Finding Fault On-line in a No-Fault State

Iowa is a "no fault" state.  Generally, this means that the conduct of either party leading up to the divorce cannot be used as a factor in awarding a property settlement or alimony.  The conduct of a party is; however, still relevant when it comes to issues such as child custody and visitation.  With social networking on the rise, your on-line conduct is something that will likely be closely scrutinized by your soon-to-be ex-spouse.  According to factslides.com, a third of all U.S. divorce filings in 2011 contained the word "facebook."  If you are contemplating filing for divorce or if you are currently involved in litigation, it is a good idea to review your facebook page (or any other social networking sites) and remove any posts or photographs that could be negatively used as evidence against you. 

Nebraska Supreme Court Hears Arguments in Iowa Same-Sex Divorce Case

The Nebraska Supreme Court recently heard arguments in a same-sex divorce case involving two women legally married in Iowa.  Nebraska does not recognize same-sex marriages because of a constitutional amendment that was approved by voters in 2000.  So, the question before the Court, is whether or not the a Nebraska court can grant a divorce without acknowledging the marriage?  An attorney for one of the parties argues that the U.S. Constitution's "full faith and credit" clause requires Nebraska to recognize the marriage.  Given the large number of same sex-marriages that have occured in Iowa between non-Iowa residents since 2009, it will be interesting to see the outcome of this case. 

Man-imony? The Changing Face of Alimony

Although the word "alimony" is not used in the Iowa Code, the terms "alimony" and "spousal support" are interchangable.  Alimony is stipend to a spouse in lieu of the other spouse's legal obligation for support.  In Re Marriage of Hansen, 733 N.W.2d 683, 702 (Iowa 2007).  In Iowa, gender is not a factor that the Court considers when determining whether or not alimony is appropriate.  The factors the Court must follow when awarding alimony are set forth in Iowa Code Section 598.21A(1) and pursuant to those guidelines either a man or a woman can be ordered to pay.  This is true in other states as well.  In 2012, the American Academy of Matrimonial Lawyers surveyed its members and found that 47% had noticed an increase in the number of women paying alimony.  With more and more women becoming the primary breadwinners for their families, the number of women paying alimony to their ex-husbands will likely continue to increase. 

Cats, Dogs and No Contact Orders.

 In the coming months, victims of domestic abuse may have one less deterrent from seeking out necessary help and protection.

Under Senate File 2118, "pets or companion animals owned or held" by the parties to a domestic abuse protective order may be awarded to a protected party, giving them "exclusive care, possession or control" of the animal in question. Though the House has sought (unsuccessfully, to date) to expand this Bill to include personal property of sentimental or emotional significance, it appears both the House and Senate have recognized the concern and fear of those who stay in an abusive relationship rather than subject a pet to the same type of behavior.

To what degree this will impact the ability of parties and their counsel to negotiate no-contact agreements by consent is yet to be seen. Also, could this usher in future legislation that extends protection to other items of personal property that is otherwise addressed in family law Courts? The intent of legislators seems clear -  remove as many obstacles as possible for people who need to escape abusive situations.  

How to Navigate Divorce in a Healthy Way

Making the decision to end your marriage can be a very emotional experience.  Oftentimes, the emotions associated with ending your marriage result in anger and/or resentment toward your soon-to-be ex-spouse which in turn can make a difficult situation even more difficult.  During this time, it is important to remember that communication and cooperation, particularly if you have children, can make the experience less traumatic for everyone involved.  In my experience, parties that have negotiated their own settlements with the assistance of counsel, leave a marriage with a much more postive outlook than those who viewed their divorce as a battle that required judicial intervention.  Remembering to communicate and cooperate are a couple of helpful ways you can navigate the end of your marriage in a more healthy way. 

