Iowa Dissolution Of Marriage Law
DEFINITION: “Dissolution of Marriage” is a termination of the marriage relationship and means the same as “divorce.” Iowa law also recognizes separate maintenance, which allows a spouse to obtain a legal separation but remain married. All provisions of the Iowa dissolution of marriage laws apply to separate maintenance except that the spouses remain married to each other and cannot marry someone else.
BASIS FOR DISSOLUTION: A dissolution of marriage will be granted when “there has been a breakdown in the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and thee remains no reasonable likelihood that the marriage can be preserved.” The spouse asking for the dissolution is the only one who need state that there has been a breakdown of the marriage relationship.
LEGAL PROCEDURES: A dissolution of marriage is started by filing a petition with the clerk of court. This petition is served on the other spouse either by the sheriff or by the other spouse signing a written acknowledgment of service. There is a ninety-day (90) waiting period before a dissolution decree can be entered. Parties often negotiate a settlement agreement, which is the basis for a decree of divorce. If the spouses cannot negotiate a settlement, the court will decide the terms of the divorce in a trial at which testimony and evidence is presented. You should ask you lawyer about the legal procedures.
WAITING PERIOD AND CONCILIATION: You must wait ninety days (90) before a final decree can be granted. This waiting period can be removed by the court in unusual circumstances. During this waiting period, either spouse can ask for marriage conciliation and settlement can be negotiated. You should talk to you lawyer about conciliation and settlement.
DISCOVERY: The facts of your case will determine the results of your dissolution. Discovery is both an informal and formal process of determining the facts of your case. You are the lawyer’s first source of discovery: help your lawyer organized your case facts. Your spouse and other persons can be ordered to answer written questions, give oral statements under oath, or produce records and documents. You should discuss with your lawyer how much formal discovery is needed and what formal discovery might cost in your case.
TEMPORARY ORDERS: While the dissolution action is going on, the court may, upon notice to the other spouse and after a hearing, provide for temporary custody and visitation rights and for the support of any minor children. A copy of current child support guidelines is available from out office. The court may also order temporary support for either of the spouses and provide for attorneys’ fees for either of the spouses.
FINAL DECREE: At the time of the final hearing the court will settle the parties’ property rights (including division of debts), spousal support rights and obligations, and child custody and visitation rights for non-custodial parents.
MODIFICATION: After the divorce, a court may change a decree only if a former spouse can show a substantial and material change of circumstances that the court did not contemplate at the time it entered the decree. Once custody of the children, visitation rights of the non-custodial parent, amount of support, and a property settlement are determined, these decree provisions will remain in effect unless a judge orders a change. Property settlements cannot be modified later.
In determining whether there is a substantial change in circumstances, the court can consider the following:
1) Changes in the employment, earning capacity, income, or resources of a party;
2) Receipt by a party of an inheritance, pension, or other gift;
3) Changes in the medical expenses of a party;
4) Changes in the number or needs of dependents of a party;
5) Changes in the physical or emotional health of a party;
6) Changes in residence of a party;
7) Remarriage of a party;
8) Possible support of a party by another person;
9) Changes in the physical, emotional, or educational needs of a child whose support is governed by the order;
10) Contempt by a party of existing orders of court;
11) Other factors the court determines to be relevant in an individual case.
CONTEMPT PROCEEDINGS: If a party willfully disobeys a court order, that party may be required to come before the court and be punished for contempt. A person found guilty of contempt may be committed to jail for a period not to exceed thirty (30) days. If the violation is of a support order, the court may also direct the payor to assign a portion of future salary or wages for both what is overdue and future support payments as they come due.
PROTECTIVE ORDERS: The court may order a spouse not to enter the marital household and protect the other spouse from harassment, intimidation, or injury if there is imminent risk of physical or emotional harm to the other spouse or the children. Talk to your lawyer if you have a concern for your protection. The threatened spouse must show the threat of real and immediate physical, mental, or emotional injury.
