The following information pertains to IOWA only.
Each state has its own code governing divorce, and the law in another state can be very different from Iowa's.
The following general information is not intended as legal advice or to substitute in any way for legal advice from an attorney. It is offered as a service to our clients to answer some frequently asked general questions and explain typical legal issues encountered during a dissolution of marriage proceeding. Every dissolution of marriage proceeding is different, and it is crucial that you avoid making any decisions based solely on the information contained in this handout – your attorney must know the specifics of your case before he or she can intelligently advise you.
Iowa is a "no fault" divorce state. This means that if either you or your spouse wants a divorce, either of you can get one – neither of you have to prove that the other did anything wrong, and one spouse can't stop the divorce just because he or she doesn't want to be divorced. This also means that even if you really want to drag your spouse through the mud, you probably won’t be allowed to unless his or her faults are relevant to disputed issues other than the divorce itself (e.g., custody).
Note that if your spouse IS NOT a resident of Iowa, then you can't file a divorce petition in Iowa until you've lived in Iowa for at least one year. If both you and your spouse currently reside in Iowa, then it doesn't matter how long you've lived here -- i.e., you can file for divorce even if you've only lived in Iowa for a few months.
There is a mandatory 90-day waiting period for divorces in Iowa. A divorce proceeding is initiated by filing a Petition for Dissolution of Marriage with your local clerk of Court. Then, your spouse must be served with the Petition and an Original Notice -- he or she can either accept service, or he or she can be served by a deputy sheriff or civil process server. Ordinarily, the divorce cannot be finalized until at least 90 days have passed from the date that your spouse was served or accepted service. Of course, it can take much longer than 90 days to finalize a divorce if the parties disagree about custody, alimony, and/or property. In some very rare cases, the judge will waive the 90-day waiting period and finalize the divorce proceeding sooner; however, this is very unusual, so it is best to assume that it will not happen in your case.
People often want to know if there is some way to get their spouse out of the house during the 90-day waiting period. The answer is usually no. If you are being physically abused by your spouse, you may be able to get a "protective order" from the judge ordering your spouse out of the house; however, judges are reluctant to do this in divorce cases because of their suspicion that people are making things up in order to get their spouse out of the house. This means that, unless you can prove that your spouse is physically abusing you and/or your children, you may have to put up with your spouse (or leave the home yourself) if your spouse won't leave the home voluntarily. It can be very, very unpleasant to continue to live in the same home as your spouse while you are going through a divorce, but often there is nothing that can be done about this.
People often want to know if they can get their spouse removed from the home during the pendency of a divorce proceeding if he or she is being "psychologically" abusive. This is certainly a possibility; however, normally, it has to be a lot more than the spouse just being nasty.
Sometime after the 90 day waiting period has run, if your spouse hasn't retained an attorney, you and your lawyer will go before the judge with a decree and the judge will (usually) sign it. This is called a "default" divorce. If your husband does get a lawyer at any time during the 90 day waiting period, the divorce can't be finalized until the parties come to an agreement about the issues. If an agreement can't be reached, there is a trial and the judge decides the issues in dispute. Since it is usually not possible to get a trial date until two to three months after the 90 day waiting period is up, MOST DIVORCES ACTUALLY TAKE CONSIDERABLY LONGER THAN 90 DAYS TO FINALIZE.
You may wonder if you will be eligible for alimony. There is no hard and fast rule dictating who does or does not get alimony—it is one of the issues left to the judge’s discretion. Having said that, it is my experience that in the past ten years, it has been getting more difficult to persuade a judge to award alimony, especially permanent alimony (see below). If alimony is an issue in a divorce, you can be reasonably assured that your case will not be uncontested—the other side usually will not simply agree to an alimony award. If it necessary to call expert witnesses to testify about your earning potential, health problems, etc., then a case involving alimony can become very expensive.
