Divorce: Things to Consider

Making a difference in the lives of Iowa women

Iowa Department of Human RightsLucas State Office Building

Des Moines, IA 50319

Telephone: 515/281-4461, 800/558-4427Fax: 515/242-6119

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A Broad Overview of Areas of Concern

Divorce:Things to Consider

Divorce: Things to Consider

This pamphlet on divorce is meant to give a broad overview of some of the areas of concern which might ariseduring a divorce proceeding. IT IS BY NO MEANS COMPREHENSIVE AND SHOULD NOT BECONSTRUED AS LEGAL ADVICE. Divorce by its nature is personal and each case is different; therefore,it is strongly recommended that you obtain an attorney to properly represent your interests in any of the mattersmentioned in this pamphlet or any others that may arise. The following is meant to give you a guide to typicalareas for discussion with your attorney.

Thanks to:May 1978—Patricia Kamath, attorney, Iowa City

November 1981 (revised)—Claire Patin, attorney, IndianolaMarch 1986 (revised)—Claire Patin, attorney, Indianola

Patricia Shoff, attorney, Des MoinesTodd Jansen, student, Drake University Law School

October 1988 (revised)—Janice Becker, attorney, Iowa CityJill Pitsenbarger, student, University of Iowa

April 1990 (revised)—Sharon A. Mellon, attorney, Iowa CityJuly 1992 (revised)—Sharon A. Mellon, attorney, Iowa CityMarch 1996 (revised)—Susan Dulek, attorney, Iowa City

September 1998 (mediation section revised)—Annie Tucker, Iowa City

DIVORCE: THINGS TO CONSIDER/1

Overview of Divorce Procedure ------------------------------------------------------------- 2Specific Issues--------------------------------------------------------------------------------- 3Custody ---------------------------------------------------------------------------------------- 3Visitation --------------------------------------------------------------------------------------- 4Child Support --------------------------------------------------------------------------------- 4Spousal Support ------------------------------------------------------------------------------ 4Property Settlements -------------------------------------------------------------------------- 5Debts ------------------------------------------------------------------------------------------ 6Homestead ------------------------------------------------------------------------------------ 6Life Insurance --------------------------------------------------------------------------------- 6Health Insurance/Uninsured Medical and Dental Expenses -------------------------------- 6College Education ----------------------------------------------------------------------------- 6Removal of Children from the State --------------------------------------------------------- 6Access to Records. --------------------------------------------------------------------------- 7Birth Name ------------------------------------------------------------------------------------ 7Attorney Fees --------------------------------------------------------------------------------- 7Tax Exemptions ------------------------------------------------------------------------------- 7Income Tax Returns--------------------------------------------------------------------------- 7Wills -------------------------------------------------------------------------------------------- 7

Overview of DivorceProcedure

Iowa has what is known as a “no-fault” divorcelaw. This means that one party is no longerrequired to prove in an adversarial proceeding thatthe other party was “at fault” or caused themarriage breakup. Instead of proving fault, aperson must simply show there has been abreakdown in the marriage relationship, the“legitimate objects of matrimony” have beendestroyed, and there remains no reasonablelikelihood that the marriage can be preserved. Theparty seeking the divorce is the only one who needsto testify if all of the issues (e.g., custody, visitation,support, property and debt division) have beenresolved by a written agreement or the other spousecompletely ignores the divorce action (“default”).

The first step in obtaining a divorce is to file apetition with the Court for “dissolution ofmarriage”—defined as a “termination of themarriage relationship” and synonymous with theterm “divorce.” A copy of the dissolution petitionand an original notice from the Clerk of Court mustbe given to the other spouse. Before a person canfile a petition for dissolution, he or she must haveresided in the state for at least one year, or theperson’s spouse must be a resident of Iowa and bepersonally served (notified in person) in Iowa. Thecounty in which the dissolution is filed is the oneeither spouse resides in.

