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.
Wednesday, May 23, 2012
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.
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.
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.
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.
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.
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:
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:
- The length of the marriage
- The age and physical and emotional health of the parties
- The property distribution [including if inequities still exist after the division]
- The educational level of each party at the time of marriage, and now
- 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
- 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
- Tax consequences to either party
- Any agreement between the parties, such as future compensation or reciprocity for support of the other spouse during the marriage
- Any prenuptial/antenuptial agreement
- 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.
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