Divorce & Family Law

Every divorce case is different, so it’s often misleading to compare divorce cases with anyone. Even so, there is a typical procedure that most divorce cases follow:

1. Filing of Original Notice and Petition for Dissolution of Marriage (in Iowa) or Summons and Complaint (in Nebraska and South Dakota).border-bo
2. After an Answer to the Petition / Complaint is on file (generally within 20-30 days), a hearing date for temporary matters can be set if necessary. These hearings are time-limited (generally no more than one hour in total for Iowa). The issues of temporary child custody, temporary child support, temporary alimony, and temporary attorney fees are presented by way of affidavits (a signed and notarized written statement) and may also include testimony from witnesses.
3. A final trial date can also be scheduled after an Answer to the Petition / Complaint is on file. The final trial date depends upon the Court’s and attorneys’ schedules, but generally Courts give preference to family law disputes and can schedule a final trial within six to eight months of the original Petition / Complaint.
4. Settlement discussions can take effect immediately. After a trial date is set, the parties have the right to engage in discovery, which can be in the form of written requests for production of documents, signed answers regarding various questions, or an in-person deposition (e.g. interview) of a party or witness.
5. If the parties reach a settlement agreement, it can be presented to the Court for approval. Once the Court approves the settlement agreement, the Court enters a Decree of Dissolution formally dissolving the marriage. If the parties cannot agree on all of the issues, a trial is necessary, and a Judge will make a ruling based on the evidence presented.

Mediation can be a very powerful tool in divorce cases. Mediation is referred to as an alternative dispute resolution (ADR) method because it is designed to resolve disputes without trying the case before a Court. In divorce mediation, the parties meet with a neutral third party (often an attorney with extensive experience with divorce cases). Depending upon the parties’ agreement, the parties’ attorneys may or may not accompany the parties at the mediation. The mediator often meets each party separately, and then may or may not get the parties in the same room to try and resolve some or all of the case issues. Mediation allows the parties to clear the air in a setting much less formal than Court, while at the same time being kept on track by an experienced mediator. Mediation can also save the parties a great deal of fees, especially if successfully completed early in the case.

The mediator cannot advise the parties, but he or she can offer creative solutions or suggestions. The key to effective mediation is that both parties need to come into it with an open mind and the desire to resolve the case. Most Courts require parties to mediate divorce cases before the Court will try the case. If the parties resolve the issues, a settlement agreement can be submitted to the Court and the case finalized without a trial.

The State of South Dakota does not recognize a separate action for legal separations. Iowa and Nebraska, on the other hand, do have a formal process for couples who don’t want to divorce, but rather, legally separate. The purpose of a legal separation may stem from religious beliefs (e.g. where the parties’ religion does not support divorce); uncertainty (e.g. couples who are unsure whether they want to formerly dissolve their marriage may use a legal separation as a starting point); financial reasons, or other personal preferences or matters.

If a court orders a legal separation in Iowa or Nebraska, it is the functional equivalent of divorce, except if the marriage itself is not legally dissolved. A decree of legal separation may address matters like division of assets and debts, child custody and visitation, child support, and potentially spousal support or maintenance.

Nebraska allows for legal separation to be Court-ordered without a hearing when: (a) both parties waive the requirement of the hearing and the court has sufficient basis to make a finding that it has subject matter jurisdiction over the legal separation proceeding and personal jurisdiction over both parties; and (b) both parties have certified in writing that they shall thereafter live separate and apart, both parties have certified that they have made every reasonable effort to effect reconciliation, all documents required by the court and by statute have been filed, and the parties have entered into a written agreement, signed by both parties under oath, resolving all issues presented by the pleadings in their legal separation proceeding. Neb. Rev. Stat. § 42-361.01.

A prenuptial agreement requires full disclosure of one’s financial situation, and therefore leads to an important discussion of how the parties intend to handle their finances once married. If properly approached, a prenuptial agreement can help support and withstand a marriage, as many marriages fail due to lack of communication or a common understanding of financial management. In the event of a divorce, prenuptial agreements can also help protect your property, preserve your children’s inheritance, and reassure your business partners.

