Q. WHAT IS THE DIFFERENCE BETWEEN A DISSOLUTION AND LEGAL SEPARATION?
A. They are essentially the same in that the court is asked to decide how custody, support, property, and debts should be handled. The main difference is in the final result. In a legal separation, the couple stays married since the marriage is not dissolved. Often times a petition for separate maintenance is used when a parties religious beliefs prohibits them from obtaining a divorce.
Q. WHO CAN FILE FOR DISSOLUTION IN IOWA?
An individual can file for a dissolution of marriage in Iowa as long as:
1. The person filing the petition for dissolution has lived in Iowa for at least one year prior to filing the action, unless:
2. The spouse of the individual is currently a resident of Iowa and is personally served with notice of the action or you don't where your spouse is currently living. An Individual can still file for a dissolution but service on the individual's spouse is done differently. Service would need to be done by publication. The court may be somewhat limited in the types of things it can order in a final decree.
Q. WHAT IS THE TIME FRAME FOR COMPLETING A DISSOLUTION?
There is a 90 day waiting period in the State of Iowa. This period starts running when the other party has been served or has received notification of the pending action.
CAN ONE ATTORNEY REPRESENT BOTH OF US DURING THE DIVORCE?
One attorney cannot represent both parties in a family law matter as it is a violation of the ethical rules.
Q. CAN I CHANGE MY NAME IN A DISSOLUTION ACTION?
A party can request to be returned to her maiden name or any previously used and legally recognized name through the dissolution action.
Q. WILL I BE REQUIRED TO ATTEND MEDIATION?
In the Sixth Judicial District, mediation is required prior to the paries obtaining a trial date and prior to any temporary hearing being held if the temporary hearing involves issues of custody and/or visitation of minor children, If the parties can agree on a settlement prior to the need to obtain a trial date, attendance of mediation is not needed.
Q. HOW WILL THE COURT DECIDE WHO GETS CUSTODY OF THE CHILD(REN)?
The court considers what is in the best interests of the child(ren). The court considers many factors to try to determine which parent would be best suited to meet the needs of the child(ren) and also support a relationship between the child(ren) and the other parent.
Q. WHAT IS JOINT PHYSICAL CARE/SHARED CARE?
With a shared custody arrangement, the parties have the child(ren) approximately equal amounts of time in their individual homes.
Q. WHAT IS JOINT LEGAL CUSTODY?
The law in Iowa favors joint legal custody unless there is domestic abuse. Joint custody means that both parents are able to participate in making the decisions which effect the child(ren) such as medical care, education, schooling, extra curricular activities, and religion. Under standard joint custody, one party may be awarded primary physical care and the other party will be granted visitation.
Q. WHAT IS SOLE CUSTODY?
Sole custody is when the court feels that one parent should be making decisions affecting the children. The court, to grant sole custody, must cite clear and convincing evidence that joint custody is unreasonable and not in the best interests of the child(ren). A parent who has sole custody will be responsible for the physical care and for all decisions affecting the child's or children's welfare.
Q. DO I HAVE TO ATTEND ANY TYPE OF CLASS IF I HAVE CHILDREN?
The parties to any family law action that involves issues of child custody or visitation will be required to participate in a course which is geared to educate the parties as to the needs of the child(ren) during a dissolution proceeding.
Q. WHAT DOES THE COURT CONSIDER WHEN MAKING A DECISION ON CUSTODY?
Under Iowa law the court considers the following factors:
a. Whether each parent would be a suitable custodian for the child(ren).
b. Whether psychological and emotional needs and development of the child(ren) will suffer due to lack of active contact with and attention from both parents.
c. Whether the parents can communicate with each other regarding the child's or children's needs.
d. Whether both parents have actively cared for the child(ren) before and since the separation.
e. Whether each parent can support the other parent's relationship with the child(ren).
f. Whether the custody arrangement is in accord with the child's or children's wishes or whether the child(ren) has/have strong opposition, taking into consideration the child's or children's age(s) and maturity.
g. Whether one or both the parents agree or are opposed to joint custody.
h. The geographic proximity of the parents.
i. Whether the safety of the child(ren), other children, or the other parent will be jeopardized by the awarding of joint custody or by unsupervised or unrestricted visitation.
j. Whether a history of domestic abuse exists. In determining whether a history of domestic abuse exists, the court's consideration shall include, but is not limited to, commencement of an action pursuant to section 236.3, the issuance of a protective order against the parent or the issuance of a court order or consent agreement pursuant to section 236.6, the issuance of an emergency order pursuant to section 236.6, the holding of a parent in contempt pursuant to section 236.8, the response of a peace officer to the scene of alleged abuse or the arrest of a parent following response to a report of alleged domestic abuse, or a conviction for domestic assault pursuant to section 708.2A.