Gender Neutral Name Change

A Florida man recently found himself in a bit of trouble following his decision to take his wife's last name.  Lazaro Sopena changed his last name to "Dinh" following his 2011 marriage to his wife, Hanh Dinh.  Shortly after the marriage, he obtained a new passport, Social Security Card and driver's license.  One year later, Mr. Dinh was notified that his license was going to be suspended because it was alleged that he had fraudulantly obtained it.  Mr. Dinh is currently appealing the suspension of his license.  Grooms in Iowa who might be contemplating taking their bride's last name can rest easy - Iowa's marriage name change policy is gender neutral. 

A Valentine's Day Divorce

The month of February is typically regarded as one of the more romantic months of the year so when I recently read that it is the most active month for divorces, I was surprised.  The average length of a divorce ranges from eight months to one year.  This would mean that the most common time for filing for divorce, could also be in the month of February.  In a month filled with chocolates, flowers and candy hearts covered in cute phrases, it made me wonder - What is the reason for the decrease in domestic bliss this time of year?  While it doesn't directly answer my question, the website buzzle.com does offer some insight with its listing of the top ten reasons for divorce in the United States:

1. Communication Breakdown

2. Infidelity

3. Financial Problems

4. Emotional Abuse

5. Physical Abuse

6. Physical Incompatability

7. Loss of Interest

8. Shift in Priorities

9. Failed Expectations

10. Addiction 

Is facebook contact?

An Iowa City man was arrested earlier this month for allegedly violating a temporary protective order when he commented on old photos of him and the protected party on facebook. The temporary protective order had been entered following an ex parte hearing in which the protected party presented her explanation of the nature of the abuse and stated her desired relief. A temporary protective order (and permanent protective order) can require a person to stay away from and not communicate with the protective party in any way. A person who violates a temporary or permanent protective order is subject to immediate arrest if probable cause exists that he or she violated it. In the case of the Iowa City man, he indicated that he did not intend to contact the protected party when he made his posts on facebook and said that he "was just commenting on the past good times." The protected party failed to appear for hearing on the alleged violation and the matter was dismissed. As such, whether or not the Iowa City man's actions were in fact a violation of the temporary protective order as determined by the Court are unknown.    

Paternity Fraud?

The Supreme Court of Iowa issued an interesting opinion last week regarding a putative fathers' ability to bring a paternity fraud action against a biological mother to obtain reimbursement for payments that were voluntarily made. The case before the Court involved two parties who were never married - Joseph O. Dier and Cassandra Jo Peters. Ms. Peters gave birth to a child in February of 2009. Although she knew Mr. Dier was not the biological father, she nonetheless told him that he was.  Based on Ms. Peters' representations, Mr. Dier provided financial support for the child. He also filed an application to establish custody of the minor child. Concerned she would lose custody of the child, Ms. Peters requested a paternity test. Paternity testing excluded Mr. Dier as the biological father. Mr. Dier subsequently filed a petition for reimbursement from Ms. Peters for monies "expended to the Defendant, monies for the minor child, and monies expended in custody litigation." Mr. Dier's petition was ultimately dismissed by the District Court. On appeal; however, the Supreme Court found that his petition should not have been dismissed and that Mr. Dier could pursue recovery of money provided to Ms. Peters or spent for the benefit of the minor child (assuming he was not under a court order to make the payments), but not attorneys' fees and costs incurred in the prior custody litigation.    

Divorced Parents and Post Secondary Education Subsidies

The Iowa Supreme Court issued an interesting opinion on Friday, April 27, 2012 regarding divorced parents' responsibilities for post-secondary education subsidies under Iowa Code Section 598.21F (2011). The case presented required the Court to determine whether good cause exists for ordering a parent to pay a postsecondary education subsidy and, if so, in what amount? The Court ultimately affirmed the district court's determination that good cause exists for payment of a postsecondary education subsidy, but reduced the amount awarded by the district court. 

