Iowa Law Blog : Iowa Lawyer & Attorney : Sullivan & Ward Law Firm : Iowa Law Blog

Alimony can be awarded to either a husband or a wife for a limited or indefinite length of time.  In Iowa, there are three different kinds of alimony - Traditional, Rehabilitative and Reimbursement.  Traditional alimony continues as long as the dependent spouse lives and remains unmarried.  It is generally awarded after a long marriage where one spouse has been dependent on the earning efforts of the other spouse, has a mental or physical disability, does not have the ability to become self-sufficient, or has a substantially lower earning capacity.  Rehabilitative alimony is designed to allow the recipient spouse to become self-supporting and is for a shorter, defined period of time. Finally, Reimbursement alimony is ordered where one spouse assisted the other to obtain an advanced degree, professional license or otherwise supported their career advancements. Typically, Traditional and Rehabilitative alimony terminate when the recipient remarries or dies, but Reimbursement alimony does not terminate upon remarriage. 

 

Pursuant to Iowa Code Section 598.21A(1), in entering an alimony award the Court will take into consideration the following:

 

a.  The length of the marriage;

    

b.  The age and physical and emotional health of the parties;

    

c.   The distribution of property made pursuant to section
      598.21;

    

d.  The educational level of each party at the time of
      marriage and at the time the action is commenced;

    

e.  The earning capacity of the party seeking maintenance,
      including educational background, training, employment skills, work
      experience, length of 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;

 

f.   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;

 

g.  The tax consequences to each party;

 

h.  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;

 

i.   The provisions of an antenuptial agreement; and

 

j.   Other factors the court may determine to be relevant in an
      individual case.
 

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The use of mediation in Iowa is becoming an increasingly popular way of resolving family law disputes. In mediation, a neutral third party (the mediator) assists the parties in reaching an agreement regarding some or all of the issues in their case. The mediator is chosen by agreement of the parties and while he/she is not a legal advisor for either side, an effective mediator may raise issues not previously considered. Overall, the mediation process tends to be less adversarial, allows the parties greater control over the outcome of their case, and saves time and money. 

Either party can request to participate in mediation at anytime (Iowa Code Section 598.7). The best time to mediate; however, is after the parties have had an opportunity to fully identify all of the unresolved issues in their case. The Court can also order the parties to participate in mediation. If ordered to participate in mediation, parties can request a waiver where there is a history of domestic violence or abuse in the relationship (Iowa Code Section 598.41).   

 

If the parties are unable to reach an agreement at mediation, the parties can then proceed as if mediation had never taken place. This usually involves requesting the Court to make a decision on any unresolved issues at a hearing or trial. 

 

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The Iowa Supreme Court held in an unanimous decision today that the Iowa statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution.  The decision makes Iowa the first Midwestern state, and the forth nationwide, to allow same-sex marriages.  Pursuant to the ruling of the Court, same-sex marriages will be legal beginning on April 24, 2009.  

The full ruling is available on-line at :  www.iowacourts.gov/supreme_court 

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The Iowa Supreme Court has adopted new child support guidelines.  The guidelines will go into effect July 1, 2009 and are based upon the "pure income shares model of child support."  More information about the new guidelines is available on the Iowa Supreme Court's website: www.iowacourts.gov/news_service/news_releases/newsitem362/

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The Federal Family Support Act of 1988 requires each state to maintain uniform child support guidelines and criteria, and review the guidelines and criteria at least once every four years.  In Iowa, the Iowa Supreme Court holds this responsibility.  To facilitate this year's scheduled review, the Iowa Supreme Court established a committee to (1) analyze information about the number of deviations from the Iowa Guidelines, (2) study current data concerning child-raising costs and other economic measures, and compare Iowa's guidelines with child-rearing measures and the guidelines of other states, (3) review and consider the findings and recommendations of the Iowa Child Support Advisory Committee, and (4) consider other information deemed necessary or useful for a thorough review of the current Iowa guidelines.  Upon completion of its investigation the committee recommended the adoption of new child support guidelines.  The proposed guidelines place a greater emphasis on apportioning the cost of child rearing between both parents according to their respective incomes.  The proposed guidelines also provide for lower support orders for low-income, non-custodial parents, are more closely aligned with current economic data on child-rearing costs, and provide a better way for parents to share the cost of health insurance. 