After the petition has been filed, and the otherspouse is served with (receives a copy of) thepetition, a waiting period of 90 days is requiredbefore the divorce decree can be granted. Thiswaiting period can be waived only for good causeand a showing of emergency or necessity to satisfythe Court that immediate action is required. Duringthe 90 days, temporary orders may be obtained byeither spouse that will give her or him attorney fees;temporary custody of the children; child support;alimony; or, if there has been physical abuse, theright to occupy the family home. It is also possible


to get an injunction to prevent a spouse fromdisposing of marital property prior to the finalsettlement. If one spouse has harassed or physicallyabused the other, a temporary injunction may beobtained to prevent these acts from recurring.

On request of either spouse, the Court will providefor a 60-day counseling period—known asconciliation—during the 90-day waiting period.The conciliator may be someone requested by theparties or one of the following: clergy, physician,public or private marriage counselor, orrepresentatives from family service agencies orcommunity mental health centers.

The 90-day waiting period is also used by theparties to negotiate a settlement of such matters asproperty ownership, child support, spousal support(alimony), and child custody. In most cases,settlements are agreed upon through this negotiationprocess, reduced to writing, and approved by theCourt at a final hearing. In cases where the partiescannot reach an agreement, a pretrial conference isscheduled. At this pretrial conference, the partiesand their attorneys meet formally at the courthouseto determine which issues the Court must resolve.If there are children, the court will order the partiesto go to a class (probably will last four hours),which will discuss how children often are caught inthe middle of the parents' divorce. A trial will bescheduled sometime after the pretrial conferenceand at least 90 days after the petition was filed.Divorce cases are heard by a judge without a juryand generally these trials can be closed to the publicif the Court finds it is in the parties’ or thechild(ren)’s best interests.

Ordinarily, questions of wrongdoing and fault willnot be heard. However, the question of personalfitness of each party will be considered if custody ofthe child(ren) is at issue. The Court may, on its owninitiative or at the request of either party, appoint animpartial third attorney to represent the interests ofthe child(ren) at the hearing. The Court may alsoorder that a home study or child custody evaluationbe made to assist the Court in resolving the issue ofchild custody, or may order the parties toparticipate in mediation with a mediator to try to

resolve the custody/visitation issue(s). In nearlyevery case, the parties will have to pay the costs ofthe home study, child custody evaluation, andmediation.

The use of mediation is increasing in Iowa. Inmediation, a neutral third party (not a judge) assiststhe parties in talking, listening, and reaching asettlement of some or all of the issues in their case.The mediator does not give advice or makedecisions. Parties are encouraged to consult anattorney so they understand the long-term legalramifications of their options. The parties makedecisions based on what is important andacceptable to both of them.

Either party can request to participate in mediationat any time, or the Court can order the parties toparticipate. The Court orders parties to mediation indivorce- and custody-related cases that ask theCourt to make a decision. If the parties are unableto reach complete agreement in mediation, theparties can then request the Court to make adecision on any unresolved issues at a hearing ortrial. Parties may request an excuse, or waiver, frommediation where there is a history of domesticviolence or severe abuse.

It is important to note that not all cases arenegotiated to settlement within 90 days. Somecases do take longer; however, the courtadministrators monitor cases and will automaticallyschedule a pretrial conference if the case has beenon file for l20 days. Civil time standard forprocessing contested dissolution cases assumesthey can be completed in eight months anduncontested cases in four months.

Specific Issues

CustodyIn making a custody decision, the Court’sparamount concern is the “best interests of thechild.” In deciding what is in the “best interests ofthe child”, the Court should try to assure theopportunity for maximum continuing physical and


emotional contact with both parents unlesscircumstances, such as harm to the child(ren),dictate otherwise. Therefore, the Court willconsider joint legal custody of the child(ren) uponapplication of either party. In fact, if the Courtdenies joint legal custody, it must state its reasonsfor doing so. Joint legal custody does not requirejoint physical custody. Physical custody may still begiven to one parent, subject to visitation rights of theother parent. The Court will not award jointphysical custody (50/50 care) if custody is indispute, but some judges will approve joint physicalcare provisions if the parents have agreed to it andcan show the Court they have shared joint physicalcare of the child(ren) during their separation, andthe child(ren) have not been adversely affected.

