Iowa Divorce and Family Law

Varnum v. Brien: Iowa "Same-Sex" Marriage Decision - Affirmed

The Iowa Supreme Court has issued a unanimous decision affirming the district court's ruling in Varnum v. Brien, the case that challenged the Iowa statutory definition of marriage.  The Court's lengthy opinion is available here (PDF; 69 pages).  Related appellate documents, briefs, and the original district court ruling are available on the Court's website.  It is anticipated that the decision will be effective on April 27, 2009.

Disinterment Rights

While not a "family law" case in the traditional sense, today's Iowa Supreme Court decision of Stark v. Stark does implicate spousal rights.  In the case, the surviving spouse of the deceased husband sought to disinter and rebury the husband's body apparently because he was buried "near plots owned by Audrey, his first wife, and the Stark children."  The surviving spouse applied for and received a permit from the Iowa Department of Public Health to do so.  The children then obtained an injunction in district court permanently enjoining the surviving spouse from disinterring the remains. 

The Supreme Court's decision follows traditional statutory interpretation principles and does not open new legal ground in any substantive respect beyond the facts of the case.  But the facts of the case and the relative (no pun intended) rights of the various parties involved are something to be considered, as this is probably an emotional issue (i.e., where to or who decides where to bury a parent/former spouse) that arises more frequently than one would otherwise suspect.

Divorce Rates Lowest Since 1970

The Associated Press reports that "Despite the common notion that America remains plagued by a divorce epidemic, the national per capita divorce rate has declined steadily since its peak in 1981 and is not at its lowest level since 1970. The national divorce rate has dropped from 5.3 divorces per 1,000 people at its peak in 1981 to 3.6 per 1,000 people, the lowest rate since 1970.

Yet Americans aren't necessarily making better choices about their long-term relationships. Even those who study marriage and work to make it more successful can't decide whether the trend is grounds for celebration or cynicism. Some experts say relationships are as unstable as ever -- and divorces are down primarily because more couples live together without marrying. Other researchers have documented what they call ''the divorce divide,'' contending that divorce rates are indeed falling substantively among college-educated couples but not among less-affluent, less-educated couples.

What's fueling that decline? The number of couples who live together without marrying has increased tenfold since 1960; the marriage rate has dropped by nearly 30 percent in past 25 years; and Americans are waiting about five years longer to marry than they did in 1970. One of the researchers whose studies detected the ''divorce divide'' is University of Maryland sociologist Steve Martin. Comparing marriages from early 1970s to those of the early '90s, Martin found that the rate of breakups within 10 years of marriage dropped by one-third among college-educated women while remaining stable among less-educated women. ''Overall, marriages will become more stable only if the lower two-thirds of the population starts behaving like the top third,'' Martin said. ''There's a lot of debate -- is that possible? Can marriage training or other programs give all couples the sort of relationship skills that people imagine college graduates have?''

Stephanie Coontz, who teaches history and family studies at Evergreen State College in Olympia, Wash., says divorces are dropping in the college-educated sector because many spouses ''are learning how to negotiate marriages based on less rigid gender roles than in the past.'' ''College-educated wives are more likely to work than less-educated wives, and a recent study found that unlike the past, a wife's work now tends to stabilize marriage,'' she said.

The per capita divorce rate is different from another method of calculation -- the percentage of marriages that will eventually end in divorce or separation. Many experts discount the popular notion that one of two U.S. marriages end in divorce, and suggest the breakup rate, which is hard to calculate, has stabilized in recent years at between 40 percent and 45 percent.

Source: Associated Press, May 10, 2007.

Alons v. Iowa District Court - Lack of Standing to Challenge Dissolution of Civil Union

As widely expected, the Iowa Supreme Court rejected a third-party challenge to a district court decree dissolving a Vermont civil union. The case, Alons v. Iowa District Court was brought by several persons in various representative and individual capacities and one religious organization. Each claimed that they had standing to challenge the underlying decree, despite the fact that none of the challenging parties was a litigant in the underlying dissolution action.