For more information regarding the current child support guidelines see Iowa Code Sections 598.1(9) and 598.21B (www.legis.state.ia.us/Code.html) or contact the Child Support Specialized Customer Service Unit at: 1-888-229-9223 (toll free) or 1-515-242-5530.

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I was home Tuesday morning waiting for a repairman when I caught the "Today" show on NBC. One of the speakers was a prominent divorce attorney discussing the state of divorce these days, especially given the economy. The other issue was use of electronic evidence during a divorce especially when child custody is an issue.

The conclusion was that the economy has a temporary affect on the divorce rate. Tough economic times tend to make people stick together. Isn't it always easier to support one household on two incomes rather than two households on two incomes? The divorce rate is likely to emerge from stagnation once the market begins doing better.

As for electronic evidence, the program focused on the Christie Brinkley divorce trial. As you may know, Brinkley's attorneys are using her husband's past behavior, which includes visits to pornographic websites, to argue he is an unfit custodian.

While using such evidence is not new, it still often goes unnoticed . . . . or unrecognized by those engaging in such behavior.

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New Jersey's former governor, James McGreevey and his wife Dina Matos McGreevey are in the middle of a divorce. Some of you might recall that Former Gov. McGreevey announced several years ago during his term that he is a "gay American" resulting in the unraveling of his marriage. Although only married since 2000, Matos McGreevey is seeking alimony. The issue in today's hearing was not whether she is entitled to alimony but whether she is deserving of compensation for losing out on perks of her husband's job — state police transportation and a 24/7 security detail, a household staff and use of two beach houses — because he resigned 13 months shy of completing his first term.

McGreevey maintains that perks of the governor's office are not a marital asset.

In Iowa, one's job perks can be considered as a factor in determining (upward deviation from guideline amont) child support or alimony by looking at the cash value or the savings to the receiving party. Perks I have run across usually include paid cell phone, car allowance, gasoline, and country club memberships - not state security and use of summer rental homes. The McGreevey case is interesting because it involves perks that would have come to fruition if Gov. McGreevey served his entire term; they are not perks he currently receives.

Luckily the couple agreed on the important stuff ahead of time: custody of their 6 year-old daughter; however, the agreement remains sealed.

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I just finished up a modification trial today regarding child custody. As an attorney, I strive not only to represent my client but when the case involves the children, my duty also includes thinking about how the outcome could affect them as well. A recent article on Newswise and included in the Journal on Marriage and Family reported that for children of divorce, what happens after their parents split up may be just as important to their long-term well-being as the divorce itself.

A new study found that children who lived in unstable family situations after their parents divorced fared much worse as adults on a variety of measures compared to children who had stable post-divorce family situations. “For many children with divorced parents, particularly young ones, the divorce does not mark the end of family structure changes – it marks the beginning,” said Yongmin Sun, co-author of the study and associate professor of sociology at Ohio State University’s Mansfield campus. “A stable family situation after divorce does not erase the negative effects of a divorce, but children in this situation fare much better than do those who experience chronic instability”

The study compared children who grew up in three different situations including children who grew up in married households, children whose parents divorced before the study began but lived in a stable home, and children whose family situation changed once or twice during teen years.

Results showed that young adults who grew up in stable post-divorce families had similar chances of attending college and living in poverty compared to those from always married families. But they fared less well on measures of the highest degree obtained, occupational prestige and income. However, those who lived in unstable family situations after their parents divorced did worse on all measures. In fact, they fared more than twice as poorly on most measures compared to their peers who had stable family situations.

This study found that for those in stable post-divorce families, the difference in adult well-being was mostly due to a shortage of economic and social resources. Compared to always-married parents, divorced parents had a lower level of income, didn’t talk to their children as much about school-related matters, had fewer interactions with other parents, and moved their children to new schools more often.

These findings provide a clear message to parents: minimize disruption during a divorce and after.

