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April 21, 2005
Legislative Update: SF330 - Parenting Plans
Both the Senate and the Iowa House have passed, unanimously, SF330, which, if signed by the governor, would bring "parenting plans" to Iowa family law cases. The full text of the bill is available here. The Fiscal Note prepared by the Iowa Legislative Services Agency is also worth reading as it provides some very interesting, and many would say suspect, statistics about the judicial workload caused by family law cases in the state.
Most practicing family law attorneys would probably be highly doubtful of the assumptions found in the Fiscal Note, particularly the claim that "the average time the Judicial Branch spends on a family law case is 103 minutes or $240 per case." Think about this for a minute, no pun intended. If there were 12,181 family law cases in calendar year 2004, as stated in the fiscal note, that means that the Iowa Judicial Branch spent 1,254,643 minutes last year handling family law cases. This equates to 20,910 hours overall, or an average of 211 hours per year in each of Iowa's 99 counties. Assuming a 6 hour day (admittedly on the long side given that most courts have 9:30-12:00 and 1:30-4:30 sessions), this works out to only 35 days per year of court time per county spent on family law cases. Assuming approximately 250 business days per year, the family law docket would, according to the Fiscal Note, only consume about 14% of the court's docket time.
Observations:
1. Call any district court administrator in the state and ask him/her if only 14% of their court's docket time is devoted to family law. Be prepared to wait for the laughing to subside. 2. Consider Polk County, where two (2) judges are assigned full-time to the family law docket each year. This alone equates to 3,000 hours, or more than 14% of the state-wide total. 3. At the opposite end of the population spectrum, primarily rural counties generally spend half or more of the time during their once-a-week court service days handling family law matters. 4. If the case is contested, the Fiscal Note still only assumes the court will give only "an additional 15 minutes of court time" to make a decision about the contested issue(s) related to the parenting plan. This assumption should cause an outcry from the judicial branch, particularly district court judges who take so seriously the incredible responsibility they alone bear in making decisions about children's lives.
Posted on April 21, 2005 in Legislation | Permalink
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April 13, 2005
Military Deployments and Family Care Plans
The Des Moines Register recently reported that Iowa, like many other states, has a record number of residents deployed on active military duty. This is having an enormous impact on families and the Iowa Court of Appeals recently addressed in great detail the legal significance of having a "Family Care Plan" in place to provide for the care of a soldier's family when the service member is deployed on active duty. The Family Care Plan and the protections provided by the Servicemembers Civil Relief Act are described in the case of In re Marriage of Grantham, particularly the right to a stay of proceedings while deployed. The Court noted that the United State Supreme Court's 1943 ruling that the Act "is always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation" "rings as true today as it did then" during the height of World War II. The Court emphasized that "practically speaking, the Family Care Plan steps in for a soldier; it governs who will exercise the soldier's rights under the decree while the soldier is on active duty. Thus, Family Care Plans take no rights from the other party to the decree; they merely exercise the soldier's rights while on duty."
More generally, the Grantham decision is also significant as it is the first Iowa appellate decision that expressly holds "temporary custody orders are not statutorily authorized on petitions for [custody] modification."
Posted on April 13, 2005 in Custody, Federal Laws-Cases | Permalink
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Still No Word on What Amended Iowa Code 598.41(5)(a) Means
We're getting closer, but still no cigar as none of today's decisions from the Iowa Court of Appeals gives us any better indication as to what the July 1, 2004 amendments to Iowa Code 598.41(5)(a) mean to Iowa appellate courts. The Little decision of today contains an intriguing footnote that seems to imply the Court has some question "whether amended section 598.41(5)(a) applies to modification proceedings."
Time will no doubt answer this question, as well as whether the district court was correct in finding that the amendments create a "preference" for joint physical care, and, if so, just exactly what practical impact the amendments will have at the trial court level - if any.
Posted on April 13, 2005 in Legislation | Permalink
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What are my responsibilities as a primary physical care parent?
This is a question that is frequently asked by many clients. The Iowa Court of Appeals decision in Little provides a clear answer: The parent having physical care "has a responsibility of communicating to the other parent the need to make decisions and making the necessary information available." See also, In re Marriage of Fortelka, 425 N.W.2d 671, 673 (Iowa Ct. App. 1988). This information should be provided by the custodial parent to the non-custodial parent in order to allow the non-custodial parent to exercise his/her right of "equal participation in decisions affecting the child's legal status, medical care, education, extra-curricular activities, and religious instruction." Iowa Code 598.41(5)(b). Both parents have the responsibility to discuss problems concerning the children in these areas with the other parent.
Posted on April 13, 2005 in Custody, FAQ | Permalink
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Parental Discord - Again
Today's decision in Simkins from the Iowa Court of Appeals is yet another example of the consequences of post-dissolution parental discord on child custody. Less than two years after entry of a shared custody decree, both parties apparently admitted that shared care was "unworkable" and each requested primary physical care of the children. The Court of Appeals once again emphasized "that parental discord having a disruptive effect on the children warrants modification of a decree to designate a primary physical caregiver if it appears that the children, by having a primary physical caregiver, will have superior care." The Court also found that the requisite substantial change "has been shown in this case due to the demonstrated failure of the shared physical care arrangement."