There are different kinds of alimony. " Permanent " alimony means long termalimony that usually lasts until the payor's death or the remarriage of the payee. Normally this type of alimony is awarded (if it is awarded at all) in a long-term marriage in which tone spouse earns considerably more than the wife. " Rehabilitative " alimony is alimony paid for a set, usually short, period of time (e.g., two years) to allow the payee to do something (e.g., go back to school, go back to work) to raise his or her standard of living, so that he of she won't need to be financially dependent on the ex-spouse in the future. This type of alimony is typically awarded in shorter-term marriages where one spouse has been at home caring for the children, and thus doesn't have the sort of job skills or experience that translate into immediate good employment. There is also " reimbursement " alimony—this might be appropriate when one spouse obtains an advanced degree while being supported by the other, and the marriage terminates before the working spouse can reap any of the financial benefits of his or her sacrifice. A judge can award one kind of alimony, or a combination of two or three different kinds.
In deciding whether to award alimony, a judge considers many different factors, which can interact with one another in complicated ways. Some of the factors that a judge might consider are:
The age of the parties—Obviously, it's typically going to be harder for a 60-year-old person to start over financially than for a 25 year old person.
The financial situation of the parties—This is probably the most important factor. If your spouse has a great job and is making a lot of money and you have a minimum wage job with no benefits, you are more likely to get alimony. If you both have great jobs, the judge may decide you don't need alimony, even if it is a long-term marriage and you are 60 years old. Note, though, that if your spouse doesn't have much money, even if you meet all the other criteria, you probably won't get alimony because the judge won't order someone to pay what he or she doesn't have.
Child custody fights are extremely expensive, time-consuming, and often destructive to everyone involved. If it is at all possible, it is best to work out custody without going to trial. Sometimes, however, this simply isn’t possible.
In Iowa, the law says that parents should be awarded “joint legal custody” of their children unless there is some good reason to award sole legal custody to one party. “ Joint legal custody ” means an award of legal custody of a minor child to both parents jointly under which both parents have legal custodial rights and responsibilities toward the child and under which neither parent has legal custodial rights superior to those of the other parent. Rights and responsibilities of joint legal custody include, but are not limited to, equal participation in decisions affecting the child’s legal status, medical care, education, extra-curricular activities, and religious instruction. This could be interpreted as requiring the custodial parent to consult with the non-custodial parent about virtually everything the child does; however, it is usually interpreted to require only that the custodial parent to consult with the non-custodial parent about “big” things (although what constitutes a “big” thing is a very gray area).
One parent or the other is occasionally granted sole legal custody of the child. This is very unusual; some situations in which sole custody might be granted are when there has been documented physical, sexual, or emotional abuse of the child by a parent, abandonment by one of the parents, or the parents hate each other so much that there is no way they could possibly discuss the child’s best interests in any rational manner. It used to be the norm that sole custody was awarded to one parent or the other; now joint legal custody is the norm.
Primary Physical Custody Considerations
When the parties are granted joint legal custody of their child, one party is usually granted primary physical care and custody of the child—this person has the right and responsibility to maintain a home for the child and provide for the child’s routine care. The other party is granted visitation (and ordered to pay child support). Who gets primary physical custody of the child, and/or what the visitation schedule should be, are the main issues of most custody fights.
A judge decides which parent should be the primary physical custodian based on “the best interests of the child(ren).” There are many factors that a judge takes into consideration when determining the best interests of a child. These include:
1. Which parent has been the child’s primary caretaker during the marriage?
Which parent usually made the doctor’s appointments and took the child to see the doctor? Which parent usually put the child to bed and got him or her up and dressed in the morning? Which parent usually fixes the child’s meals? Which parent is responsible for taking the child shopping for new clothes, toys, school supplies, etc.? Which parent usually stayed home from work if the child was sick? In other words, which parent has primarily dealt with the child's day-to-day needs during the marriage? In past decades, this has usually been the mother; however, as husbands become more involved in the raising of children this is no longer always the case.
2. Which parent can provide the child with the most stable and secure environment?
It is important for children to feel that they have a secure, stable home in which to live, and that their custodial parent will protect them from any danger. Sometimes, one parent clearly has a more stable lifestyle than the other does; most of the time, however, it’s a close call. Some things that a judge might feel indicate instability: if a parent is using drugs or has a recent criminal conviction for just about anything; if a parent is going out with or living with a new boyfriend/girlfriend before the divorce is final (this should probably be avoided if you anticipate a custody dispute); if a parent has a history of being unable to hold a job; if a parent has a history of domestic abuse; if a parent walked out on the child and the other parent; if a parent has a problem with alcohol to the point that it has affected the child in the past; if a parent uses inappropriate language around the child or discusses inappropriate things with him or her (e.g., dad tells the kids that he has to move out because mommy hates him). The shift a parent works can be relevant to the ability to care for one’s child – if a person works second shift and is involved in a custody fight, he or she would be well advised to attempt to rearrange his or her work schedule. If one parent works full time and the other parent is in school or only works part time, that parent probably has more time to spend with the child, which gives him or her an advantage. This may not seem fair to the working parent, but the judge is looking for what’s best for the child.