In order for a court in Iowa to order a postsecondary education subsidy, first the child must qualify. Pursuant to Iowa Code Section 598.21F, to qualify the child must be between the ages of eighteen and twenty-two and must have demonstrated a capacity to succeed in postsecondary education. If a child is eligible, the district court "may" order a postsecondary education subsidy if "good cause" is shown. 

 

Upon a showing of good cause, the Code provides a process for determining the subsidy.  The process generally looks at the cost of attending an in-state public institution, determines the amount the child should reasonably be expected to contribute and looks at the child's ability to earn income while in school. The court then deducts the child's expected contribution from the cost of postsecondary education to arrive at a figure that represents the remaining cost that will be attributed to the divorced parents of the child. The Code; however, explicitly caps the amount apportioned to each parent at no more than thirty-three and one-third percent of the total cost of the child's postsecondary education at a state institution. 

Super-sized Child Support in Iowa

This past summer, supermodel Linda Evangelista requested $46,000/month in child support from Francois Henri Pinault, CEO of the Paris-based conglomerate that owns Gucci, Yves St. Laurent and Bottega Veneta.  He is the father of her four year old son and has allegedly not paid any money in child support since the child's birth.  Ms. Evangelista's request raises an interesting question - In Iowa, how is child support calculated when the parents' combined net monthly income is unscheduled or in other words in excess of $20,000?

In Iowa, the child support guidelines are based on the parents' combined income and the number of children involved.  The child support guidelines are scheduled for a combined net monthly income up to $20,000.  For a net monthly income in excess of $20,000 the guidelines provide that the appropriate figure is deemed to be within the sound discretion of the court or the agency fixing child support by administrative order.  The amount of support payable by a non-custodial parent with a monthly net income of $20,001 or more shall be no less than the dollar amount as provided for in the guidelines for a non-custodial parent with a monthly net income of $20,000.

The guidelines do; however, expressly empower the courts to depart from the recommended child support amounts because of special circumstances.  Ms. Evangelista's "special circumstances" include a request for a full-time nanny, vacation expenses and armed chauffeurs.  It will be interesting to see how her case plays out in the Manhattan Family Court system. 

 

What is the Collaborative Divorce Process?

The collaborative divorce process is a relatively new form of conflict resolution. In the collaborative divorce process, each person retains his or her own collaborative lawyer to advise them in negotiating a settlement of all issues. This takes place before either party file for divorce. The goal of the collaborative divorce process is to obtain a settlement of all issues while avoiding the sometimes costly litigation process. Negotiations in the collaborative divorce process take place with both spouses and both lawyers present. Neither party can go to court or threaten to go to court as a means to force a resolution. In the event a settlement cannot be reached and the parties choose to go to court, both must obtain new counsel for the litigation process. The collaborative divorce process is ideal for spouses who communicate well and who are willing and able to work respectfully to try and find solutions to their unique set of issues.     

Surrogacy in Iowa

Surrogacy is an alternative form of reproduction where a woman agrees to bear a child for a man, woman or couple incapable of having a child of their own. These days, surrogacy is viewed as a relatively commonplace arrangement; however, the legal, ethical, and emotional complexities of this form of reproduction cannot be understated. In fact, some states refuse to recognize these arrangements at all and may allow a surrogate to retain her parental rights and/or deny the intended parent's rights to the child.  Although Iowa's statutory scheme does not directly address surrogacy contracts, currently these arrangements are not held as void against public policy. Because of the uncertainty in the law and the extremely high stakes that are involved, Iowans should exercise serious caution when entering into a surrogacy arrangement. 

            In general, you should take the following steps in order to protect your rights.

 

(1)    The first thing you should do is hire a lawyer who is familiar with surrogacy agreements.  A knowledgeable attorney will guide you through the complex process and make sure that your interests are being protected.

 

(2)   You need to find a surrogate that you can trust. Because this area of the law is so unsettled, if your surrogate backs out of the agreement you are not guaranteed a right to recourse. This means you may lose any fees or medical expense paid to the surrogate or even any parental rights to the resulting child. 