Some of the factors the Court will look at indetermining the “best interests of the child(ren)”include:

! whether each parent would be a suitablecustodian for the child(ren);

! whether the psychological and emotionalneeds and development of the child(ren)will suffer due to lack of active contact withand attention from both parents;

! whether the parents can communicate witheach other regarding the child(ren)’s needsand each parent can support the other’srelationship with the child(ren);

! whether both parents have actively caredfor the child(ren) before and since theseparation;

! whether the custody arrangement is inaccordance with the child(ren)’s interests,or whether the child(ren) has (have) strongopposition, taking into consideration thechild’s age and maturity;

! whether one or both of the parents agreeor are opposed joint custody;

! the geographic proximity of the parents; and! whether the safety of the child(ren), other

children, or the other parent will bejeopardized by the awarding of jointcustody or by unsupervised or unrestrictedvisitation.

If there has been a history of domestic abuse, thereis a presumption that joint legal custody isinappropriate.

If legal and physical custody are awarded to oneparent, the other parent is usually granted visitationrights. Also, the Court will seldom separate siblingsinto different homes. If the noncustodial parent hasabused or neglected the child(ren), the Court couldprovide for supervised visitations.

The Court will have looked closely at the behaviorof both parents during the marriage and after theirseparation. Before moving out of a marital homewithout your child(ren), you should consult anattorney if you want custody or primary care. Oncethe custody determination is made by the Court, it isvery difficult to change or modify the decree.

VisitationEither general or specific visitation rights may begranted to the noncustodial parent. It is usuallypreferable to spell out visitation rights in theagreement or decree. Consideration should begiven to visitation on some weekends, holidays,child(ren)’s and parent’s birthdays, and school/summer vacations. Grandparents may also havevisitation rights, and provisions may be included inthe decree as to their exercise of these rights.

Child SupportThe Court must now set child support paymentsaccording to child support guidelines established bythe Supreme Court of Iowa, unless the Courtdetermines in writing that an injustice would occurby applying the guidelines. The guidelines take intoconsideration both parents’ net incomes and thenumber of children to be supported. If requested,the Court will usually order temporary child supportwhile the dissolution is pending.

Women as well as men will be required to pay childsupport to the primary custodian. Child supportcan be changed or modified, but it must be shownthat there is a “material change of circumstance” notcontemplated by the Court and the parties at thetime of the decree. From a tax standpoint, childsupport payments are not deductible to the person


paying them or taxable to the recipient.

Spousal SupportSpousal support or alimony may be awarded toeither a husband or a wife. Some of the factors theCourt will consider in granting such include:

! the length of the marriage;! the age and physical and emotional health

of the parties;! the distribution of property;! the educational level of each party at the

time of marriage and at the time the actionis commenced;

! the earning capacity of the party seekingmaintenance, including educationalbackground, training, employment skills,work experience, length of absence fromthe job market, custodial responsibilities forchildren and the time and expensenecessary to acquire sufficient education ortraining to enable the party to findappropriate employment;

! the feasibility of the party seekingmaintenance becoming self-supporting at astandard of living reasonably comparable tothat enjoyed during the marriage, and thelength of time necessary to achieve thisgoal;

! the tax consequences to each party;! any mutual agreement made by the parties

concerning financial or service contributionsby one party with the expectation of futurereciprocation or compensation by the otherparty;

! the provision of an antenuptial agreement;and

! other factors the Court may determine tobe relevant in an individual case.

The Court can award lifetime alimony to a disabledor an older spouse whose income is significantlyless than the other spouse’s, and where it appearsunlikely, due to age or disability, that thedisadvantaged spouse will be able to significantlyimprove his or her financial condition.


The Court can also award rehabilitative alimony toa spouse for a shorter, defined period of time toassist that spouse in making the transition fromhomemaker through a schooling or training periodinto the work force. The Court can also awardreimbursement alimony to a spouse who has madesignificant contributions (homemaking, child careand/or earnings) to the other spouse’s advanceddegree or professional license.

Typically, lifetime and rehabilitative alimonyterminate when the recipient remarries or dies, butreimbursement alimony usually does not terminateupon remarriage. As a general rule, alimonypayments are taxable to the recipient and deductibleto the payer. If no alimony is received at the timethe marriage is terminated, neither spouse can everobtain alimony from the other in the future. Becauseof this rule, it may be prudent to obtain even $1 ofalimony per year so that in the event of illness orinjury that would incapacitate a spouse fromworking, she/he could reopen the issue of theamount of alimony with the Court. Alimony, likechild support, can be modified (increased,decreased or terminated) in the event of asubstantial unforeseen change in circumstances notin contemplation of the Court or the parties whenthe decree was entered.

