Robert Peterson, Attorney at Law

     Family law  in Iowa involves many issues including dissolution of marriage (divorce); paternity; child custody; child support; visitation; juvenile issues such as delinquency, child abuse, Child in Need of Assistance, and termination of parental rights; spousal support;  prenuptial (or premarital or antenuptial agreements); and property division.  Iowa is also one of the few states that has common law marriage and same sex marriage and both of these situations require dissolution if the marriage is terminated.  Both of these types of marriages create unique situations affecting rights and privileges that may need to be discussed with an attorney. There are many common mistakes that occur during a divorce. All of these above issues can have long lasting effects, and I would highly encourage anyone with any of these issues to consult with an attorney.


Premarital agreements:
     Premarital agreements are agreements which are made in anticipation of marriage between the engaged parties.  These agreements are favored by the courts and a valid agreement which has not been revoked or held unenforceable will be liberally construed by the courts and upheld if it was executed in a procedurally fair manner and is not substantially unfair.  A premarital agreement can not contract away child support or spousal support (alimony), but can include the rights and obligations of the parties concerning property or the management or disposition of property upon separation, divorce, death or other event, will or trust generation, life insurance benefits, choice of law, and any other matter which is not in violation of public policy or law.
     To revoke a premarital agreement, both spouses must sign a written agreement, thus it can not normally be revoked after the death of one spouse.  A premarital agreement may be revoked or held unenforceable if:  one spouse did not execute voluntarily, re premarital agreement was unconscionable when signed, or there was not a full and frank disclosure of all matters (fair and reasonable disclosure of the property or financial obligations and the other spouse could not reasonably had knowledge).
     The courts treat the agreements like ordinary contracts and liberally construes the parties' intent, using a substantive fairness test with a voluntary and knowing waiver of rights.  Defenses to a premarital agreement include undue influence, duress, and fraud.  Lying about the reason for the agreement or presenting the agreement just prior to the wedding are not invalidating reasons.

Dissolution of marriage:
      An overview of divorce (called dissolution of marriage) is available on the Iowa Judicial webpage.
      The divorce decree contains provisions for the following (if appropriate): dissolution of the marriage, child custody, child support, visitation, spousal support (alimony), and property division. Attorney fees and costs can be allocated by the court. If any of these issues are not included in the petition, they may be deemed waived. Temporary hearings on issues can be held.
     The only grounds and evidence that is required for a dissolution in Iowa is 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 reasonable likelihood that the marriage can be preserved." Iowa Code Section 598.17 (2007).
     Once the petition for dissolution has been filed, there is a waiting period of 90 days from the date that the original notice was served (or date of last publication), unless waived for emergency or necessity.
     Children in the Middle Classes must be taken by both parties if children are involved in the divorce. This can be waived upon good cause or if termination of parental rights is involved.
     Dissolution can void any designation of the spouse as a beneficiary on insurance policies or other plans or voids the spouse as a taker under wills unless the decree indicates that the spouse is to continue as a beneficiary.

    Divorce is usually a difficult and emotional process and usually involves a lot of hurt feelings that continue for many years.  If the divorce can be viewed from a business point of view, instead of emotional, a better deal can be reached.  This is one important reason to retain an attorney.


Spousal Support (alimony):

    Alimony is not an absolute right. In re Marriage of Anliker, 694 N.W.2d 535, 540 (Iowa 2005). Whether alimony is awarded depends on the circumstances of each particular case. Id. See In re Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976).

    “Alimony is a stipend to a spouse in lieu of the other spouse’s legal obligation for support.” In re Marriage of Francis, 442 N.W.2d 58,62 (Iowa 1989). In assessing a claim for spousal support, Iowa considers the property division and spousal support provisions together in determining their sufficiency. See In re Marriage of Lattig, 318 N.W.2d 811, 815 (Iowa Ct. App. 1982). An alimony or spousal support award is justified when the distribution of the assets of the marriage does not equalize the inequities and economic disadvantages suffered in marriage by the party seeking the support and there also is a need for support. In re Marriage of Weiss, 496 N.W.2d 785, 787-88 (Iowa Ct. App. 1992).