Family involvement also is relevant to the issue of stability/security. In reaching a decision involving custody, a judge will look at the emotional and familial support systems that each parent has and can offer to the child. If mom grew up in Iowa City, all her family is here, and mom and the kids see their maternal relatives all the time, mom has an advantage over dad, who grew up in California and rarely talks to his parents. If a parent is totally estranged from his or her family (hates them and never talks to them) then a judge is going to wonder why.
3. Which parent is most capable of encouraging a strong relationship between the child and the non-custodial parent?
The custodial parent has an obligation to do everything he/she can to maximize the child’s opportunities for visitation with the non-custodial parent. The Iowa Code states that “the best interests of the child includes, but is not limited to, the opportunity for maximum continuous physical and emotional contact possible with both parents, unless direct physical or significant emotional harm to the child may result from this contact. Refusal by one parent to provide this opportunity without just cause shall be considered harmful to the best interests of the child." If one spouse involved in a custody dispute constantly bad mouths the other spouse in front of the children or attempts to restrict or prevent temporary visitation for no valid reason, the judge will consider that behavior when deciding to whom permanent physical custody will be granted. No matter what you think of your soon-to-be ex-spouse (or his or her significant other), you need to keep it to yourself as far as your children are concerned and do what you can to convince them that visitation with their mom/dad is the best thing since sliced bread. Judges really, really dislike any behavior, subtle or overt, on the part of the custodial parent that causes problems between the child(ren) and the non-custodial parent. Note that such behavior is often difficult to prove without putting the child on the stand—i.e., you may know mom is saying mean things because the kids tell you so when you have visits with them, but mom is no doubt going to deny it at trial. Bottom line, studies have shown that it really, really hurts the kids to be put in the middle of this type of situation—to have to listen to mom and/or dad say mean things about the other parent -- so don’t do it.
4. With which parent does the child wish to live?
Believe it or not, there is no magic age in Iowa at which children are allowed to decide with whom they will reside . Children, even teenagers, do not get the final say concerning with whom they live; however, the judge will give their preferences some consideration in certain cases. Young children will usually not be allowed to testify or offer an opinion—the general belief is that they are too young to know what’s best for them, and are too easily influenced by one or the other parent. Once a child becomes a teen-ager, however, the judge will usually allow him or her to testify in a custody dispute, although judge almost always discourage such testimony. This is sometimes done in the judge’s chambers with only the attorneys present so the child does not feel bad about hurting one parent’s feelings, but most judges requires the child to testify in open court. Obviously, forcing a child to choose between parents should be avoided at all possible costs – it is much better for the parents to present the living arrangements to the children as a done deal, thereby relieving the children of any responsibility for the decision. Studies have shown that forcing children to choose between parents, even when the choice is an obvious one, often causes the child to experience serious feelings of guilt, shame, and sadness—so don’t do it. If it is clear that a child has strong feelings about where he or she wants to know, let your attorney know this, but try not to talk about it with the child. Let the child know that mom and dad and the judge will handle the situation. NEVER suggest to your child that he or she can decide where he or she wants to live, because this is just not true.
5. Does either parent smoke?
If mom smokes and dad doesn't, or the other way around, this will factor into the judge's decision on custody. Second hand smoke has become a big issue, and parents who smoke around their children—especially infants and toddlers—can be considered to be putting their children's health at risk. Even if you swear that you only smoke outside, or when the child isn’t around, the judge probably won’t believe you. If your child has a history of respiratory problems, and you smoke, you will be at a huge disadvantage in a custody dispute. So stop. Even if your child doesn’t have respiratory problems, and you smoke, and your spouse doesn’t, this will put you at a big disadvantage in a custody dispute. So if you are serious about gaining custody of your children, you shouldn’t smoke. Period. Nor should you allow your parents, your new significant other, or any child care providers to smoke around your child.