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On May 20, 2008 a man from central Florida will stand in front of a Judge and possibly be sentenced to five years in prison for failing to pay hundred of thousands of dollars in child support. Robert Abraham, age 65, pleaded guilty in mid-March to failing to pay $651,000 in child support for his three children. The charges marks the first time anyone in his county of residence has been charged with a felony for neglecting to make child support payments.

Often custodial parents face the same ordeal, although owing hundred of thousands of dollars is rare. In Iowa, the custodial parent can bring a contempt action in court for non-payment and each missed monthly payment may be the basis for individual counts of contempt. If the non-custodial parent has missed many months, the counts can add up (26 counts in a case I handled last year). The court can employ many remedies which are set out in the Iowa Code including forcing the non-custodial parent to post bond equal to months of future-owed payments, fines and jail time - up to 30 days for each finding of contempt.

Abraham further demonstrated his lack of intelligence when he declined to settle his $651,000 child support debt for $200,000.

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Apparently there is now YouTube Divorce. In an effort to have the last salvo, Tricia Walsh-Smith (an actress and playwriter), posted a YouTube video in which she lashes out against her prominent soon-to-be-ex-husband, Philip Smith, president of Shubert Organization (the largest theater owner on Broadway). She spills intimate details of their marriage in an effort to leave a lasting imprint of humiliation.

Ms. Smith goes through their wedding album on camera, describing family members as "bad" or "evil" or "nasty," and talks about how her husband is allegedly trying to evict her from their luxury apartment. She also makes embarrassing claims regarding their intimate life, and then calls his office on camera to repeat those claims to a stunned assistant. Part of Ms. Smith's anger arises from a prenuptial agreement she signed. While the terms and conditions were not disclosed, one can assume from her behavior that she will get little, if anything, from her divorce.

This behavior teaches us two things: first, always have an attorney review any prenuptial (or antenuptial agreement for that matter) with you before you sign. While love is blind, money is not. Second, Ms. Smith's behavior, although envied by many who have gone through tumultuous divorces, may not sit well with a judge. Judges make decisions partly on a person's judgment. If Ms. Smith challenges the validity of the prenup, her recent YouTube escapade may have some impact on the ruling, especially her credibility.

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Ever wanted to get married but didn't want to attend the marriage ceremony? Think about moving to Montana where a double proxy wedding is permissible. The New York Times recently posted an article stating that Montana is the only state that allows a double-proxy wedding - that is - allowing a stranger (or acquaintance) stand up for both the bride and groom and enter into a civil marriage contract. Thus, the presence of neither the bride or groom is required.

This is common when both parties are in the military and stationed in different parts of the country. And it takes about all but a minute. The cost to the real bride and groom: $900, $50 apiece to the proxies, $100 to the judge, $150 to the lawyer (and witness); $53 for court fees; $14 for two certified copies of the marriage certificate; and the rest to a Pennsylvania couple who run a business facilitating proxy marriages.

Last year, the Montana State Legislature amended the law to require that one party in a double-proxy marriage be either a Montana resident or a member of the armed forces on active duty; however, the article noted that these Montana marriages are recognized in every state but Iowa.

Now if there could only be divorce by proxy. . . .

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The Money Team at the Des Moines Register recently posted an answer to the following question:

Q: “I am about to get divorced after 25 years of being a wife and stay-at-home mom with no involvement in finances. I’ll get the house and a decent retirement fund, but I don’t even know where to start. Any advice?”

This is an extremely common question when individuals, after a long-term marriage, divorce. The Money Team gives sound advice: Look at a few basic financial areas: cash flow, short-term savings, retirement planning and asset protection. Understanding what money is coming in and going out can make a bigger difference in your lifestyle than what you received in the divorce.

I suggest that anyone going through a divorce take a look at this article. Scheduling an appointment with a financial planner as well as an attorney versed in Wills, Trusts and other testamentary instruments is also advisable especially if you had little involvement in family finances during the marriage. You may need some guidance to get through the rough beginning but a clear understanding of finances can make the long road easier.

