, a prenuptial agreement cannot adversely effect the rights to spousal or child support. Id. 


A premarital agreement becomes effective on the date of marriage. Iowa Code 596.6. After the marriage, the contract can be revoked, but in a limited amount of ways. The first, and easiest, is by written agreement signed by both spouses. Iowa Code 596.7. If one party wants out of the contract without consent, that party must prove one of three situations. The first is that the execution of the contract was not voluntary. The second is that the contract was unconscionable at the time it was executed (meaning, in a nutshell, unreasonably favorable to one party while precluding meaningful choice for the other party). Finally, if the spouse can prove that, before the contract was executed, the spouse was not provided a fair and reasonable disclosure of the property and financial obligations of other spouse, and did not have or could not get adequate knowledge of these circumstances. Id. If only one provision of the contract is found to be unenforceable, the other provisions that are not affected will still be enforceable. Iowa Code 596.8.


Without getting into too much detail here, the above laws only apply for contracts entered into after 1991. If your contract is from before 1992, different rules apply. In general as well, these agreements, including necessity, contents, and enforceability, will depend on the facts. Contact an attorney with additional questions.

Friday, May 4, 2012

Step-Parent Adoption

It is unfortunate, but sometimes it happens, that a parent is no longer a part of a child's life. Sometimes the parents were married, and one spouse just stops coming to visit. Sometimes the parents were never really a couple, and the father may not even be aware that a child exists. Often, however, one parent or the other has a new significant other who has been acting as a parent and would be more than happy to make it official. And frequently, if the other parent has not been involved in the child's life, he or she may not be opposed to the idea.


In this situation, where essentially no one is objecting to the step-parent adoption, the process is relatively simple and involves mostly filing of documents. There are several ways that the process is made simpler for a step-parent adoption. 


The typical adoption is a two-step process: first, the biological parents' rights are terminated, meaning they no longer have any legal claim to the child. Only after this is accomplished do the adopting parties become the parents. However, a step-parent adoption allows this to happen in one step rather than two, disestablishing the prior parent and establishing the adoptive parent at the same hearing. The one step approach can also be used if the parent consents to the adoption and is a resident of the state. Most step-parent adoptions fit both scenarios.


The other way the process is made much simpler for step-parent adoption is in the placement investigations. The typical adoption requires a pre-placement investigation, as well as a background check, and also a post-placement investigation. When seeking a step-parent adoption, however, none of these investigations are necessary, with one important difference: if the parent seeking to adopt has a criminal record (anything greater than a simple misdemeanor) or has a founded child abuse report by DHS, this must be disclosed. The Court will either then require an investigation or must waive the requirement. 


As noted above, the process is largely one of paperwork. The attorney will prepare the initial documents, including a petition for step-parent adoption. A guardian ad litem will be retained to ensure the best interests of the child are represented to the Court. Certain documents must be collected by the parties, including a birth certificate. Hopefully, a consent will be obtained from the parent being disestablished. Then a hearing is held that, if all parties agree, is mostly a formality. Still, all interested parties are welcome to present any necessary evidence at that hearing. 


After the hearing, assuming the Judge has granted the adoption, the Court will seal the records, and a new birth certificate will be issued, showing the adoptive parent. 


And that's about it. It is pretty simple if everyone is in agreement. Of course, if the parent being disestablished will not consent, the process becomes much more difficult.

Wednesday, May 2, 2012

Legal Separation

Legal separation really isn't a thing under Iowa law. Usually when someone asks for legal separation, he or she means one of two things: what happens while the divorce is pending, or to have separate lives without really getting divorced.

The first category of people want to tell others that they are not married and will be divorced soon, so the easy way to describe this is separated. And I agree with this characterization; you are separated from your spouse. But you are not legally separated. Legally speaking, when a divorce is pending but not finalized yet, the couple is still married. 

The second category of people do not want to actually be divorced, but do not want to be married anymore. The couple will still be married, but everything else will be as if the couple is divorced. A Decree of Separate Maintenance can have a division of property (Iowa Code 598.21), spousal support (598.21A), and child support (598.21B). So an action for separate maintenance divides marital assets like a divorce has occurred, and provides for determination of support, but the couple remains legally married. 