Q. WHAT DOCUMENTS ARE REQUIRED BY THE COURT IN A DISSOLUTION OF MARRIAGE ACTION?
In the Sixth Judicial District which encompasses Benton, Iowa, Johnson, Jones, Linn and Tama Counties, requires the following documentation to be exchanged between the parties:
1. Pay stubs or other documentation showing income from all sources including all deductions for federal and state taxes, health insurance premiums, union dues, mandatory pension withholdings for the past six (6) months;
2. Federal and state income tax returns, including all schedules and W-2's for the last five (5) years.
3. The legal description and all appraisal and/or market analysis for all real estate owned jointly or separately;
4. Current value statements on all investments, including not necessarily limited to stocks, bonds, mutual funds, life insurance policies, bank accounts held jointly and individually;
5. Current value statements and plan documents for all IRS accounts, retirement plans, 401k's, deferred compensation, savings plans and any other similar plans;
6. Current or other documentation of all indebtedness incurred individually or jointly;
7. An Affidavit of Financial Status, and child support guideline worksheets if applicable;
8. Any documentation establishing a claim that assets or debts are gifted or inherited property or are premarital property;
9. Any prenuptial agreements between the parties; and
10. Documentation on the value of any other assets or the amount of any other indebtedness not specifically requested above, whether individually or jointly owned or owed.
Q. WHAT OTHER DOCUMENTS WOULD BE NEEDED?
In the event that your case involves a child custody issue, the following documents would be needed:
1. Photographs depicting activities with you and the child(ren);
2. Any correspondence that speaks positively of your ability to parent;
3. Any correspondence which may reflect on the other parties lack of ability to parent;
4. Any and all report cards or other information from the child's or children's school;
5. School attendance records, school calendar;
6. Any conference notes or evaluations by the school teacher or counselors at school;
7. Therapist notes in the event the child(ren) is/are involved with counseling or therapy.
Q. WHAT ARE THE COURT COSTS INVOLVED IN FILING FOR DISSOLUTION OF MARRIAGE?
At the present time the filing fee which must be paid to the Clerk of Court is $185.00. In the event your spouse is willing to accept the petition for dissolution of marriage there would be no sheriff or process server fees. In the event your spouse will not voluntarily sign an acceptance of service of the petition, service fees would be anywhere from $25-$50.
Q. HOW ARE ASSETS AND DEBTS OF THE MARRIAGE DIVIDED IN A DISSOLUTION OF MARRIAGE CASE?
The court is required to make an equitable distribution of marital assets between the parties. Equitable does not necessarily mean equal, however, the court has generally stated it should be a general goal of the trial court to make the division of property approximately equal.
Q. WHAT FACTORS ARE CONSIDERED IN THE DIVISION OF MARITAL PROPERTY?
Iowa Code sets forth the factors that the court is to consider:
1. The length of the marriage.
2. The property brought to the marriage by each party.
3. The contribution of each party to the marriage, giving appropriate economic value to each party's contribution and homemaking and child care services.
4. The age, emotional and physical health of the parties.
5. The contribution by one party to the education, training or increased earning power of the other.
6. The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
7. The desirability of awarding the family home or the right to live in the family home for a reasonable period to the party having custody of the children, or if the parties have joint legal custody, to the party having physical care of the children.
8. The amount and duration of an order granting support payments to either party and whether the property division should be in lieu of such payments.
9. Other economic circumstances of each party, including pension benefits, vested on unvested, and future interest.
10. The tax consequences of to each party.
11. Any written agreement made by the parties concerning property distribution.
12. The provisions of an antenuptial agreement.
13. Other factors the court may determine to be relevant in an individual case.
Q. WHAT ARE PREMARITAL AGREEMENTS?
As noted, premarital agreements are one of the factors considered by the court in dividing assets between the parties. A premarital agreement is an agreement to determine in advance how the future husband and wife's property will be divided in the event of death or in the event of a dissolution of marriage. Generally, a premarital agreement is binding unless there is an allegation of fraud, mistake or undue influence. Iowa has a statute specifically addressing premarital agreements.
Q. HOW ARE ASSETS OWNED PRIOR TO MARRIAGE TREATED IN A DISSOLUTION?
Premarital assets are not necessarily given the same treatment as inherited property. The division of premarital assets are determined on a case-by-case basis. However, the court generally considers the length of marriage, the parties contributions during the marriage, and their share of premarital assets.
