We serve clients in North Central Iowa including Clear Lake, Mason City and surrounding communities.
Frequently Asked Questions:
Do I need legal grounds for dissolution of marriage? No. Iowa is a “no-fault” state and all that is required is that there be a “breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”
What factors do the Iowa courts consider in determining whether joint custody should be awarded? If the court finds that a history of domestic violence is present, a rebuttable presumption against awarding joint custody exists. The court will also consider the denial by one parent of the child’s opportunity for maximum continuing contact with the other parent, without just cause, as a significant factor. Finally, the court will take the following factors which are set out in Iowa Code Section 598.41 into consideration:
- Whether each parent would be a suitable custodian for the child.
- Whether the psychological and emotional needs and development of the child will suffer due to lack of active contact with and attention from both parents.
- Whether the parents can communicate with each other regarding the child’s needs.
- Whether both parents have actively cared for the child before and since the separation.
- Whether each parent can support the other parent’s relationship with the child.
- Whether the custody arrangement is in accord with the child’s wishes or whether the child has strong opposition, taking into consideration the child’s age and maturity.
- Whether one or both the parents agree or are opposed to joint custody.
- The geographic proximity of the parents.
- Whether the safety of the child, other children, or the other parent will be jeopardized by the awarding of joint custody or by unsupervised or unrestricted visitation
What does “joint legal custody” mean? As outlined in Iowa Code Section 598.1(3) ‘”joint custody” or “joint legal custody” means an award of legal custody of a minor child to both parents jointly under which both parents have legal custodial rights and responsibilities toward the child and under which neither parent has legal custodial rights superior to those of the other parent. Rights and responsibilities of joint legal custody include, but are not limited to, equal participation in decisions affecting the child’s legal status, medical care, education, extracurricular activities, and religious instruction.”
What is “joint physical care”? Iowa Code Section 598.1(4) defines joint physical care as “an award of physical care of a minor child to both joint legal custodial parents under which both parents have rights and responsibilities toward the child including, but not limited to, shared parenting time with the child, maintaining homes for the child, providing routine care for the child and under which neither parent has physical care rights superior to those of the other parent.”
What factors are considered in determining if joint physical care should be awarded? In determining whether or not to award shared physical care, the court will first consider the best interest of the children as well as those statutory factors set forth in Iowa Code Section 598.41. The Iowa Supreme Court has also identified the following four additional factors as being relevant: (1) stability and continuity of care giving; (2) the ability of the parents to communicate and show mutual respect for each other; (3) the degree of conflict between the parents, and (4) whether or not the parents have a general agreement related to child rearing practices.
Does Iowa recognize a common law marriage? Yes. The party wishing to establish a common law marriage in Iowa must prove, beyond a preponderance of the evidence, the following: (1) a present intent and agreement by both parties to be married; (2) continuous cohabitation, and (3) public declaration that they are husband and wife.
What factors do courts look at in deciding if alimony should be awarded? Iowa courts can set support payments to either party for either limited or indefinite length after consideration of the following factors set out in Iowa Code Section 598.21A:
- The length of the marriage.
- The age and physical and emotional health of the parties.
- The distribution of property made pursuant to section 598.21.
- The educational level of each party at the time of marriage and at the time the action is commenced.
- 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.
- 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.
- The tax consequences to each party.
- 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.
- The provisions of an antenuptial agreement.
- Other factors the court may determine to be relevant in an individual case.
Is gifted or inherited property treated the same as other marital property? No. The Iowa Supreme Court has discussed this issue in many cases over the years, including but not limited to, In re Marriage of Muelhaupt, 439 N.W.2d 656 (Iowa 1989) and In re Marriage of Thomas, 319 N.W.2d 209 (Iowa 1982). Iowa Code Section 598.21(2) provides that property given to or inherited by either party ordinarily is to be considered the property of that party. However, this section does not necessarily demand that property acquired by gift or inheritance must always be set aside and omitted from consideration in the property division altogether. The court may, to avoid injustice, divide property inherited by or given to one of the parties. In considering whether to divide gifted or inherited property, the court will look at the following factors:
- Contributions of the parties toward the property, its care, preservation or improvements;
- The existence of any independent close relationship between the donor or testator and the spouse of the one to whom the property was given or devised;
- Separate contributions by the parties to their economic welfare to whatever extent those contributions preserve the property for either of them;
- Any special needs of either party, and;
- Any other matter which would render it plainly unfair to a spouse or child to have the property set aside for the exclusive enjoyment of the donee or devisee.
Are there different types of alimony? Yes. Iowa recognizes traditional alimony, rehabilitative alimony, and reimbursement alimony. Rehabilitative alimony was conceived as a way of supporting an economically dependent spouse through a limited period of re-education or retraining following divorce, thereby creating incentive and opportunity for that spouse to become self-supporting. Reimbursement alimony is predicated on economic sacrifices made by one spouse during the marriage that directly enhance the future earning capacity of the other, and should not be subject to modification or termination until full compensation is achieved.Traditional alimony is payable for life or so long as a spouse is incapable of self-support.
What are the residency requirements to get divorced in Iowa? Iowa Code Section 598.5 provides that “[e]xcept where the respondent is a resident of this state and is served by personal service, the petitioner must have been a resident of the state for last year.”
Is there a waiting period for getting a divorce in Iowa? Yes, Iowa Code Section 598.19 provides “[n]o decree dissolving a marriage shall be granted in any proceeding before ninety days shall have elapsed from the day the original notice is served, or from the last day of publication of notice, or from the date that waiver or acceptance of original notice is filed or until after any court-ordered conciliation is completed, whichever period shall be longer. However, the court may in its discretion, on written motion supported by affidavit setting forth grounds of emergency or necessity and facts which satisfy the court that immediate action is warranted or required to protect the substantive rights or interests of any party or person who might be affected by the decree, hold a hearing and grant a decree dissolving the marriage prior to the expiration of the applicable period, provided that requirements of notice have been complied with. In such case the grounds of emergency or necessity and the facts with respect thereto shall be recited in the decree unless otherwise ordered by the court. The court may enter an order finding the respondent in default and waiving any court-ordered conciliation when the respondent has failed to file an appearance within the time set forth in the original notice.”
Resources:
Judicial Branch, Divorce Law Overview
Iowa Legal Aid, Summary of Divorce Law