Iowa law allows parties to a prenuptial agreement to contract to: (1) rights and obligations of property; (2) right to manage and control property (e.g. sell, buy, use, transfer, exchange, abandon, lease, consume, expend, assign, mortgage, encumber, dispose of, etc.); (3) disposition of property upon separation, divorce, death, or occurrence or nonoccurrence of an event; (4) state planning; (5) ownership rights in and disposition of death benefit from a life insurance policy; (6) choice of law governing the construction of the agreement; and (7) any other matter which is not a crime or a violation of public policy. An Iowa prenuptial agreement cannot include a contract provision regarding child support.

South Dakota and Nebraska also recognize premarital agreements (also known as antenuptial agreements). Certain requirements must be satisfied for the prenuptial agreement to be enforceable (for example only, both parties exchanging an accurate financial statement). Therefore, it’s important to seek experienced legal counsel before entering into a premarital agreement.

If you are married and getting a divorce, changing your last name to your maiden name is generally as simple as making the request in the divorce proceeding. Absent a divorce case, however, a person (or a child’s parent or guardian) may also seek to change his/her first, middle, and last name for other reasons. Every state has its own laws on this process. The general requirements in Iowa are as follows:

1. File a Verified Petition in the district court of the county where the applicant resides and state: (a) the name at the time the petition is filed of the person whose name is to be changed. If the name change is for a minor child, the petition must state the name of the petitioner and the petitioner’s relationship to the minor child; (b) the person’s weight, color of hair, color of eyes, race, sex, and date and place of birth; (c) address and any prior residences for the past five years; (d) reason for change of name; (e) all real property in Iowa owned by the applicant; and (f) the name the petitioner proposes to take.
2. A certified copy of the birth certificate must be attached to the petition.
3. If the petitioner is married, the petitioner must give legal notice of the Petition to the spouse. If the petition involves a minor child who is at least 14 years old, the child’s written consent to the change of name is required. If the petition involves a minor child under age 14, both parents must file their written consent to the name change. If a parent does not consent to the name change, a Court hearing is set and the other parent’s consent may only be waived if the Court finds that: (a) the parent has abandoned the child; (b) the parent has, without good cause, failed to comply with a Court order that he/she support of financially assist the child; or (c) the parent does not object to the name change after having been given proper notice.
4. When the court grants a decree of change of name, the court gives the petitioner a certified copy of the decree and mails an abstract of the decree requiring a name change to be reflected on the birth certificate. The court also sends a certified copy of the decree to the recorder’s office in every county in Iowa where the petitioner owns real estate.

Iowa, Nebraska, and South Dakota allow people to modify previous Court Orders regarding child custody, visitation, child support, and other family law matters. However, certain criteria must be met to modify. In Iowa, the following principles apply to all child custody and child support modification actions: (1) there must be a substantial and material change in the circumstances occurring after the entry of the decree; (2) not every change in circumstances is sufficient; (3) it must appear that continued enforcement of the original decree would, as a result of the changed conditions, result in injustice; (4) the change in circumstances must be permanent or continuous (not temporary); and (5) the change in circumstances must not have been within the contemplation of the trial court when the original decree was entered.

Iowa, Nebraska, and South Dakota may award a divorced person alimony (also known as spousal support) under certain circumstances. In determining the necessity, form, and amount of alimony warranted in each case, Iowa Courts consider the following factors: (1) length of marriage; (2) age and emotional and physical health of the parties; (3) property distribution; (4) educational level of the parties at the time of marriage and when the dissolution action is commenced; (5) earning capacity of the party seeking alimony; and (6) feasibility of the alimony-seeking party becoming self-supporting with a reasonably comparable standard of living to that enjoyed during the marriage.

Alimony can be temporary or permanent but is generally designed to allow a divorced spouse to become self-sufficient. Alimony and child support may be awarded to the same person. Generally, if a person waives alimony in the initial divorce settlement, the person cannot request alimony after the divorce. However, if alimony is awarded in the initial Divorce Decree, it, like child support, can be modified if there is a substantial change in circumstances later.