Q. HOW ARE GIFTED AND INHERITED PROPERTY TREATED IN A DISSOLUTION OF MARRIAGE?
Generally, gifted and inherited property are to be set aside to the party receiving the gift or inheritance. The court, however, has the power to divide gifted or inherited property if it finds that said property would be unfair to either party. In addition, the court considers the following factors in determining whether or not gifted or inherited property should be divided:
1. The length of the marriage;
2. Contributions made by each party towards the property's care, preservation, or improvement;
3. The co-mingling of gifted and inherited property with other marital assets, i.e. assets owned by the parties during the marriage.
Q. WHAT IS A QUALIFIED DOMESTIC RELATIONS ORDER?
A Qualified Domestic Relations Order, commonly referred to as a "QDRO" is a domestic relations order that assigns to an alternate payee the right to receive all or a portion of the benefits payable with respect to a participant under a pension plan.
Q. HOW ARE RETIREMENT BENEFITS DIVIDED?
Federal law dictates that a pension plan can only be divided if the court enters an order dividing the pension benefits. This order is referred to as a Qualified Domestic Relations Order (QDRO). In essence, the QDRO directs the plan administrator of the pension benefit to divide the pension. The QDRO cannot dictate to the plan administrator to do something that the plan administrator cannot do under federal law or is contrary to the plan.
The type of QDRO also depends on whether or not the plan to be divided is known as a "defined benefit plan" or a "defined contribution plan". Under a "defined benefit plan" the future benefits to be received is specified in advance and defined by a benefit formula or benefit schedule. A "defined contribution plan" generally sets forth that the participant in a plan will receive either monies in one lump sum or in the form of an annuity at a certain age.
Q. HOW ARE IPERS (Iowa Public Employees Retirement System) TO BE DIVIDED?
Although not federally mandated, an IPERS account may be divided via a Qualified Domestic Relations Order (QDRO).
Q. HOW ARE IRA'S DIVIDED?
Qualified Domestic Relations Order (QDRO) is not needed for the division of IRA's. Generally speaking, the decree itself will allow for the division of the Individual Retirement Account.
Q. HOW IS DEBT DIVIDED?
As with division of marital assets, debts are divided in such a way as to constitute a just and equitable result in light of the property division. It should be noted, however, that the division of debt clearly depends on the particular circumstances of each specific case and in light of the reasons for generating the debts.
Q. AM I ENTITLED TO OR OBLIGATED TO PAY ALIMONY?
Iowa Code § 598.21.A(1) sets out the factors to be used by the court in determining whether or not alimony should be awarded:
1. The length of the marriage.
2. The age and physical and emotional health of the parties.
3. The distribution of property made pursuant to subsection1.
4. The educational level of each party at the time of the marriage and at the time the action is commenced.
5. The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of the absence from the job market, responsibilities for children under either an award of custody or physical care, and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment.
6. The feasibility of the party seeking maintenance becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and the length of time necessary to achieve this goal.
7. The tax consequences to each party.
8. Any mutual agreement made by the parties concerning financial or service contributions by one party with the expectation of future reciprocation or compensation by the other party.
9. The provision of an antenuptial agreement.
10. Other factors the court may determine to be relevant in an individual case.
Q. WHAT ARE THE DIFFERENT TYPES OF ALIMONY?
1. Traditional alimony is awarded for life or so long as the spouse receiving support is incapable of self support. Traditional alimony is designed to provide the spouse with support comparable to what he or she would receive if the marriage continued.
2. Rehabilitative alimony is generally designed to allow the recipient spouse to become self supporting. It is for a limited amount of time so as to allow the recipient spouse to get further education or retraining so as to be able to increase earning potential.
3. Reimbursement alimony is a type of alimony to recognize the economic sacrifices by one spouse during the marriage that enhances the other souse's earning capacity. A good case for reimbursement alimony would be a situation where one party worked during the marriage so the other party could earn an advanced degree, i.e. medical degree, law degree, masters of business, etc.
Q. LEGAL DOCUMENTS AND THEIR MEANING:
1. Petition: A petition initiates the dissolution proceedings and identifies what the Petitioner is requesting.
2. Original Notice: The original notice is a form signed and sealed by the Clerk of Court which informs the Respondent that the Petition has been filed and provides the name and address of the attorney representing the Petitioner. It also notifies the Respondent that he/she must file an answer or motion within 20 days after the date of service or a default judgment can be entered.
3. Return of service: This is the document filed by either the Sheriff's office or the process server reflecting who, what, when, where, and how a person has been served with legal documents.
4. Affidavit: An affidavit is statement of facts which are verified by one of the parties and submitted to the court in support of a motion or an order.
5. Motion: A motion is a legal pleading requesting that the court issue an order.
6. Answer: One the Respondent has been served with a Petition for Dissolution of Marriage and Original Notice, the Respondent may file a denial of the allegations which have been set forth in the Petition.