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Honesty may be the best policy for a successful marriage. But when it comes to divorce, couples are becoming increasingly devious in concealing their wealth from each other reports the Pennsylvania Family Law Blog. One fifth of couples who divorced last year tried to conceal their assets or income from their spouse - a figure which has doubled since 2006 - a report has found.

The study - by the accounting firm Grant Thornton, which surveyed 100 family lawyers - found that husbands were much more dishonest when a marriage crumbled. In cases where assets had been hidden, 88 per cent involved men concealing wealth from their wives. Just two per cent involved women hiding assets. In the remainder of cases, both partners tried to conceal wealth from one another.

Family law experts say a spate of expensive, high-profile divorce cases, such as that of Sir Paul McCartney and his wife, Heather Mills McCartney, is spurring couples to hide their wealth from each other. Andrea McLaren, the head of Grant Thornton’s matrimonial practice, said: ‘The number of couples hiding assets from one another has increased by 100 per cent since last year, which is staggering. Supposedly, men are seeing terrifying huge divorce settlements which are compelling them to hide assets.

In Iowa, you must, unless waived by court order, disclose all assets on an affidavit of financial status. While the affidavit is signed under oath, it does not guaranty full disclosure. Make sure you keep track of all marital and nonmarital assets during a marriage: this does not mean you are necessarily eyeing a divorce, but it is helpful when your spouse gets sick or passes away and is unable to carrying on his/her financial affairs.

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The Oregon Divorce Blog recently published a good post about what NOT to do during divorce. It points out that many pitfalls and traps await parties who are unfamiliar with the process noting that people often make bad decisions under stress, or without the guidance of an experienced lawyer and fail to educate themselves.

I agree, that by avoiding the following 10 pitfalls, you may get a better result. During your divorce, you should NOT:

1. Lie to your lawyer.

2. Lie to the court.

3. Involve the kids in the process.

4. Hide or fail to produce documents.

5. Refuse to cooperate with a court appointed expert.

6. Settle without analyzing your case.

7. Fail to try to resolve the case outside of court.

8. Take out your stress in unhealthy ways.

9. Be economically irrational in negotiations.

10. Be your own lawyer if your case is contested and your spouse is represented.

To read an explanation as to why you should avoid these pitfalls, click on the above-link.

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Extramarital affairs are cited as the most common reason for divorce in the UK and Wales, accounting for 29 per cent of break ups, a survey revealed on Monday. "Mid-life" crisis are reportedly blamed for this increase. Family strains were reportedly the third most common cause of marital break-up.

Apparently Brits are hiring private investigators to trail suspicious spouses and go to great lengths to find out the truth, even though it hurts.

Sir Mark Potter, president of high court's family division, acknowledged that London has become "the divorce capital of the world."

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USA Today published an article in yesterday's edition (2/14/08) about electronic messages promulgating a divorce or at least, being used as evidence. According to the article, about 88% of American Academy of Matrimonial Lawyers say they've seen an increase in the number of divorce cases using electronic data as evidence during the past 5 years. The evidence is being used to catch people in the midst of affairs and hiding assets, such as buildings, to avoid having to divide the same pursuant to a divorce proceeding.

Lawyers are also looking at MySpace and Facebook pages as well as electronic calendars and other computerized data. Also, spouses are "email snooping," that is, looking at a spouse's private email and text messages. Look at what happened to Detroit Mayor Kwame Kilpatrick--he and a former chief of staff are under investigation after a newspaper revealed contents of their text messages on city-issued paging devices.

The article notes that electronic evidence probably has not led to more divorces but makes evidence gathering easier. The upshot is: be a sleuth if you believe funny stuff is going on; be discreet if you are doing the funny stuff.

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The Iowa Court of Appeals recently reviewed what remedies are available when aparent fails to pay child support. In John Martin Farrell v. Iowa District Court for Polk County, the Iowa Court of Appeals annuled the district court's finding that a father was in default for failing to pay extracurricular activities but sustained a finding of contempt.

A parent refusing to pay child support or other support such as extracurricular activities (when required by the decree) is a common occurrence. In its decision, the Farrell court outlined the difference between "contempt" and "default." If a parent "willfully" fails to pay child support on time there is a good chance s/he will be found in contempt--or willful noncompliance with a court order. There are defenses to a charge of nonpayment of support as outlined in the Farrell ruling.