FACTORS THE COURT WILL CONSIDER IN DIVIDING PROPERTY: The law requires both spouses to disclose their financial status on a form provided by the court. The court makes the final division of the property between the spouses. In so doing, it will look at:
1) The length of the marriage;
2) The property brought into the marriage by each spouse;
3) The contribution of each spouse to the marriage giving approximate economic value to each contribution in homemaking and childcare services;
4) The age and physical and emotional health of each spouse;
5) The contribution of one spouse to the education, training, or increased earning power of the other;
6) The earning capacity of each spouse. This includes educational background, training, employment skills, work experience, length of absence from job market, custodial responsibilities for children. Also considered are the time and expense necessary to require sufficient education or training to enable the spouse to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage;
7) The desirability of awarding the family home or the right to live in the family home for a reasonable period to the spouse having custody of any children, or if there is joint legal custody, to the spouse having physical care of the children;
8) The amount and duration of any order granting support payments to either spouse and whether a property division should be made instead of other payments;
9) Other economic circumstances of each spouse, such as pension benefits (vested or unvested) and future interests;
10) The tax consequences to each party;
11) Any written agreement made by the husband and wife concerning property division;
12) The provisions of antenuptial agreement; and
13) Other factors the court may determine to be relevant in an individual case.
GIFTED OR INHERITED PROPERTY: Property inherited by or given to either spouse remains the property of that spouse unless it is inequitable to the other or to the children of marriage.
SPOUSAL SUPPORT: The court may grant spousal support payments to either spouse for a limited or indefinite length of time. The court will consider the following factors:
1) The length of the marriage;
2) The age and physical and emotional health of each spouse;
3) The distribution of property;
4) The educational level of the husband and the wife at the time of marriage and at the time the action started;
5) The earning capacity of the spouse seeking maintenance, including skills, work experience, length of absence from the job market, or responsibilities for children under either an award of custody or physical care. This includes also the time and expense necessary to acquire a sufficient education or training to enable the spouse to find appropriate employment;
6) The feasibility of the spouse 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;
7) The tax consequences to each spouse;
8) Any mutual agreement made by the husband and wife concerning financial or service contributions by one of them with the expectation of future reciprocation or compensation by the other;
9) The provisions of an antenuptial agreement; and
10) Other factors the court may determine to be relevant.
CHILD SUPPORT: In ordering child support, the court will determine the amount of support as specified by the guidelines. A copy of the guidelines is available from our office. Factors the court may also consider include:
1) Financial resources of the child;
2) The financial resources of both parents;
3) The standard of living the child would have enjoyed had there not been an annulment, dissolution, or separate maintenance;
4) The desirability that the spouse who would be primarily responsible for the physical care remain at home as a full-time parent;
5) The cost of day care for the spouse who would be primarily responsible for the physical care of the child if that spouse works outside the home, or the value of the child care services performed by the spouse if that spouse remains in the home;
6) The physical and emotional health needs of the child;
7) The child’s educational needs;
8) The tax consequences to each spouse; and
9) Other factors the court may determine to be relevant.
The spouse required to pay support must pay it to the clerk of the district court or to the appropriate state agency, which will record the payment and forward it to the recipient. If support payments become one month delinquent, the recipient may petition the court for a wage assignment against the spouse who owes the money. Another way is for the department of Human Services, Child Support Recovery Unit, to certify the delinquency to the court, and initiate a wave assignment procedure.
ATTORNEY FOR CHILD: The court may appoint an attorney to represent any minor children whose rights may be affected by the dissolution action.
CHILD CUSTODY AND VISITATION: Iowa law favors granting joint legal custody of the children to both parents when the marriage ends and provides that one parent may have primary responsibility for the physical care of a child. Where the court grants joint legal custody, even though only one parent has responsibility for physical care of the children, both parents have a right to participate in major decisions affecting the child’s welfare. This includes medical care, education, extracurricular activities, and religious instruction.
The court will normally grant visitation rights or alternate periods of care to the parent not having physical care of a child or children. The law favors continuing contact by both parents with the minor children.
The court makes the final custody decision. The standard that guides the court is the best interest of the child. There is a strong preference in the law for joint legal custody even though only one parent may have primary care responsibilities. There is no automatic gender preference. The court may place custody with a third person. The court will consider denial by one parent of a child’s opportunity for maximum continuing contact with the other parent, without just cause, as a significant factor in determining the proper custody arrangement.
Among the factors the court considers in deciding what type of custody arrangement is in the best interest of the child are:
1) Whether each parent would be a suitable custodian for the child;
2) 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;
3) Whether the parents can communicate with each other regarding the child’s needs;
4) Whether both parents have actively cared for the child before and since the separation;
5) Whether each parent can support the other parent’s relationship with the child;
6) 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;
7) Whether one or both the parents agree or are opposed to joint custody;
8) How closely the parents live to each other; and
9) Whether a court award of joint custody or unsupervised or unrestricted visitation will jeopardize the safety of the child, other children, or the other parent;
10) Whether a history of domestic abuse exists.
You should discuss child custody concerns with your lawyer. Many different arrangements can be made to accommodate the needs of your children.