7. Interrogatories: These are simply questions in writing directed to the other party.
8. Request for Production of Documents: This is a request by one party to the other to produce documents relevant to the issues raised in the Petition and the Answer.
9. Request for Admissions: These are usually used to establish certain factual proposition that relate to a case including the genuineness of any document described in the request.
10. Deposition: This is the testimony of a party or witness in a civil or criminal proceeding taken before trial. deposition testimony is taken orally with an attorney asking the questions and the deponent answering while a court reporter or tape recorder records testimony.
11. Stipulation: A stipulation is a written agreement between the parties memorializing their settlement.
12. Decree: The decree is a formal order of the court either incorporating the terms of the Stipulation reached between the parties or entered after trial delineating the parties respective rights and obligations.
13. Jurisdiction: A petition for dissolution of marriage may be brought where either party resides.
Q. CONTENTS OF A PETITION
The Iowa Code sets forth what needs to be included in a petition:
1. State the name, birth date, address, and county of residence of the petitioner and the name and address of the petitioner's attorney.
2. State the place and date of marriage of the parties.
3. State the name, birth date, address and county of residence, if known, of the respondent.
4. State the name and age of each minor child by date of birth whose welfare may be affected by the controversy.
5. State whether or not a separate action for dissolution of marriage or child support has been commenced and whether such action is pending in any court in this state or elsewhere. State whether the entry of an order would violate U.S.C.§1738B6. If there is an existing child support order, the party shall disclose identifying information regarding the order.
6. Allege that the petition has been filed in good faith and for the purposes set forth therein.
7. Allege that there has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no likelihood that the marriage can be preserved.
8. Set forth any application for temporary support of the petitioner and any children without enumerating the amounts thereof.
9. Set forth any application for permanent alimony or support, child custody, or disposition of property, as well as attorneys' fees and suit money, without enumerating the amounts thereof.
10. State whether the appointment of a conciliator pursuant to section 598.16 may preserve the marriage.
11. Except where the respondent is a resident of this state and is served by personal service, state that the petitioner has been for the last year a resident of the state, specifying the county in which the petitioner has resided and the length of such residence in the state after deducting all absences from the state, and that the 6This statute, which is entitled "Full faith and credit for child support order," addresses when the Court of the State may modify a child support order issued by another State, how to resolve conflicts between child support orders from different states for the same obligor and child, and choice of law (i.e., forum state and issuing state). maintenance of the residence has been in good faith and not for the purpose of obtaining a dissolution of marriage only.
In addition, to the above, section 598B requires that in the event there are children involved that the child's present address, together with the places where the child and/or children have lived during the last five years be listed, together with the names and addresses of any and all persons with whom the child or children have been living during that period. In addition, the Code requires the petitioner to state whether he/she has or knows all of the following:
1. Has participated, as a party or a witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any.
2. Knows of any proceeding that could affect the current proceedings, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding.
3. Knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.
Q. WHAT IS AN ANNULMENT?
An annulment is an order of the court setting forth that the marriage is void. The Code sets forth the grounds for an annulment:
1. The marriage between the parties was prohibited by law.
2. The Petitioner or Respondent was impotent at the time of marriage.
3. The Petitioner/Respondent was mentally ill or mentally retarded at the time of the marriage.
4. The Petitioner/Respondent had a spouse living at the time of marriage and the parties have not, with a knowledge of such fact, lived and cohabited together after the death or marriage dissolution of the former spouse of such party.
5. The Petitioner reasonably believes that the Respondent had a spouse living at the time of the marriage.
Q. WHAT IS A QUIT CLAIM DEED?
A quit claim deed is a deed given pursuant to either stipulation of the parties or a decree transferring any and all interest in real estate from one party to the other.
Q. WHAT IS AN ORDER FOR INCOME WITHHOLDING?
This is an order assigning the income of an obligor (payer) of a support obligation.
Q. CHILD SUPPORT:
A. It is common sense, as well as established law, that a parent is obligated to support his or her child. The obligation to support a child is the responsibility of both married and unmarried parents. In 1995 the Supreme Court adopted child support guidelines which have been modified over the years. There is a presumption that the guidelines will calculate the correct amount of child support due and owing from a parent on behalf of the child, however, the court has the ability to vary the guidelines in certain circumstances. Specifically, if the court determines that an order of support would be unjust or inappropriate as determined by the following:
1. Substantial injustice would result to the payee, payer or to the child;
2. Adjustments are necessary to provide for the needs of the child and to do justice between the payer or payee under certain circumstances of the case.
In determining child support, income of the parents must first be established. The court, in determining child support, is attempting to delineate net monthly income. unfortunately, trying to determine what the net income is sometimes is difficult due to a variety of circumstances.