Of particular note is that Court reviewed the case "as an initial custody determination" because both parents were found to be suitable as primary caregivers at the time the original decree was entered. The Court reached back into the marriage to make a finding that "during the parties' marriage, [the mother] was the primary care provider for the children" as supportive of her request to be the primary caregiver in the modification.
Posted on April 13, 2005 in Custody | Permalink
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April 06, 2005
When is spousal support (alimony) awarded?
This decision from the Iowa Supreme Court provides a good summary of the three types of alimony in Iowa and the factors considered by the court when awarding alimony:
&;Alimony ‘is a stipend to a spouse in lieu of the other spouse’s legal obligation for support.’&; In re Marriage of Probasco, 676 N.W.2d 179, 184 (Iowa 2004) (citation omitted). Such an award is not an absolute right. And whether it is awarded depends on the circumstances of the particular case. In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa 1996). When deciding to award alimony, the district court must consider the factors in Iowa Code section 598.21(3). In re Marriage of Ask, 551 N.W.2d 643, 645 (Iowa 1996). ...
We recognize three different types of alimony as an appropriate award of spousal support: traditional, rehabilitative, and reimbursement. Probasco, 676 N.W.2d at 184-85. Traditional alimony is &;payable for life or so long as a spouse is incapable of self-support . . . .&; In re Marriage of Francis, 442 N.W.2d 59, 64 (Iowa 1989). 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. Because self-sufficiency is the goal of rehabilitative alimony, the duration of such an award may be limited or extended depending on the realistic needs of the economically dependent spouse, tempered by the goal of facilitating the economic independence of the ex-spouses. Id. at 63-64 (citations omitted).
Reimbursement alimony &;is predicated upon economic sacrifices made by one spouse during the marriage that directly enhance the future earning capacity of the other.&; Id. at 64. And &;[s]imilar to a property award, but based on future earning capacity rather than a division of tangible assets, it should be fixed at the time of the decree.&; Id.
The Iowa Code section 598.21(3) factors are: 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 subsection 1. 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. j. Other factors the court may determine to be relevant in an individual case.
Posted on April 06, 2005 in Alimony, FAQ | Permalink
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Main
| May 2005 »
April 21, 2005
Legislative Update: SF330 - Parenting Plans
Both the Senate and the Iowa House have passed, unanimously, SF330, which, if signed by the governor, would bring "parenting plans" to Iowa family law cases. The full text of the bill is available here. The Fiscal Note prepared by the Iowa Legislative Services Agency is also worth reading as it provides some very interesting, and many would say suspect, statistics about the judicial workload caused by family law cases in the state.
Most practicing family law attorneys would probably be highly doubtful of the assumptions found in the Fiscal Note, particularly the claim that "the average time the Judicial Branch spends on a family law case is 103 minutes or $240 per case." Think about this for a minute, no pun intended. If there were 12,181 family law cases in calendar year 2004, as stated in the fiscal note, that means that the Iowa Judicial Branch spent 1,254,643 minutes last year handling family law cases. This equates to 20,910 hours overall, or an average of 211 hours per year in each of Iowa's 99 counties. Assuming a 6 hour day (admittedly on the long side given that most courts have 9:30-12:00 and 1:30-4:30 sessions), this works out to only 35 days per year of court time per county spent on family law cases. Assuming approximately 250 business days per year, the family law docket would, according to the Fiscal Note, only consume about 14% of the court's docket time.
Observations:
1. Call any district court administrator in the state and ask him/her if only 14% of their court's docket time is devoted to family law. Be prepared to wait for the laughing to subside. 2. Consider Polk County, where two (2) judges are assigned full-time to the family law docket each year. This alone equates to 3,000 hours, or more than 14% of the state-wide total. 3. At the opposite end of the population spectrum, primarily rural counties generally spend half or more of the time during their once-a-week court service days handling family law matters. 4. If the case is contested, the Fiscal Note still only assumes the court will give only "an additional 15 minutes of court time" to make a decision about the contested issue(s) related to the parenting plan. This assumption should cause an outcry from the judicial branch, particularly district court judges who take so seriously the incredible responsibility they alone bear in making decisions about children's lives.
Posted on April 21, 2005 in Legislation | Permalink
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April 13, 2005
Military Deployments and Family Care Plans
The Des Moines Register recently reported that Iowa, like many other states, has a record number of residents deployed on active military duty. This is having an enormous impact on families and the Iowa Court of Appeals recently addressed in great detail the legal significance of having a "Family Care Plan" in place to provide for the care of a soldier's family when the service member is deployed on active duty. The Family Care Plan and the protections provided by the Servicemembers Civil Relief Act are described in the case of In re Marriage of Grantham, particularly the right to a stay of proceedings while deployed. The Court noted that the United State Supreme Court's 1943 ruling that the Act "is always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation" "rings as true today as it did then" during the height of World War II. The Court emphasized that "practically speaking, the Family Care Plan steps in for a soldier; it governs who will exercise the soldier's rights under the decree while the soldier is on active duty. Thus, Family Care Plans take no rights from the other party to the decree; they merely exercise the soldier's rights while on duty."