Shared physical custodyis the term for a custody arrangement in which both parties share legal and physical custody of the child. In the past, this was very rarely done in Iowa, as it is generally considered to be more emotionally healthy for a child to have one primary home, instead of going back and forth all of the time. However, in the past few years judges have begun to be willing to at least consider shared physical custody in certain limited situations , and the Iowa Legislature recently passed a law requiring judges to give consideration to a shared physical custody arrangement even if one parent objects. Obviously this arrangement works best when both parents are requesting and/or agreeing to the shared physical custody arrangement. Another factor with shared physical custody is that it is normally appropriate only if the parents live close to one another, preferably in the same school district, and if each is very supportive of the other parent’s relationship with the child.
Shared physical custody is sometimes appropriate with very young children (i.e., 0-4). The advantages are that the children are not yet in school, so they have a more flexible schedule; also, studies have shown that it is very important for infants and toddlers to spend a lot of time with both parents in order to allow bonding to take place. Shared physical custody can also be appropriate with older children (high school age), because they are old enough to understand the situation and speak up if they have any problems or questions.
Childsupport gets tricky with shared physical custody. If the parties earn close to the same amount, sometimes the court will not order support. If one party earns more than the other, then the Court will calculate the support as if mom had the kids, then as if dad had the kids, then subtract the smaller number from the larger number; the parent earning more pays the difference (i.e., an offset). The parents must address the issues of who pays for clothes, school activities, extra curricular stuff, birthday presents, etc.
Unfortunately, it has been my experience that shared physical custody is difficult to maintain over an extended period. Theoretically, shared physical custody is a great idea; in reality, it may be more than many divorced parents can handle. Be aware that even if you and your spouse both want and agree to a shared physical custody arrangement, the judge may refuse to approve it -- you may have to convince a judge that you and your soon to be ex-spouse can handle the ongoing communication and contact that shared physical custody requires.
Parents sometimes wish to split up siblings—e.g., mom takes the girls and dad takes the boys. This is generally not accepted by the courts; there is a presumption that siblings should grow up in the same household. Occasionally a special set of circumstances will arise so that this is an acceptable and appropriate arrangement; you need to discuss your particular circumstances with your attorney if you are interested in this type of custody arrangement. Again, even if both parents want split custody, the judge can refuse to approve such an arrangement.
It used to be that the non-custodial parent was awarded visitation consisting of "every other weekend, and alternate holidays" -- that was the standard visitation schedule, and normally judges didn't deviate much from it absent pretty extraordinary circumstances. These days, judges are more willing to award much more liberal visitation, and to work with the parents' employment schedules to attempt to maximize both parents' quality time with the children. This means that if you are the primary caretaker, you should assume that if your spouse wants it, he or she is going to get more than the standard, every other weekend visitation; if you are the non-custodial parent, be aware that you can ask for more than the standard visitation (but don't ask for it unless you intend to actually exercise it once you get it).
The non-custodial parent is usually awarded an extended period of summer visitation -- this can be anything from a week to half the children's summer vacation (or even more if the parents live far apart and thus the non-custodial parent isn't able to see the kids during the school year). The non-custodial parent will also be awarded visitation on alternate holidays, which can include winter and spring breaks from school, the children's birthdays, and any other holiday you can imagine. It is always best for the parents to work together to maximize the kids' enjoyment of holidays and other special days, and some parents do very well at cooperating with each other so that both parents (and both extended families) get to spend time with the kids on holidays -- this is certainly in the kids' best interests.
Note that depending on the ages of the children and the parents' circumstances, judges will sometimes award overnight, mid-week visitation -- i.e, the non-custodial parent will get the kids on Wednesday and take them to school on Thursday morning. Some children have special issues that might make this inappropriate --e.g., ADHD kids often need a lot of stability and consistency during the school week in order to do well in classes. Also, this arrangement will only work if the non-custodial parent is in a position to get the kids to school in the morning in a timely fashion, and is responsible enough to make sure they do their homework the night before and are dressed and fed appropriately in the morning.