Why would someone want this type of action? Sometimes people do not want to be divorced for religious reasons. Sometimes one party has a medical condition, and will lose health insurance coverage if he or she is no longer married to the primary insured. Sometimes people are hopeful that the marriage will work after all, and want to keep the bonds of matrimony in place. But generally speaking, an action for separate maintenance is just as expensive and as long of a process as a divorce, and therefore it will not meet the needs of most couples who are splitting up. 

Tuesday, May 1, 2012

Alimony/Spousal Support

This will be a very basic, general discussion of spousal support or alimony under Iowa law. Entire books could be written on the subject, so the focus here is simply the types of spousal support that Iowa recognizes and the factors used to determine whether it is appropriate in any given case.


There are three types of spousal support recognized in Iowa. The first, and most well-known, is traditional alimony. This type of alimony is based upon the idea that one spouse is not capable of becoming self-supporting, and therefore entails payments for the life of the non-supporting party. In my experience, this type of spousal support is typically awarded where the non-supporting party has either been a stay-at-home parent for a very long time, or has a disability that prevents him or her from working.


The second type of alimony is rehabilitative alimony. Here, the receiving spouse is provided support for a limited period of time, in order to allow that spouse to be re-educated or re-trained to enter the job market and become self-supporting. I have seen this type of spousal support most often in cases where a spouse has stayed home with the children for a shorter term, but has worked in the past or could work fairly easily in the future. For instance, this type of spousal support would be helpful where the mother has been at home with the child for the last four years, but prior to that time, worked as a teacher. A shorter period of alimony will allow her to regain her license and find a job, but she would ultimately be capable of earning her own living.


The final type of spousal support is reimbursement. This allows the receiving spouse to obtain payment as a way to share in the other spouse's future earnings. In my experience, this is the most rare type of spousal support, but is intended for situations where one spouse helps the other  become a high earning worker, such as supporting him or her through medical school, without realizing the return thereon. 


Even though Iowa law carefully outlines these types of spousal support and the circumstances appropriate for each, Iowa law does not strictly adhere to the titles or categories. Therefore, a judge can order spousal support of any kind, any duration, or any hybrid thereof, if the circumstances warrant.


Iowa Code 598.21A outlines the factors to consider in determining whether spousal support is appropriate, and how much to award. These factors include:

  1. The length of the marriage
  2. The age and physical and emotional health of the parties
  3. The property distribution [including if inequities still exist after the division]
  4. The educational level of each party at the time of marriage, and now
  5. The earning capacity of each party, including all factors such as work history, children in care, absence from the job market, and need for re-training before working
  6. The ability of the party seeking support to become self-supporting at the standard of living during the marriage, and how long it would take to do so
  7. Tax consequences to either party
  8. Any agreement between the parties, such as future compensation or reciprocity for support of the other spouse during the marriage
  9. Any prenuptial/antenuptial agreement
  10. Any other relevant factors
As you can imagine, these factors make it very difficult to determine whether spousal support will be awarded in a case, including how much and for how long, without evaluating each case independently. Therefore, analysis of each case is very important on its own facts and circumstances. 

Monday, April 30, 2012

Common Law Marriage

Sometimes, I will get a phone call from a prospective client claiming he or she has a common law marriage, but without a firm grasp on what that really means. It is a common misconception that a couple must live together for a specific period of time before they are considered common law married, but under Iowa law, that is not how it is determined.

The most comprehensive discussion of Iowa common law marriage recently has been the case In re Marriage of Martin, 681 N.W.2d 612 (Iowa 2004), and therefore that is the case I am using to outline Iowa law on this topic.

At the outset, it is important to understand that Iowa law does not favor common law marriage. That means that the party asserting there was a common law marriage bears the burden, and such claims are "carefully scrutinized." So it is no easy feat to have a common law marriage declared. To establish a common law marriage, one must prove three elements: present intent and agreement to be married by both parties, continuous cohabitation, and a public declaration that the parties are married. 

