Iowa Divorce and Family Law

What If We Can't Agree on a Name for Our Child?

Clients often ask which parent has the right to name their child, the mother or the father? The answer, at least under Iowa law, is neither. The Iowa Court of Appeals, in Montgomery v. Wells, 708 N.W.2d 704 (Iowa Ct. App. 2005), held that traditional notions of using the father's surname are outmoded and that, likewise, the mother of a child born out of wedlock does not have "veto power" over the child's name. Instead, the court requires a consideration of the child's best interests, including the following factors:

1. "Convenience for the child to have the same last name as or a different name from the custodial parent."
2. "Identification of the child as part of a family unit."
3. "Assurances by the mother that she would not change her name if she married or remarried if the child maintains the mother's surname."
4. "Avoiding embarrassment, inconvenience, or confusion for the custodial parent or the child."
5. "The length of time the surname has been used."
6. "Parental misconduct, such as support or non-support or maintaining or failing to maintain contact with the child."
7. "The degree of community respect associated with the present or changed name."
8. "A positive or adverse effect a name change may have on the bond between the child and either parent or the parents' families."
9. "Any delay in requesting or objecting to name name."
10. "The preference of the child if the child is of sufficient maturity to express a meaningful preference."
11. "Motivation by the parent seeking the change as an attempt to alienate the child from the other parent."
12. "And any other factor relevant to the child's best interest."

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.

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.

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.

How is custody determined?

The overriding factor for determining child custody is the children's "best interests." Admittedly, this is a nebulous and vague standard that is probably incapable of precise definition from either a scientific or legal viewpoint. The court's objective "is to place the children in the environment most likely to bring them to healthy physical, mental, and social maturity." Specific statutory factors are stated in Iowa Code 598.41(3) (2003). The seminal case of In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974) expands upon the stautory factors. These factors are applied to the particular facts of any given case to determine which parent most closely meets the children's "best interests."

Children in the Middle: Do's and Don'ts

In divorce or any other legal proceeding concerning child custody, Iowa courts require both parent to attend the "Children in the Middle" program to become aware of how children are affected by custody disputes and divorce. Here are a few "Do's and Don'ts" on how to minimize the impact of divorce on children:

1. Put your children's welfare first. Never use a child as a weapon against your spouse.
2. Be sure your children have ample time with the other parent. They need it.
3. Don't introduce your children to your new romantic interest until the children have adjusted to the divorce, separation from the other parent, and your new relationship is stable.
4. Don't bring your children to court or to meetings with your attorney.
5. Keep to the schedule. Give the other parent and the children as much notice as you can when you will not be able to keep to the schedule. Be considerate.
6. Be flexible. You may both need to adjust the schedule from time to time.
7. Giving of yourself is more important than giving material things to the children.
8. Do not use your spouse as spies to report on the activities of the other parent.
9. Do not use the children to deliver messages or act as couriers to the other parent.
10. Avoid arguments or confrontations while dropping off or picking up the children or whenever children are present.
11. Don't listen in on your children's phone calls with the other parent.
12. Maintain your composure and try to keep a sense of humor. Your children's behavior is affected by your attitude and conduct.
13. Assure your children they are not to blame for the breakup, and are not being rejected or abandoned by either parent.
14. Don't criticize the other parent in front of your children. Your children need to respect both parents.

What are court costs and how much will they be?

Depending on the type of case, court costs in a family law case may include the filing fee, court reporter's costs, fees for the final decree, statutory witness fees, service fees, and the cost of depositions under certain circumstances. For example, the current filing fee for a dissolution of marriage case in Iowa is $100.
The court may order one or both parties to pay some or all of the court costs in a given case.

How long do I have to wait for my divorce to be final?

Iowa law requires a 90 day waiting period. The 90 days begins to run on the date that your spouse is served. A judge can waive the 90 day waiting period for "emergency" or "necessity" in any particular case. If you have a reason why the 90 day waiting period should be waived, you should ask your attorney whether the waiting period can be waived.