After exhaustively analyzing the legal requirements for standing and each particular appellant's claim that he, she, or it somehow did have standing, the Court rejected every claim without reaching an discussion of the substantive merits raised by each appellant. Here's the money quote from the decision:

Finally, we agree with the amicus’s observation that '[m]any people have strong opinions about marriage, as they do about divorce, child custody, zoning, and many other issues, but if everyone were allowed to petition for certiorari simply because of ideological objections or strongly held philosophical beliefs that an order should not have been entered, then there would be no limits to the petitions brought. Iowa law has never permitted such unwarranted interference in other peoples’ cases. Simply having an opinion does not suffice for standing.'

Decision expected in Civil Union Termination Case (Alons v. District Court)

The Iowa Supreme Court has the following case on its expected list of decisions to be issued June 16th:

Alons v. Iowa Dist. Ct. General case description: The plaintiffs petitioned for certiorari review to challenge the district court’s termination of a civil union. The petition was granted and the plaintiffs argue they have standing to bring this matter by virtue of their status as members of the public, as legislators (both state and federal), as married persons, as taxpayers, as a minister, and as a church. They also contend this court may review this matter by invoking its supervisory and administrative jurisdiction to exercise control over all inferior judicial tribunals. Iowa Const. art. V, § 4. The plaintiffs argue the district court exceeded its jurisdiction in dissolving the civil union and its decree should be set aside.

Not mentioned in the court's description is that the Court sua sponte ordered the issue of the plaintiffs' standing to bring the challenge to the district court's action. The Court's docket lists "dissolution of civil union, standing to sue or raise issue, jurisdiction, and subject matter jurisdiction" as the general legal issues presented. The Court's decisions are normally posted at http://www.judicial.state.ia.us on Friday morning at approximately 9:00 a.m. CST.

The district court granted a decree terminating a female same-sex couple's civil union that was originally obtained in Vermont. The parties resided in Iowa at the time of the court's order terminating their civil union. Iowa does not have a civil union statute. The Court apparently granted the termination under its general equitable powers. Here are some prior press quotes about the case:

An Iowa county judge is under fire after granting a divorce between two lesbians who were joined in a civil union in Vermont. In December, the Associated Press reported that Judge Jeffrey Neary of Woodbury County approved the split for Kimberly Brown, 31, and Jennifer S. Perez, 26, last month, claiming he didn't realize the two were a same-sex couple. But when he figured out what happened, he decided not to reverse the divorce decision. "I think we will see (civil union divorces) periodically, and we will have to decide how we are going to handle these," he told the Sioux City Journal.

Even though Iowa is one of 37 states to ban same-sex marriage, Neary feels his ruling was necessary. "If I'm presented with a dispute that has to be resolved in my courtroom, or is before me that affects the rights of Iowans, I feel an obligation to solve that problem," Neary told the AP. "I don't believe I'm recognizing same-sex marriage." Neary claimed the divorce was legal under the Constitution's "Full Faith and Credit Clause," which requires states to recognize the laws of other states.

But Iowa state Sen. Neal Schuerer, a Republican, disagreed, calling Neary's actions "judicial activism at its worst. The judge was wrong. He should have backed away and sent them back to Vermont," Schuerer told the AP.

As could be expected, a number of parties have filed Amicus Curiae briefs with the court, including the Iowa Civil Liberties Unions, the American Civil Liberties Union, and the Lambda Legal Defense Fund. The Iowa Attorney General's office has also appeared on behalf of the District Court. The Appellant, Dwayne Alons, is an Iowa legislator from Iowa's 4th District. His website describes himself as "mature, conservative, and pro-family."

Children in the Middle - Online Course

The "Children in the Middle" course that is required for all parents in any case where children are involved (divorce, paternity, visitation, custody modification) is now available online at the Putting Kids First website.

No Right to Re-Enter Marital Home

The Iowa Supreme Court has affirmed a burglary conviction of a spouse who attempted to enter a residnece where he had previously lived. In re Marriage of Hagedorn, No. 03-0232, filed May 12, 2004. In what appears to be a case of first impression in Iowa, the Court rejected the defendant's claims that "he cannot be convicted of burglary for entering his own house."

Logical as that would seem, the Court's ruling is clear, as well as anticipatory of its fallout:

"Looking beyond this case, we can certainly envision circumstances where the occupancy rights of the estranged couple with respect to the marital home would be murkier than they are here.....More specifically, protecting the possessory rights of a person occupying the marital home after his or her spouse has moved out promotes the public policy underlying our decisions in Zeien and Peck - the prevention of domestic violence."

The moral of the story: don't move out; if you do, ring the doorbell before going back in.