Present Intent to be Married: This element reflects the contractual nature of marriage, requiring agreement by both parties, like any other contract. This agreement does not have to be express, meaning the parties do not have to discuss and decide to be married. Instead, it is usually sufficient for one party to intend to be married, and the other to act in such a way to indicate he or she agreed. Evidence of present intent to be married consists largely of the conduct of the parties and their reputation in the community as a married couple (if neighbors, teachers, etc. thought the couple was married). Please note that this is present intent to be married, not future intent. That is, if the couple was engaged to be married some time in the future, there is no common law marriage.

Continuous Cohabitation: Living together alone does not establish common law marriage, but is considered basic to establishing that a couple is married. There is no specific time that a couple must live together. It is an extension of proving the present intent to be married, so this factor will balance against other factors in each given case.

Public Declaration: The Iowa Supreme Court considers this to be the acid test for common law marriage. A couple must hold itself out as married to be common law married. Some inconsistent statements are allowed. In general, the Court will look for a substantial holding out to the public as married.

All of these elements are very fact-specific. That is, whether a specific couple is common law married is going to depend very much on the facts surrounding that specific couple. An attorney can help analyze the issues, but the final determination will have to be made by a judge.

Why would someone want to be established as common law married? It usually arises in one of two factual scenarios. First, one of the parties has died, and the other would like to recover under his or her estate as the spouse. Second, one party leaves the other party, and a party would like to have the property divided through a divorce rather than based on pure ownership. That is the most important thing to remember about common law marriage: once you are in one, it takes a divorce to get out of the marriage. Be careful what you ask for. 

Friday, April 27, 2012

Restraining Orders

There are several types of Orders that prevent people from contacting other people in Iowa. Some are issued by the Court or the State itself, such as ones arising from a criminal case or from a juvenile court case. Some are issued between people who are not romantically involved, like a co-worker or neighbor. I am not going to discuss these.


People who call me are usually interested in a Chapter 236 Protective Order. This is set up to be a do-it-yourself no contact order; the form is available from the Clerk of Court and on the internet through the Iowa Judicial Branch, and can be completed without a lawyer. 


Chapter 236 is the chapter of the Iowa Code dealing with domestic abuse. Therefore, this type of Order, as noted above, applies only to a few very specific relationships: family/household members living together at the time of the assault or within one year prior, spouses who are separated or divorced, parents of the same minor child, or persons in an intimate relationship. Any need for a no contact order in another type of relationship will need to be handled in a different manner.


The form is fairly straight-forward, requesting such information as names, addresses, birth dates, and locations of employment. The form will ask whether the Defendant has physically abused, sexually abused, or threatened to abuse in such a way as to cause fear of physical safety. These are the only categories available for this type of no contact order. It is not available if the ex keeps calling, threatens to take the kids, calls your family to tell them you are a bad person, or a whole list of other annoying, objectionable, but not threatening, behaviors. 


The form then asks for narration of what has happened in the abuse or threats. This is the chance to tell the judge your story. Remember the Defendant will also receive a copy of this form. You may attach additional paper to ensure your entire story is heard, so do not leave out incidences for lack of space.


You can request, as part of this application, to have mutual children's visitation and contact considered. Most likely, the Judge will simply make sure exchanges of the children for visitation do not violate the no contact orders, by figuring out a different exchange schedule. The Court might figure out a visitation schedule in the very short term, but generally will want this to be determined in a custody case rather than a no contact order case. 


Two types of no contact orders can stem from this application. The first is an emergency or temporary no contact order. It would be in effect from the time of the application for about two weeks. It is ordered based on the written application only, without the chance for the Defendant to respond. This is the reason for its short duration. It can also request possession of the house, financial support, and custody of the children.


Those provisions are also available in the permanent no contact order. This will last for one year, but a hearing has to be held first, where the Defendant will get to speak and argue against it. At the end of the year, an extension can be granted if needed.


Two more things about no contact orders. First, if you decide the no contact order is not helpful or is causing more trouble than good, you will have to ask the Court to drop it, which the Court may or may not do. The Court will want to make sure you are making the right decision. Second, while this paper says the Defendant cannot contact you, it really only gets that person arrested if he or she does contact you. So be safe before that happens to prevent even worse consequences from arising before the police can be called.