 

(3)   As soon as possible, you should draft a written contract with your surrogate.   You will need to include various terms including the intended parental rights of all parties involved and any fee arrangements you may have made.  Iowa Code Section 710.11 implies that surrogacy contracts will be enforced and their use is not considered a form of "baby selling." Now that same-sex couples have the right to marry in Iowa, a court would probably look favorably upon a surrogacy agreement involving LGBT individuals; however such arrangements have not yet been considered.  

 

 

(4)   If possible, obtain a pre-birth order. Currently, Iowa trial courts allow intended parents to obtain pre-birth orders designating the intended parent or parents as the mother and/or father but only if the intended parent is also a genetic parent. 

 

(5)   Terminate the surrogate's parental rights. Although Iowa law does not answer the question of "maternity," in practice, a woman is presumed to be the mother of a child she has given birth to. Therefore the surrogate's parental rights must be terminated before the intended parents may begin adoption proceedings. If the surrogate is married, her husband presumed to be the father of the child, but this presumption can be rebutted through routine genetic testing. The termination of parental rights is a complex statutory process that must be followed perfectly.

 

(6)   Begin adoption proceedings. Since there are no statutory provisions addressing surrogacy in Iowa, the intended parents must follow statutory adoption procedures in order to formalize and legalize their relationship to the child. The adoption process will be different depending on the intended parent or parents' genetic relationship to the child.

Surrogacy is a great way for deserving couples to have children when, for whatever reason, they are not able to have them naturally. But you need to make sure to proceed with caution through this emotionally and legally tricky

What is a Custody Evaluation?

As a family law attorney, I often have clients ask about custody evaluations. A custody evaluation is a written report by a neutral professional that makes a recommendation to the Court as to what custody/visitation arrangement would be in the best interests of the children involved. Custody evaluations are most often utilized in highly contested custody disputes. In the course of their investigation, a custody evaluator will interview both parents, observe the children with each of the parents, conduct age-appropriate interviews with the children, and interview other significant people such as teachers, daycare providers, healthcare providers, extended family members and friends. A well drafted report will contain a summary of the information collected, an assessment of the family and the needs of the children and will also recommend a custody/visitation arrangement. The custody evaluator's recommendation is just one factor that the Court will take into consideration when deciding what custody/visitation arrangement is in the children's long range best interests.      

The "Oscar Curse"

The 83rd Annual Academy Awards are quickly approaching. On February 27, 2011, Annette Benning, Nicole Kidman, Jennifer Lawrence, Natalie Portman or Michelle Williams will take home the Oscar for Best Actress. Whoever wins may have a reason to be concerned according to researchers at the University of Toronto. According to a recent study conducted there, winners of the Best Actress Award are statistically at a higher risk for divorce than their fellow nominees who do not win. Researchers compared the two groups from 1936 to 2010 and found that winners were 1.68 times more likely to divorce than non-winners. Interestingly, the study also found that this so called "Oscar Curse" does not hold true for winners of the Best Actor Award. Time will tell if snagging the Oscar for Best Actress this year spells doom for the winner's love life. 

The "Accidental" Marriage?: The Truth About Common Law Marriage in Iowa

You may recall the scene in the movie Legally Blonde where first-year law student Elle Woods joins Paulette, her cosmetologist friend, on a trip to Paulette's jerk of a former live-in boyfriend's home. At the trailer park, Elle saves the day spouting confusing (and humorously incorrect) legal jargon about common law marriage, cohabitation, and the "benefits of property law," ultimately resulting in Paulette's regained possession of her beloved bulldog. Elle and Paulette then speed away in a convertible with the former couple's property equitably divided. The viewer leaves the scene satisfied with a vague feeling that justice has been served. 

Although no reasonable person would look to a Reese Witherspoon movie for sound legal guidance, this easy-breezy application of common-law marriage mirrors general misconceptions about the doctrine. There seems to be a mistaken belief that by living together for an extended period of time a couple can unintentionally create a common-law marriage and thereby enjoy the benefits and legal protections of a marriage contract. This is simply not accurate.