Sometimes a custodial parent wants the other parent to have only supervised visitation, or no overnight visitation, or some other type of restricted visitation arrangement. Judges presume that both parents love their children and will do what is needed to keep the children safe, and that both parents should have maximum access to their children, so in order to get a judge to restrict a parent's visitation with a child, you must be able to show the judge solid evidence that the other parent actually does pose some kind of danger to the child such that restricted visitation is necessary to protect the child. One of the concerns that I hear most often is that the other parent will take the child and flee the state -- but unless there is evidence to support this concern, the judge usually isn't going to give it much weight (although a judge often will enter an order that neither parent can remove the child from the state of Iowa during the pendency of the divorce proceeding without the permission of the other parent).
Once the divorce if finalized, each parent is usually allowed to decide with whom the child spends time when the child is in his or her care. You may not like your ex-husband's new girlfriend, but unless she poses some kind of actual risk to your children, you aren't going to be able to keep her away from your children when they are with their dad. If the non-custodial parent has to work or run errands during his or her visitation time, he or she normally gets to choose the babysitter, as long as it is a suitable caretaker for the kids. Occasionally a judge will require that each parent give the other parent "first right of refusal" to provide babysitting services -- I don't particularly approve of this, as I believe it gives both parents way too much information about the other parent's social life.
Every person going through a divorce or custody proceeding in Iowa must attend a three hour class called “Children in the Middle.” Usually, the judge won’t finalize the divorce or custody proceeding until both parties have attended. The class is held at least once a month at various locations.
The non-custodial parent will almost always be ordered to pay child support. Child support is set using statutory guidelines (rules set out by the law). The parties’ incomes and number of custodial children are plugged into a formula; the result is the percent of his/her net (after taxes) income that the non-custodial parent must pay to the custodial parent. For one child it is in the neighborhood of 20% of the net monthly income; for five children, it is about 45% of the net. The custodial parent does not have the right to agree to a child support amount that is lower than the statutory guidelines; the parties can request that the judge deviate from the guidelines and set a lower support amount, but the judge won’t do it unless he or she is given a really good reason (e.g., the non-custodial parent baby-sits the child every day for five hours). One reason for this reluctance to deviate from the statutory guidelines is to avoid once common scenarios in which one parent basically “bought” custody of the children from the other parent in exchange for an agreement to waive child support.
If a non-custodial parent is awarded more than typical visitation, he or she might be entitledto a deduction of up to 25% in his or her child support obligation -- for example, if a non-custodial parent has the children overnight more than 127 nights a year, his or her support obligation can be decreased by 15%.
Child support can be increased or decreased as the income of the non-custodial parent changes; unfortunately, unless the non-custodial parent will voluntarily agree to a change, it has to be done by filing an application for modification and setting a court hearing, which costs money. The non-custodial parent can be ordered to pay your attorney fees if he or she was unreasonable in insisting on a hearing. Under certain circumstances you may request that your local Iowa Child Support Recovery Unit conduct an administrative "review and adjustment" of your child support obligation. Note that there is a nominal fee for this service and the process can take quite a long time.
When computing child support, the judge will usually factor at least some of the overtime pay and bonuses into the non-custodial parent’s income. If the non-custodial parent has a second job that he or she has held for some time (e.g., National Guard), the judge will usually factor at least some of this income into the child support calculation as well. In other words, the non-custodial parent needs to be paying a certain percentage of his or her total net income to the custodial parent. The non-custodial parent who works a lot of overtime often, understandably, feels that this isn’t fair—what if he or she wants to stop working overtime, to spend more time with the child? Probably, there’s not much that can be done; if you’ve worked it on a regular basis in the past, the judge is normally going to assume that you’ll be working it in the future, absent some fairly strong evidence to the contrary.
Child support is normally deducted directly from the non-custodial parent's paycheck pursuant to a wage withholding order; it's sent to Collection Services in Des Moines, which then forwards the payment to the custodial parent -- either by depositing directly into a custodial parent's checking account or by crediting a debit card with the support amount. If a non-custodial parent is self-employed, or is paid in cash, a wage withholding order normally won't work, and it can sometimes be very difficult to actually collect the support obligation.
Temporary child support: Child support is usually determined at the end of the divorce process. However, if the other parent has moved out and left you with the children, you can request that the Court award you child support during the three to four months that it takes to finalize your divorce, i.e., you can request temporary child support. The other parent will be served with an application requesting the temporary support and setting the matter for a hearing; at the hearing, the lawyers will attempt to work out the appropriate amount, and the non-custodial parent will be ordered to pay it. If you need temporary support, make sure you let your attorney know at your first meeting.