    Iowa courts have recognized three types of alimony: traditional, rehabilitative, and reimbursement. “Traditional alimony is ‘payable for life or so long as a spouse is incapable of self support.’” In re Marriage of Anliker, 694 N.W.2d 535,540 (Iowa 2005). “’Rehabilitative alimony’ was conceived as a way of supporting an economically dependent spouse through a limited period of re-education or retraining following divorce, thereby creating incentive and opportunity for that spouse to become self supporting.’” Id. at 540-41. “’Reimbursement alimony’ is predicated upon economic sacrifices made by one spouse during the marriage that directly enhances the future earning capacity of the other.” Id. at 541. A court may grant alimony at its discretion after considering “(1) the earning capacity of either party, and (2) present standard of living and ability to pay balanced against the relative needs of the other.” (In re Marriage of Estlund, 344 N.W.2d 276, 281 (Iowa 1983)), In re Marriage of Hitchcock, 309 N.W.2d 432, 436-37 (Iowa 1981), together with the factors listed in Iowa Code section 598.21A. An award of spousal support is a balancing of the equities. In re Marriage of Clinton, 579 N.W.2d 835, 839 (Iowa Ct. App. 1998).

      Spouses have a legal obligation to support the other spouse. In a dissolution, support can be ordered for traditional purposes, rehabilitative purposes, and/or for reimbursement purposes. Traditional spousal support is paid to the spouse for life or as long as the spouse cannot support his/her self to maintain the standard of living in the marriage. Rehabilitative support is provided to allow a period or education or retraining to become self sufficient. Reimbursement support is provided based on sacrifices by the spouse during the marriage which enhanced the earning capacity of the other spouse.

      Remarriage, cohabitation, or retirement of the spouse does not necessary terminate support. Rehabilitative support may end when the spouse is self-sufficient. Reimbursement ends when the spouse is fully repaid. Normally death of the recipient ends support, but the estate may seek back payments.

     In determining whether to award alimony, the district court is to consider the factors in Iowa Code section 598.21A(1) (2009). That section allows the court to consider (1) the length of the marriage, (2) the age and physical and emotional health of the parties, (3) the property distribution, (4) the educational level of the parties at the time of the marriage and at the time the dissolution action is commenced, (5) the earning capacity of the party seeking alimony, and (6) the feasibility of the party seeking alimony becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage. Iowa Code § 598.21A(1)(a)-(f). Tax consequences; mutual agreements and prenuptial agreements; and other factors must also be considered. Overtime pay can be considered if it is not speculative or uncertain. Inherited assets can be considered. Future earning capacity from an advanced degree can be considered as a factor, but not as an asset. Iowa looks not only at the parties’ earnings but also at his or her earning capacity as directed by Iowa Code section 598.21A. See In re Marriage of Friedman, 466 N.W.2d 689, 693 (Iowa 1991).Spousal dissipation of assets can be considered.

    There are important differences between property division and alimony. It is anticipated that spousal support will be paid from future income whereas property distributions are designed to sort out property interests acquired in the past. Under traditional concepts,
alimony was expressly forward-looking: its purpose was to provide for a dependent spouse’s future needs, not to compensate a spouse for contributions made during marriage. Property awards, by contrast, were oriented toward the past: their purpose was to unscramble the respective ownership interests of each spouse in property acquired during marriage.
Jana B. Singer, Divorce Obligations and Bankruptcy Discharge: Rethinking the Support/Property Distinction, 30 Harv. J. on Legis. 43, 68-69 (1993). A property division divides the property at hand and is not modifiable, Iowa Code § 598.21(7), while a spousal support award is made in contemplation of the parties’ future earnings and is modifiable. Id. § 598.21C (2007). Under some circumstances, when division of property is impractical, a higher spousal support award is warranted. Spousal support provides an excellent opportunity to balance equities where the parties have few assets and yet one partner, through joint efforts, leaves the marriage with a substantially higher income than the other. See in re Marriage of Mouw, 561 N.W.2d 100, 102 (Iowa Ct. App. 1997) (awarding wife $2000 a month alimony where education husband received during marriage resulted in his having substantial income potential)…

Property Division:
      Iowa is an equitable distribution jurisdiction. Partners to a marriage are entitled to a just and equitable share of property accumulated through their joint efforts.  In re Marriage of Hass, 538 N.W.2d 889, 892 (Iowa App. 1995). In re Marriage of Dean, 642 N.W.2d 321, 325 (Iowa Ct. App. 2002).  Property division should be based on what is equitable and just under all the circumstances.  In re Marriage of McNerney, 417 N.W.2d 205, 209 (Iowa 1987).