Today, very few states even recognize common-law marriage. Although, Iowa is one of the few that still do, the burden on a party asserting the marriage in Iowa is very high. When a couple is married by common law, they are legally married for all purposes and may enjoy all the benefits of marriage including the equitable division of property in a divorce, the establishment of rehabilitative alimony, and inheritance rights upon the death of a spouse. Before these benefits can be asserted, the existence of a common-law marriage must be proven to the court. Because common-law marriages are not viewed as furthering a public purpose, claims of common-law marriage are viewed with suspicion and are carefully scrutinized by the courts. Therefore, a party asserting common-law marriage must prove the following three elements by clear, consistent and convincing evidence: (1) present intent and agreement to be married; (2) continuous cohabitation; and (3) general and substantial declaration that the parties are husband and wife.

The first element, "present intent and agreement to be married," basically means that a common-law married couple must have agreed to be married. This intent element is often the most difficult to establish. Present intent is not satisfied by an agreement to marry in the future. The intent must be to be married starting NOW. A mere agreement to be husband and wife without the present intention to assume the relationship does not constitute a marriage. This agreement does not need to be expressed in words and can be implied by a couple's conduct.  

Normally, a couple will begin living together after getting married, therefore continuous cohabitation is an element of common-law marriage. However, cohabitation is essentially just circumstantial evidence of intent and in no way can cohabitation alone establish a common-law marriage. A stable and significant live-in relationship with all the essential characteristics of an ideal marriage is not a common-law marriage without the existence of the actual intent to be married. Iowa does not require cohabitation to exist for a particular amount of time before it is considered "continuous."

Finally, there can be no "secret marriage." The couple must make a public declaration or hold out to the public that they are married in order to be considered common-law married. This element is considered the "acid test" of a common law marriage. Public declarations of marriage can be done in a variety of way and need not be entirely consistent. Some examples include use of the same last name, maintenance of joint bank accounts, using married labeled such as Mr. and Mrs., telling friends relatives, or acquaintances they are married, filing joint income tax returns, failing to correct people who refer to the couple as married. 

Common-law marriages are fairly rare and have the disadvantages of uncertainty and doubt until some sort of conflict makes the legal confirmation of the marriage necessary. However, the existence of the doctrine of common-law marriage guards the reasonable expectations of Iowans in certain stable and continuous relationships that deserve to be protected.

              

Division of Property: Premarital Agreements

It is rumored that Elin Nordegren, Tiger Woods' estranged wife, will receive close to $100 million in their divorce settlement.  Other celebrity figures have also paid big bucks when their marriages have ended.  For example, Michael Jordan paid his ex-wife, Juanita, an impressive $168 million to end their marriage.  Their dissolution was subject to the jurisdiction of the courts in Illinois.  Sir Paul McCartney paid Heather Mills an estimated $48.7 million dollars after only four years of marriage.   Their settlement was dictated by a court in Britain.  In Iowa, absent a premarital agreement to the contrary, the general goal of the court in divorce cases is to make the division of property approximately equal.  Taking this into consideration, could a "celebrity" property settlement happen in Iowa?  Definitely.  As such, if you or your spouse have substantial assets and you do not want the law to dictate who gets what if your marriage ends, you should consider a premarital agreement.  Chapter 595A of the Iowa Code controls premarital agreements in Iowa.  Premarital agreements may include provisions relating to: (a) property rights and obligations of the parties; (b) rights of disposing of, managing and controlling property; (c) disposition of property upon death or divorce; (d) the making of wills, trusts, or other arrangements to carry out the provisions of the agreement; (e) disposition of life insurance death benefits; (f) choice of law; and (g) any other matter not in violation of public policy or criminal statute.  

Now What?