Property SettlementsIowa is an “equitable distribution” state. The Courtis required to make a distribution of assets anddebts which is fair based upon all the facts andcircumstances of each case. Equitable distributiondoes not always mean an equal distribution. Indetermining an equitable division of the parties’assets and debts, the Court will consider:

! the property brought into the marriage byeach party;

! the age and physical and emotional healthof the parties;

! the length of the marriage;! the contribution of each party to the

marriage, giving appropriate economicvalue to each party’s contribution inhomemaking and child care service;

! the earning capacity of each party,

including educational background, training,employment skills, work experience, lengthof absence from the job market, custodialresponsibilities for children and the time andexpense necessary to acquire sufficienteducation or training to enable the party tobecome self-supporting at a standard ofliving reasonably comparable to thatenjoyed during the marriage;

! the desirability of awarding the family homeor the right to live in the family home for areasonable period to the party havingcustody of any children. Or, if the partieshave joint legal custody, to the party havingphysical care of the child(ren);

! the amount and duration of an ordergranting support payments to either party,and whether the property division should bein lieu of such payments;

! other economic circumstances of eachparty, including pension benefits, vested orunvested, and future interests;

! the tax consequences to each party;! any written agreement made by the parties

concerning property distribution;! the provisions of any antenuptial

agreement;! other factors the Court may determine to

be relevant in an individual case;! the contribution by one party to the

education, training or increased earningpower of the other.

Inherited property and gifts received by either partyare generally not divided between the parties, andare considered the individual property of therecipient. However, if these assets becomecommingled with marital property or are dissipatedin family support, it may be difficult to recover theirvalue. Property can include things like pensionplans, partnership interests, stock in professionalcorporations or family businesses (whetherincorporated or not), life insurance cash value,IRAs and employee stock option plans, to name afew, as well as real estate, vehicles, farm machinery,livestock, grain, household goods, bank accounts,stocks and bonds. The services of otherprofessionals, e.g., appraisers and accountants, may


be required to determine the extent and value ofassets, which can significantly increase the cost of adivorce action.

DebtsDetermining debt liability may be more importantthan property division, and usually this is done aspart of the equitable distribution. Sometimes, onespouse will declare bankruptcy after the divorce,but the other spouse will not do so. The creditorscan, and will in many cases, attempt to collect thedebts from the spouse not declaring bankruptcy.Unfortunately, the Court in a dissolution proceedingcannot prevent a creditor from collecting joint debtsfrom either spouse. The Court can only decidewhich spouse is liable for the debt, as between theparties, but creditors are not bound by thatdecision.

HomesteadOften the parties’ major asset is the equity in thehome. It may be impossible for the personassuming ownership to immediately pay to the otherparty his or her share of the equity. Periodicpayments may be arranged, or a lump sum paymentmay be made after sale of the house or at a futuredate, such as the date the youngest child reachesmajority or the custodial spouse remarries. If thecustodial or primary care parent can afford thehouse payments, often they will be allowed toremain in the home for the children’s sake until thechildren complete high school (absent remarriage,sale of the home, etc.) before they are required topay off the cash settlement on the home to theirformer spouse.

Life InsuranceSometimes the Court will require each party tomaintain a life insurance policy as guarantee of childsupport or alimony payments. The beneficiary maybe the spouse, the children, or a trustee, since,under Iowa probate law, a minor child may notreceive outright in excess of $4,000 frominheritance. It may be difficult to determine that therequired life insurance policy is being maintainedafter the divorce. A provision should be included inthe agreement requiring annual proof of policypremiums payment and prohibiting borrowing

against the policy, which would reduce its deathbenefit.

Health Insurance/Uninsured Medical andDental ExpensesThe Court often requires one parent to providehealth insurance for the children, which may be inaddition to his/her monthly child support obligation.The agreement between the parties or the decreeshould specify what the insurance covers (e.g.,hospitalizations, eyeglasses, dental and orthodontiawork, and prescriptions drugs). In addition, theCourt may require one parent to pay all uninsuredmedical, dental, orthodontia, etc., expenses, butmore typically the parties divide these expenses.