The marital estate is all of the assets and debts accumulated by the parties during their marriage. In Iowa divorce proceedings, the marital estate is “equitably divided;” this means that the division does not necessarily have to be 50-50, it has to be fair . If the parties can’t reach an agreement about who gets what, the judge will do it for them—and usually neither party is particularly happy with the outcome.
If the parties have a house and children, the judge will often allow the custodial parent to remain living in the house if he or she wants to do so—the feeling is that it is best for the children to keep living in the marital residence if at all possible. The non-custodial parent is usually granted a lien on the property for his or her share of the equity. Sometimes the custodial parent simply can’t afford to remain living in the marital home, even with child support and/or alimony — in those cases, the house can be sold and the parties can split the equity. One problem that often arises is that the wife, who has the kids and wants to keep living in the family home, is unable to refinance the mortgage in her own name, and the husband doesn’t want her to have sole title to a property for which he is still financially liable. There is no good answer to this situation—sometimes the husband just has to deal with it, although if the wife has a history of being financially irresponsible, the judge might not award her the home if she is unable to refinance it. However, I have yet to see a case where a judge kicks mom and the kids out of the family home if mom really wants to stay there, and appears to have the ability to pay the mortgage.
The same thing happens with cars—usually the cars are secured by loans in both parties’ names, and unless the loan can be refinanced, one party will remain liable for the loan even though he or she no longer owns the vehicle. Again, there is no good answer to this situation—you need to discuss it with your attorney. Sometimes you are going to be stuck with your name on a loan secured by a car that you no longer own, which means that if your ex doesn't make the payments, it will adversely affect your credit.
Anything you owned before you got married (unless you bought it together) NORMALLY belongs to you and you will usually receive it in the distribution of property, however, there are exceptions. Likewise, anything you inherited during the marriage normally belongs to you (unless you somehow turned it into marital property, which is something you need to discuss with your attorney). Note that the Court can and does take pre-marital and inherited property into consideration when making the ultimate distribution of property and debts—e.g., if one party inherited a million dollars during the marriage, that party will probably be paying a larger percentage of any marital debt.
Any debts incurred by either party during the marriage for “necessary items” (e.g., food, clothing, shelter, medical bills ) are considered joint debts, regardless of whether or not each party’s name is on the bill. In other words, don’t assume that you will not be held responsible for your spouse’s ten thousand dollar hospital bill—it is technically just as much yours as it is his or hers. In dividing debts, the judge attempts to do what is EQUITABLE (fair), based on the financial situation of both parties—this means that if one party is making a lot more money than the other party, he or she may end up with most or all of the debts.
It is important to note that just because the judge orders your spouse to pay the VISA credit card debt, or any other specific debt, that doesn’t mean that the creditor doesn’t have a right to try and get the money from you. A divorce decree is an order affecting only the parties themselves—thus, the judge doesn’t have the authority to order creditors to lay off one party or the other. If your ex is ordered to pay a bill, and he or she doesn’t and the creditor comes after you, normally all you can do is seek to have your ex held in contempt of court, which may or may not force him or her to pay the creditor as ordered by the court. If there is a lot of marital debt, sometimes it makes sense for the parties to consider filing for bankruptcy relief jointly, prior to the finalization of the divorce proceeding.
CONCLUSION: The law concerning divorce, paternity, and custody is constantly changing, so it is important to keep in mind that the above is only a broad outline of some of the more typical procedures and issues. Every attorney has his or her own way of handling divorces, and opinions, attitudes and techniques differ from lawyer to lawyer. The information set out above is intended to answer some of your basic questions, in order to allow you and your attorney more time and energy to deal with the specific set of circumstances in your own case. THE ABOVE IS NOT INTENDED AS LEGAL ADVICE, and you should not rely on it as legal advice. Until you have retained our office—i.e., paid us money—to represent you, we are not your attorney, and thus we cannot provide you with legal advice.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Copyright © 2008 by Wolfe Law Office Mary Lynn Wolfe, Attorney John J. Wolfe, Attorney. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.