Unlike child support, which is computed using State guidelines and formulas, there is much more discretion for the Court in setting the amount and duration of alimony. For this reason alone, it’s imperative to have experienced legal counsel who understand how a Court might rule if a case goes to trial.

Iowa, Nebraska, and South Dakota calculate child support by following State Supreme Court Guidelines. The Guidelines recognize the importance of both parents financially providing for their children, and as such, both parents’ incomes are used in calculating the child support amount. As a general rule, income does not include public assistance or step-parent income. After offsetting each parent’s gross income with applicable deductions, the Guidelines use the parents’ net monthly incomes to calculate the child support owed, based on the number of children and the custody arrangement. For example, if the parents have shared custody (e.g. 50/50 time), the child support is much lower than it would be if one of the parents had primary care. This is because shared (50/50) care requires the parents to provide homes, food and clothing for the children, share the children’s medical costs, extracurricular expenses, and so forth. Similarly, if one parent is deemed the “custodial” parent, but the other parent has “extraordinary visitation” (as defined by the State Guidelines), the non-custodial parent’s child support obligation is reduced in part because of the extra time – and hence financial expenses – the non-custodial parent will incur. There is a rebuttable presumption that the Guidelines amount is correct; but, there can be legitimate reasons for swaying from the Guidelines (e.g. an unequal property settlement in a divorce). Overall, the Guidelines provide a starting point for calculating child support.

In Iowa paternity cases, the Court may on its own motion, and must on the motion of any party, require the child, mother, and alleged father to submit to blood or genetic testing. The putative father is not required to prepay for the tests if he is indigent, especially when the State initiates the action. If the alleged father fails to appear for genetic testing pursuant to a Court Order, the Court shall find him to be in default and enter judgment against him for paternity and support. If the test results show that the alleged father’s paternity is 95% or higher, there is a rebuttable presumption that the alleged father is the biological father. A party challenging the test results must file a notice of the challenge with the Court within twenty days. If the test results are disputed, the Court will order an additional test be made by the same laboratory or an independent laboratory at the expense of the party requesting additional testing.

Iowa Code 600B.41A gives the mother, the established father, the child, and the child’s legal representative the right to file a petition to overcome paternity. If paternity is overcome, the established father is relieved of any future and unpaid support obligations from the date of filing of the Order determining that he is not the father.

By law, the best interest of a child requires the biological parents “affirmatively assume the duties encompassed by the role of being a parent.” Under Chapter 600A of the Iowa Code, the Court is required to consider things like financial support, demonstration of a continued interest in the child, a genuine effort to communicate with the child, and establishing and maintaining a place of importance in the child’s life. Individuals and families are unique, and a parent may encounter certain obstacles which limit his/her ability to fulfill some or all of these areas. Those obstacles are generally understood and do not mean the parent is not reasonably attempting to fulfill his or her parental role.

Because it is assumed it is in a child’s best interest to legally have two parents (assuming both are living), the Juvenile Court requires the petitioner (e.g. the State, the other parent, the legal guardian, etc.) to prove their case by clear and convincing evidence.

The Iowa Code (like Nebraska and South Dakota) sets forth the grounds for terminating parental rights, some of which include: (1) the parent signed a release of custody which has not been revoked or doesn’t object after having been served with the petition to terminate parental rights; (2) abandonment of the child; (3) a parent was ordered to support the child financially and has failed to do so without cause; (4) the parent has been found to have a substance-related disorder and has committed a second or subsequent domestic abuse assault; (5) the parent is imprisoned for a crime against a child, the child’s sibling, or another child in the household, or the parent has been imprisoned and it’s not likely the parent will be released from prison for at least five years; (6) the parent has been convicted of a felony sex offense against a minor, is serving a minimum sentence of confinement for at least five years, and the parent is divorced from or was never married to the minor’s other parent; or (7) the Court finds by clear and convincing evidence the child was conceived as a result of sexual abuse.

If the petitioner proves by clear and convincing evidence that one or more of the grounds for termination exist, the petitioner must also prove terminating the parent’s rights is in the child’s best interest.