    The property is to be equitably divided in a dissolution action is generally the property existing at the time of the trial, other than inherited property or gifts received by one person. Iowa Code section 598.21(1); In re Marriage of Moffatt, 279 N.W.2d 15, 20 (Iowa 1979). It includes premarital property. In re Marriage of Fennelly and Breckenfelder, 737 N.W.2d 97 (Iowa 2007).

    The division of debts should be equitable. In re Marriage of Erickson, 553 N.W.2d 905, 908 (Iowa App. 1996). Debts as well as assets are to be equitably divided between the parties. See In re Marriage of Smith, 351 N.W.2d 541, 543 (Iowa App. 1984). Division of property is to be based upon each spouse’s right to a just and equitable share of the property accumulated as a result of their joint efforts. In re Marriage of Hitchcock, 309 N.W.2d 432,437 (Iowa 1981). Iowa Code section 598.21(1) specifies the criteria for adjudicating the equitable distribution of property. See also Schantz v. Schantz, 163 N.W.2d 398 (Iowa 1968). “Although an equal division is not required, it is generally recognized that equality is often most equitable.” In re Marriage of Rhinehart, 704 N.W.2d 677, 683 (Iowa 2005).

     Thus property is not necessarily divided 50:50 or by a percentage.  In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa App. 1991).  In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct. App. 2001). While an equal division of assets accumulated during the marriage is frequently considered fair, it is not demanded. In re Marriage of Keener, 728 N.W.2d 188, 193 (Iowa 2007). The determining factor is what is fair and equitable in each particular circumstance. In re Marriage of Miller, 552 N.W.2d 460, 463 (Iowa Ct. App. 1996).  In re Marriage of Webb, 426 N.W.2d 402, 405 (Iowa 1988).

    The distribution should be made in consideration of the criteria set forth in Iowa Code section 598.21(5).  Factors are considered in the fair distribution of property, including: length of marriage; property each brought into the marriage; the contribution of each spouse; age, physical and emotional health of spouses; contribution to education, training or increased earning power of other spouse; earning capacity of each spouse; whether family home should be awarded to either party (especially the spouse with physical custody of children); amount and duration of support; other economic factors; tax consequences; any written agreements or prenuptial agreements; and/or other factors. Gender and domestic abuse are not factors.

    One of the above factors is 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. Iowa Code § 598.21(5)(g); see In re Marriage of Ales, 592 N.W.2d 698, 704 (Iowa Ct. App. 1999) (“We believe that provisions which allow the primary physical care parent to remain in the family home are primarily made to provide stability for the children; the economic benefit to the parent is ancillary.”)

      Property is determined as to whether it is marital or separate property. Generally separate property is not subject to division but can be based on contributions by the spouses, relationship of the giver, special needs, or if it is plainly unfair to the spouse or child. Worker's compensation is subject to distribution, as are pensions and retirement benefits. Future earnings if not accrued are not subject to division. Disability benefits are not normally divided. Debts are equitably divided. Personal injury claim proceeds are subject to division. Pets are subject to distribution. Appreciation of separate property during the marriage is considered as marital property and subject to division.
 
     A method of analyzing property distribution is:
1. Is there a prenuptial agreement? If so, it controls the distribution of property.
2. Is the object considered as property?
3. If the object is property, is it separate or marital property?
4. Considering the above factors, determine what is equitable.

Child Support:
     Parents have a legal obligation to support their children.  See my child support pages for child support information.    

Child Custody and Visitation:
     The Court's standard is the best long-term interest of the child, not perceived fairness to the parents or to reward or punish parents.  The court attempts to ensure maximum continuing physical and emotional contact between the parents and child, and the court attempts to place the child in the environment most likely for the child to achieve "health, both physically  and mentally, and to social maturity."  In re Marriage of Hansen, 733 N.W.2d 683, 695-696 (Iowa 2007).  See my Child Custody page for more information.