A court can also find that although the payor's behavior wasn't willful, s/he nonetheless contravened the decree and issue a finding of default, or a technical violation. Either way, both of these may be viable options if a parent fails to pay support in a timely fashion.

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Steve Worrall, who maintains the Georgia Family Law Blog, recently wrote about a unanimous opinion written by the Georgia Supreme Court's Chief Justice in Blige v. Blige, S07F1817. This case holds that the trial court did not abuse discretion in setting aside the parties' prenupital agreement, since the evidence supported the trial court’s finding that the husband failed to make a full and fair disclosure of his assets, income and liabilities prior to execution of the agreement.

The parties did not live together before the marriage and the husband actively hid the fact that he had $150K in cash in his possession when the parties signed the agreement.

In Iowa, prenuptial agreements are generally upheld; however, like the Georgia Supreme Court emphasized, there must be written disclosure of the parties' full financial picture prior to execution. In addition, to increase the legitimacy of a prenuptial agreement, it should be entered into well-before the big wedding day. For other tips contact a family law attorney.

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What is your role as a friend when a close couple-friend breaks up or divorces? CNN.com ran an article today addressing this problem, primarily in the boyfriend/girlfriend break-up scenario. However, much of the advice applies to divorcing couples.

What should you do when you're friends with both parties? Where should your loyalties lie, and how can you avoid alienating either member of the couple? Sometimes distancing yourself from one or both until tension eases is a good solution. Sometimes buying the first round of drinks for the first-in line-first in time (a/k/a "I knew you first") friend is the trick. Whatever route you take, remember if there are children involved keep them protected. Make sure that any discussions regarding the other spouse/party is done outside the earshot (preferrably home) of the children.

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In Polk County Iowa all litigants in family court, which include divorcing couples and couples in the middle of paternity, custody and support cases, must submit to mediation (unless they are able to resolve their case prior to the mediation deadline). In outlying counties either party may request mediation. Luckily, in Iowa, there are many excellent and experienced family law mediators.

In divorce and other family law mediations, a neutral facilitator will help you and your spouse (significant other) discuss needs and wants. The goal is to reach a mutually acceptable agreement without going to trial. The process is confidential. The majority of time the mediator is an attorney; however, effective mediators have other diverse backgrounds as well.

I am a huge advocate of mediation for the following reasons: Mediation is usually less expensive than a trial, preferred by judges, more satisfactory to the parties and fosters higher compliance. Most importantly, it allows both parties to retain control over case outcome.

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Daniel Clement, a NY divorce lawyer, recently published a good article on preserving your credit rating during a divorce. He reminds divorcing spouses that apportioning joint liability is not binding on a creditor; a creditor can attempt to collect the debt from either or both parties. Missed payments can have a deleteriuos affect on your credit score for years.

If you know a divorce is imminent, it may be wise to take action, as suggested by Mr. Clement, at least six months to a year before filing. This way, if and when problems start rearing their head, many issues will have already been resolved.

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Recently, J. Benjamin Stevens, an attorney with the South Carolina firm of Stevens MacPhail posted a good blog on dating after divorce. Like Mr. Stevens points out, many of my divorce clients ask whether they can allow their child around a new boyfriend/girlfriend following a divorce.

While you may meet resistance from your new ex-spouse, having your child around a new girlfriend/boyfriend is permissible so long as s/he acts appropriately, doesn't have something in his/her past (such as a recent child abuse conviction) that is inappropriate, and the new person isn't there overnight. However, with respect to the latter, this may be more applicable in a new relationship before the child has time to adjust to the divorce and the parent's new relationship. There comes a point when overnights typically occur however, discretion and consideration for the child's feelings should be paramount.

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Mike Sansone has compiled a list of Iowa bloggers that Drew McLellan has coined the "I List".  (Let's hope we don't see a trademark lawsuit by Apple).   And while this pair of prolific bloggers managed to overlook our relatively new Iowa law blog we hold no grudges.  We have added a few Iowa law blogs to the list originally posted by Mike.