More generally, the Grantham decision is also significant as it is the first Iowa appellate decision that expressly holds "temporary custody orders are not statutorily authorized on petitions for [custody] modification."
Posted on April 13, 2005 in Custody, Federal Laws-Cases | Permalink
|
TrackBack (0)
Still No Word on What Amended Iowa Code 598.41(5)(a) Means
We're getting closer, but still no cigar as none of today's decisions from the Iowa Court of Appeals gives us any better indication as to what the July 1, 2004 amendments to Iowa Code 598.41(5)(a) mean to Iowa appellate courts. The Little decision of today contains an intriguing footnote that seems to imply the Court has some question "whether amended section 598.41(5)(a) applies to modification proceedings."
Time will no doubt answer this question, as well as whether the district court was correct in finding that the amendments create a "preference" for joint physical care, and, if so, just exactly what practical impact the amendments will have at the trial court level - if any.
Posted on April 13, 2005 in Legislation | Permalink
|
TrackBack (0)
What are my responsibilities as a primary physical care parent?
This is a question that is frequently asked by many clients. The Iowa Court of Appeals decision in Little provides a clear answer: The parent having physical care "has a responsibility of communicating to the other parent the need to make decisions and making the necessary information available." See also, In re Marriage of Fortelka, 425 N.W.2d 671, 673 (Iowa Ct. App. 1988). This information should be provided by the custodial parent to the non-custodial parent in order to allow the non-custodial parent to exercise his/her right of "equal participation in decisions affecting the child's legal status, medical care, education, extra-curricular activities, and religious instruction." Iowa Code 598.41(5)(b). Both parents have the responsibility to discuss problems concerning the children in these areas with the other parent.
Posted on April 13, 2005 in Custody, FAQ | Permalink
|
TrackBack (0)
Parental Discord - Again
Today's decision in Simkins from the Iowa Court of Appeals is yet another example of the consequences of post-dissolution parental discord on child custody. Less than two years after entry of a shared custody decree, both parties apparently admitted that shared care was "unworkable" and each requested primary physical care of the children. The Court of Appeals once again emphasized "that parental discord having a disruptive effect on the children warrants modification of a decree to designate a primary physical caregiver if it appears that the children, by having a primary physical caregiver, will have superior care." The Court also found that the requisite substantial change "has been shown in this case due to the demonstrated failure of the shared physical care arrangement."
Of particular note is that Court reviewed the case "as an initial custody determination" because both parents were found to be suitable as primary caregivers at the time the original decree was entered. The Court reached back into the marriage to make a finding that "during the parties' marriage, [the mother] was the primary care provider for the children" as supportive of her request to be the primary caregiver in the modification.
Posted on April 13, 2005 in Custody | Permalink
|
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April 06, 2005
When is spousal support (alimony) awarded?
This decision from the Iowa Supreme Court provides a good summary of the three types of alimony in Iowa and the factors considered by the court when awarding alimony:
&;Alimony ‘is a stipend to a spouse in lieu of the other spouse’s legal obligation for support.’&; In re Marriage of Probasco, 676 N.W.2d 179, 184 (Iowa 2004) (citation omitted). Such an award is not an absolute right. And whether it is awarded depends on the circumstances of the particular case. In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa 1996). When deciding to award alimony, the district court must consider the factors in Iowa Code section 598.21(3). In re Marriage of Ask, 551 N.W.2d 643, 645 (Iowa 1996). ...
We recognize three different types of alimony as an appropriate award of spousal support: traditional, rehabilitative, and reimbursement. Probasco, 676 N.W.2d at 184-85. Traditional alimony is &;payable for life or so long as a spouse is incapable of self-support . . . .&; In re Marriage of Francis, 442 N.W.2d 59, 64 (Iowa 1989). 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. Because self-sufficiency is the goal of rehabilitative alimony, the duration of such an award may be limited or extended depending on the realistic needs of the economically dependent spouse, tempered by the goal of facilitating the economic independence of the ex-spouses. Id. at 63-64 (citations omitted).
Reimbursement alimony &;is predicated upon economic sacrifices made by one spouse during the marriage that directly enhance the future earning capacity of the other.&; Id. at 64. And &;[s]imilar to a property award, but based on future earning capacity rather than a division of tangible assets, it should be fixed at the time of the decree.&; Id.
The Iowa Code section 598.21(3) factors are: 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 subsection 1. 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. j. Other factors the court may determine to be relevant in an individual case.
Posted on April 06, 2005 in Alimony, FAQ | Permalink
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