College EducationUsually child support will not be awarded past achild’s eighteenth birthday or completion of highschool, whichever occurs last. The Court canprovide for support for a child who goes on to acollege or trade school or the parties may agree thatboth will contribute to college education costs andthis agreement is enforceable. In families wherecollege is anticipated, care should be taken thatboth maintain their obligation at the same level theywould have maintained if the divorce had notoccurred. The Court will not require parents to payfor expensive private college educations unless theparents agree to it. The Court may also require thechild to contribute a certain percentage to his or hereducational expenses, in addition to the parents’contributions. The Court will not require parentalcollege or vocational educational support beyondthe child’s twenty-second birthday, and will requirethat the child be a full-time student attending acollege, university or vocational school in goodfaith. Post-high school educational support is not tobe based upon the Child Support Guidelines, butwill be set in an amount which is fair and equitable.

Removal of Children from the StateThe parent who has primary physical care of thechildren provides their primary residence, and isthus entitled to change this residence even bymoving out-of-state. Depending on the individualcase, the Court can prohibit a custodial parent frommoving children out-of-state without giving the other


parent notice and an opportunity to request ahearing. It is generally advisable to provide for thisspecifically in the decree. This does not mean thatthe custodial or primary care parent cannot move; itdoes mean that the other parent would have theopportunity to request a hearing if he or shebelieves the move would cause specific harm to thechild(ren), request a change in visitation toaccommodate greater geographic distance betweenthe parents, or ask the Court to determine who willpay the added transportation costs.

Access to RecordsBoth parents, regardless of who has custody, havea legal right to access to a child’s medical, schooland law enforcement records, unless specificallydenied by a Court order.

Birth NameA provision may be made in the divorce decree forthe wife, and now in some cases the husband, toregain her/his birth name or former married name,and no other legal action is necessary. Somespouses prefer to retain their married names, sothey will have the same surname as their minorchild(ren).

Attorney FeesIn cases where one spouse has a significantly higherincome than the other, the Court may require theformer to pay the other spouse's attorney fees in thedivorce proceeding. If there is a trial, these feescan be sizable and should be considered indetermining the ultimate award of property.

Tax ExemptionsThe IRS provides that the parent who has custodyof a child for the greater part of the calendar yearmay claim the child as an income tax dependent ifthe parent provides more than half the dependent’ssupport. The exceptions to this rule arise when: a)parents sign a multiple support agreement; b) thecustodial parent releases in writing the right to claimthe exemption; or, c) there is a contrary provision ina pre-l985 decree or separation agreement. Thesettlement should spell out any agreements. It isalso possible for the parents to split the exemptionswhen there is more than one child or to alternate the

child as a dependent every other year. The primarycustodian may want to condition waiving theexemption only if child support is fully paid. As arule, you should consult someone well-briefed in taxaspects, since taxes are a very important part of anydivorce proceeding.

Income Tax ReturnsMarital status for filing income tax returns isdetermined on the last day of the fiscal year foreach taxpayer. Anyone who files on a calendaryear basis (January l to December 3l) must file as amarried person unless the divorce is final by the endof the year, or the parties have been separated formore than six months and one spouse qualifies ashead of household. Provision should be made inthe decree for the division of any tax refunds.Again, specific tax advice should be obtained in alltax matters.

WillsIt is advisable to review a will or write a new oneduring a divorce proceeding. If the spouse diesbefore the divorce is final, the property will bedistributed as if the spouse were married, unless thewill provides differently. Even if the will does notprovide for a surviving spouse, if still married at thetime of death, a surviving spouse may elect againstthe will and receive a statutory share of the propertyor approximately one-third of the property. If thewill is not rewritten during the pendency of thedivorce, it is certainly advisable to do so once thedivorce is finalized. However, any bequest made toa spouse in a will written during the marriage isautomatically terminated when the divorce decree isentered. Parents should consider setting up a trustfund to receive insurance proceeds and pensionsurvivorship proceeds, in addition to other assets tobe held for the benefit of the child(ren).

Documents

Divorce: Things to Consider