Kudos to this partial list of the hardest working bloggers in Iowa:

Adam Carroll
Andy Drish
Art Dinkin, CFP, CLU, ChFC
Association of Business & Industry
Babich, Goldman, Cashatt & Renzo
Barry Pace
BeatCanvas

Bill Grell
Blue Frog Arts
Brett Trout
Bridges Financial
Broom Wizards
C Wenger Group
Carpe Factum
Claire Celsi
Cloud Nine Diamonds
Compass Financial Services
Conference Calls Unlimited
ConverStations
Dave Dreeszen
Des Moines Families
Dickinson, Mackaman, Tyler & Hagen
DMWebLife
Do You Q?
Dr U Fantasy Football
DSM Buzz
Dwebware
Employer Ease
Eric Peterson
Focal Point Multimedia

 George Davison
Gift Idea Help
Home Know-it-All
Insight Advertising & Marketing
Iowa Bed & Breakfast Association
Iowa Biz
J. Erik Potter
Jann Freed

Jennifer Jaskolka-Brown
Josh More
Kyle's Cove
Maiers Educational Services
McKee, Vorhees & Sease
McLellan Marketing Group
NCMIC Insurance
Purple Wren
Radio Iowa
REL Productions
Rental Metrics
Rita Perea Consulting
Roth & Company
RSM McGladrey
Ruby's Pub
Runners' Lounge
Rush Nigut
Ryan Rossinick
Simplifive
Snap! Creative Works
Studio 24 Design

Sullivan & Ward's Iowa Law Blog
Swing Station
The Members Group
The Mitchell Group
The Simple Dollar

 The Yin Blog
Transition Capital Management
US Rodeo Supply
Victoria Herring
Wade Den Hartog
Wealth With Mortgage
When Words Matter
White Rabbit Group

Happy New Year everyone!  If you know of an Iowa blog that should be added to this list please let us know.

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I recently ran across a good blog site titled "Updates in Michigan Family Law" authored by Jeane M. Hannah, a Michigan family law practitioner. In her article she refers to a new tool to help children cope with high-conflict divorce called Earthquake in Zipland. This is an interactive video game developed by a social worker.

Earthquake in Zipland is intended to unblock a child’s hidden conflicts and emotional distress and to facilitate healthy dialogue between the child (or children) and the parent to help school-age kids cope with divorce.

According to a recent American Bar Association article, the game features a superhero named Moose who must doctor his country after an earthquake has caused upheaval and chaos. Children are encouraged to perform certain tasks to move to a higher level including writing an online journal about their feelings. As noted by Ms. Hannah, the goal is to help children understand and accept that “even a superhero can’t put everything together exactly the way it was before.”

You can read the ABA Journal article here. It's Game on for Family Lawyers
You can access the game’s website here, where the game may be downloaded or ordered to arrive on a disk. A free demo may also be downloaded so that you can try it out prior to ordering.

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A spurned spouse in Mississippi was recently awarded $750,000 under the theory that a rich business man committed alienation of affection by luring the wife into an affair with him.  Mississippi is only one of 7 states that still recognize the theory whereby a person can claim someone stole their wife or husband and recover damages.  The claim is rooted in the antiquated notion that a woman is is her husband's property.

Most states, including Iowa, have abolished alienation of affection as a basis for lawsuits.

While there was no mention whether the wife divorced the husband, the article did state that the wife "chose" the rich paramour over her plumber husband.  Good thing the paramour is worth $22 million; he has a hefty judgment to pay and an appeal to the U.S. Supreme Court. 

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A lousy marriage might literally make you sick.

The Family Law Prof Blog recently posted an article on this topic.

The article reports that marital strife and other bad personal relationships can raise your risk for heart disease, researchers reported Monday. Stress, a well-known contributor to health problems, appears to be the culprit.

The study, in Monday's Archives of Internal Medicine, follows previous research that has linked health problems with being single and having few close relationships. In the new study, researchers focused more on the quality of marriage and other important relationships.

While divorce can also be stressful, could it be a cure?

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