"Now what?" This is a common question that I hear from clients after their divorce is final. Generally, the following is a few things I would encourage people to keep in mind after a divorce:

A Decree of Dissolution of Marriage is a final order; however, there are certain remedies available to a person if changes need to be made. It is imperative that you contact your attorney as soon as you become aware of the need for changes. There are time-sensitive deadlines associated with some of the remedies available to a person and your ability to pursue them may be lost if you do not take action immediately. 

If your ex-spouse fails to comply with the orders of the court, there are certain actions you can take to compel compliance. In the event of non-compliance, you should contact your attorney to discuss your options. I would also recommend; however, that you first try and obtain compliance yourself by making a request to your ex-spouse in writing. Taking this first step on your own has the potential to minimize your future legal fees.   Additionally, copies of the letters could prove to be useful if you find yourself back in court at a later date.   

 

You should review existing wills, trusts, life insurance, annuities, pension and profit sharing plans, and other types of insuring agreements in which you have named your former spouse as a beneficiary. If you do not want your former spouse to remain a beneficiary upon the policies or plans, then you must change the beneficiary. I would also recommend updating your estate planning.

 

Getting divorced is a very emotional process. You have not only ended a relationship that you thought would last forever, but you have also likely spent the past several months working through the legal system. If you are still struggling with the emotional aspects of your divorce, make time to meet a friend for coffee or schedule an appointment to speak with a therapist. Remember - dealing with the emotional side of a divorce is just as important as dealing with the business side. 

A Child's Right to Choose?

Generally, a child has a right to have his or her opinion considered by the court in child custody cases. It is a common misconception; however, that this right becomes controlling when a child reaches a certain age. A child's age and maturity level are merely factors that the court considers when assessing how much weight to give a child's preference for one parent over the other. A child's right to have his or her opinion considered should never be misconstrued as their right to choose where he or she wants to live. The ultimate goal of the court in child custody cases is to establish a custody arrangement that is in a child's long-range best interest. As such, the custody arrangement established by the court may or may not be in line with a child's wishes regardless of their age. 

Cruel and Inhuman Treatment?

Having previously blogged about Iowa recognizing "no-fault" divorce, I found a recent article from the New York Law Journal to be particularly interesting. The article discussed a 2009 New York case in which one party cited abandonment and cruel and inhuman treatment in support of their dissolution action. While the Court ultimately granted the dissolution on the grounds of abandonment, the basis for the cruel and inhuman treatment claim is what made this article so intriguing. At trial, in support of the claim, testimony was presented that one party charged the other with a three-foot Japanese sword bringing the blade tip within inches of contact. The police were not called and no physical injuries were sustained; however, additionally testimony was presented regarding the alleged victim's fear of "sneak attacks" and their resulting difficulty sleeping. In declining to grant the dissolution on the basis of cruel and inhuman treatment, the Court found that the incident described, while credible, was not sufficient to show a "course of conduct so harmful to the plaintiff that it makes cohabitation unsafe or improper." The idea that Iowa recognizes "no-fault" divorce can be challenging for some people. Particularly those people who are looking for confirmation that they are not "at fault" or not the cause of their marriage break-up. Reading this article; however, I wonder if anybody would want to have to "prove" their case when in some jurisdictions being attacked by a three-foot sword is not enough to obtain a divorce?   

Alienation of Affection Claims

Seven states in the United States recognize alienation of affection claims. This type of claim allows a spouse to sue third parties that they allege interfered in their marriages. While Iowa is not one of the states that recognize alienation of affections claims, a recent North Carolina case caught my eye. Under centuries-old North Carolina case law, a woman sued her husband's alleged mistress for alienation of affection.  She claimed that the mistress had deliberately seduced her husband and caused the demise of her lengthy marriage. A jury agreed with her and awarded her $5 million in compensatory damages and $4 million in punitive damages to be paid by the mistress. The mistress has indicated she will appeal the decision.   