Court Costs and Attorney Fees:

    Court costs are to be equitably apportioned between the parties. Iowa Code section 625.3. Attorney fees are not allowed as a matter of right in dissolution cases. Whether an award is granted depends chiefly on the financial condition and earnings of both parties, as well as the relative needs and abilities of the parties. In re Marriage of Fish, 350 N.W.2d 226, 231 (Iowa App. 1984).

   
Significant Issues in Dissolutions:
     All parties in a dissolution should consider the possibility of bankruptcy and the tax effects of settlements.  Improperly designed dissolution settlements can significantly shift taxes to one party and the tax effects should be considered.  
     The possibility of bankruptcy should also be considered.  Property settlements have the possibility of being discharged in bankruptcies (not in Chapter 7, but in Chapter 13), but support settlements can not be discharged.  Thus property exchanges should be completed prior to the divorce becoming final (but there may be a possibility of the bankruptcy trustee still reversing the exchange), or shifting into support if possible.  Bankruptcy trustees may also consider recent divorce documents to compare with bankruptcy documents to determine if the bankruptcy documents are inaccurate or incomplete.  There is also a possibility that property obtained in a divorce may be considered part of the bankruptcy estate. If you leave your spouse and house prior to bankruptcy, you need to be aware of possible consequences including not being able to take the homestead exemption (effectively losing your equity in the home).  (However, if the spouse is a victim of domestic abuse, you may move out until the marital issues are resolved.)   Moving out of the home prior to filing bankruptcy with no intention of moving back, can cost a large amount of money.  Additionally, if the bankruptcy attorney represented both spouses during the bankruptcy, he/she may not represent one side during a divorce due to possible conflict issues.


     Immigration issues should also be examined in family law situations. If the spouse is not a U.S. citizen, but was granted a 2-year residence since the couple had been married for less than 2 years, a divorce may affect permanent residency and additional steps must be taken by the spouse. Marriage to a U.S. citizen does not automatically confer U.S. citizenship or immigration status.  Specific procedures need to be taken, and a divorce may interrupt these procedures.  If the spouse has filed for permanent residency, the spouse can not leave the country without a travel document or the application will be abandoned, and the foreign spouse may be denied re-entry into the U.S.
            A dissolution may affect a spouse's immigration status. A foreign spouse may need to document that the marriage was valid when it was entered into, and should always recover all paperwork from the house prior to separation that would show the validity of marriage such as bills, mail, etc. 
            If domestic abuse by the U.S. citizen spouse was an issue, the victim spouse may be able to obtain residency based upon the domestic violence, so proof may need to be obtained. 
            Timing of the divorce could be an issue. High net worth couples should be investigated to determine if property is overseas or foreign wills or assets are present as they may be affected or not by a U.S. divorce. Foreign taxes may be affected by a U.S. divorce. 
            Domicile can be complex under international laws, and guardianship of minor children can be affected. 
            There is no unlimited marital deduction for non-U.S. spouses. 
            Children born abroad may need to obtain certificates of birth abroad. 
            Foreign travel for the spouses could be an issue and may prevent reentry into the U.S. for 10 years or even permanently bar reentry into the U.S.
            Spousal Support (discussed above) can be affected by immigration issues.  A Form I-864 Affidavit of Support is usually required by the Immigration and Nationality Act.  With few exceptions, the sponsor must fill out the form agreeing to maintain the sponsored person at an annual income of not less than 125% of the Federal poverty line during the period in which the affidavit is enforceable.  8 U.S.C. section 1183a(a)(1).  This form is an enforceable contract and divorce does not terminate the obligation, and the form can be considered in support, requiring support in at least the amount of 125% of the federal poverty line even if the spouse cannot afford to pay. Stipulations can affect whether or not the support obligation affects alimony.  Support can be reduced by income received from other sources, however, so the issue can be complex.
     
Paternity Issues
      An overview of paternity issues is available on the Iowa judicial webpage.

Child in Need of Assistance (CINA):
      An overview of the juvenile justice system including CINA is available on the Iowa judicial webpage or my CINA webpage.

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