 

 

Divorce: An Overview of Issues

"No-Fault" Divorce:  Iowa has what is known as a "no-fault" divorce law. This means that neither party is required to prove that the other party was "at fault" or caused the marriage breakup. Instead of proving fault, a person must simply show there has been a breakdown in the marriage relationship, the legitimate objects of matrimony have been destroyed, and there remains no reasonable likelihood that the marriage can be preserved. 

CustodyChild custody can be divided into two categories - legal custody and physical custody. Rights and responsibilities of legal custody include, but are not limited to, decision making affecting the child's legal status, medical care, education, extracurricular activities and religious instruction. Joint legal custody is common and means that neither parent has legal custodial rights superior to the other parent. While joint legal custody is common, it does not require joint physical custody. Physical custody or physical care means the right and responsibility to maintain a home for the minor child and provide for the child's routine care. Physical custody may be given to either parent, subject to the visitation rights of the other. In the alternative, joint physical care can be awarded and in which case neither parent has physical rights superior to that of the other parent. In determining custody, the Court looks at what is in the "best interests of the child." In doing so, the Court also tries to assure maximum continuing physical and emotional contact with both parents.

 

VisitationVisitation rights will, in most instances, be granted to the non-custodial parent. Visitation between a non-custodial parent and a child typically involves visitation during the week, on weekends, holidays, birthdays, and school/summer vacations.   

 

Child Support:  New child support guidelines were adopted by the Iowa Supreme Court effective July 1, 2009. The new guidelines are based upon a pure income shares model of child support. Either parent can be ordered to pay child support and typically a parent's child support obligation continues until the child for whom support is being provided, (1) reaches 19 years of age or graduates from high school, whichever occurs first; (2) marries; (3) dies; or (4) otherwise becomes emancipated and self-supporting.  

Alimony

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.
 

Use of Mediation in Family Law Disputes

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. 

 

Iowa Supreme Court Rules in Gay Marriage Case

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 

New Child Support Guidelines

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/

New Child Support Guidelines?

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.

Divorce & the Economy

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.

Job Perks a Marital Asset?

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.

Stability Helps Children of Divorce

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.

When S/He Won't Pay

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.

Striking Back

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.

Marriage by Proxy

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. . . .

Money and Divorce

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.

Hiding Assets

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.

What Not to Do During Divorce

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.

London is Divorce Capital

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."

Divorce & Your E-mail Inbox

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.

I Didn't Get My Child Support This Month!

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.

Full Disclosure Required in Prenuptial Agreements

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.

Choosing Sides in Break-ups

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.

Mediation: Good for the Family

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.

Divorce and Your Credit Score

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.

Bringing Children Around New Relationships

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.

Children Coping With Divorce

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.

Alienation of Affection: The Spurned Spouse

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. 

Is Divorce a Cure?

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?

Alimony under Iowa Law

During divorce proceedings about half my clients ask whether they or their spouse is entitled to alimony. The answer is always "it depends."

 
After the equitable distribution of the marital estate the court will look at the whole spectrum of property available to both spouses—the marital property divided as well as the non-marital property under each spouse’s control. If one party is left with a deficit, then a court is to consider awarding alimony. In Iowa three types of alimony are recognized-periodic, rehabilitative, and reimbursement.

 
Periodic alimony is a monthly payment which terminates automatically upon the death of the person paying or the death or remarriage of the receiver. It can be modified if there is a material change in circumstances—either by increasing, decreasing, or terminating it. Finally, it is taxable to the recipient and deductible by the payor.

Rehabilitative alimony is typically awarded to parties who have put their career on hold while taking care of the marital home. It is meant to rehabilitate the individual into a job and become self-supporting.

 
Reimbursement alimony is intended as repayment to a spouse who put their partner through school where the financial rewards of the education have not materialized due to the short interval between the person obtaining the degree and the divorce.

 

The Court weighs other factors into its decision. Speak to a family law practitioner to see whether you qualify.