DIVORCE (“dissolution of marriage”)
FREQUENTLY ASKED QUESTIONS
Note: This information is not meant to serve as legal advice. It only provides a general description of the law and does not go into details which might affect your case. You should seek the advice of a divorce attorney concerning your specific situation. Use these questions and answers to prompt questions when visiting with your attorney.
When my spouse and I can no longer live together, what are my legal options?
Divorces, Annulments and Separation: Whether one is asking for a divorce, annulment or legal separation, the court can decide things such as custody, spousal support, child support, and property and debt division. A “divorce” is another word for “dissolution of marriage.” The rights, privileges, and responsibilities of marriage are dissolved by this proceeding and replaced by a decree which makes the parties “single persons” again. An “annulment” results in a decree which says the marriage was never valid. Do not confuse an annulment granted in civil courts with annulments granted by some churches which only affect one’s status within the church. The reasons for an annulment are limited. The most common would be an illegal marriage – where someone was already married to someone else. A legal separation (also called “separate maintenance and support”) is where the parties continue to remain married but rights and responsibilities, such as property division, support, etc., are determined by court order.
Who is entitled to get a divorce in Iowa?
Generally, one of the persons involved in a divorce filed in Iowa must be a resident of Iowa. If the person who starts the legal action lives in Iowa, they must have been a resident of Iowa for a year.
What is a common law marriage?
If a marriage license was not obtained, a man and woman can still be legally married by common law. Three things must be proven:
- Both parties intended to have a marriage relationship;
- A time of continuous cohabitation, though no length of time is required. However, the simple act of living together is not enough.
- Public declarations or “holding out” the relationship as a marriage. Some examples are:
- introducing one another as “my husband” or “my wife”
- exchanging wedding rings
- attending social events as “Mr. and Mrs”
- insurance policies designating the other as a spouse
- joint checking accounts or joint ownership of property
- claiming to be married on application forms
Do I have to prove my spouse is responsible for destroying our marriage to get a divorce?
Iowa is a “No Fault Divorce” state: A divorce is granted because one of the marriage partners claims there has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.
What if I believe the marriage could be saved through marriage counseling?
Either party may ask the Court to order the other to attend counseling in the hope of preserving the marriage. This is generally done shortly after the Petition is filed and before the trial. A sixty day period for counseling is provided by statute.
What will happen during a divorce in Iowa? (Procedure or Steps in Process)
With the exception of a collaborative divorce process, all divorces start with the filing of a Petition with the Clerk of Court. If a settlement is approved by final decree signed by a judge the case is finished and the remaining steps in the process are not required – except for the classes.
- Petition and Opening Orders: Prior to beginning a divorce, a consultation with an attorney is recommended to discuss how best to separate, handle care of children, divide assets and debt. A divorce begins with the filing of a Petition. Court orders concerning preserving property, mediation, classes, and pretrial conferences may follow. The Petition must be delivered to the opposing spouse and proof filed with the clerk of court. The opposing spouse files an Answer with the clerk of court.
- Mediation: Before a judge decides issues between the spouses, they may have to mediate. For good reasons a judge may waive this requirement. The parties are encouraged to make use of mediators at any point in the process.
- Classes: Parents, who have a minor child, are required to take classes which teach them how to reduce the stress of a divorce on children. All parties are required to take a course on mediation. Children may be required to take a class as well.
- Temporary Orders: Divorce trials may take a while –typically a year and a half to two years in Linn County. An early, quick decision by a judge with evidence submitted by affidavits is available as a stop gap measure. The judge can resolve issues such as child support, custody, physical care, visitation, alimony, and awards of attorney fees. Temporary orders are replaced with a final order.
- Discovery: After the Petition and before the final trial the parties may gather information from each other and from 3rd parties which may be helpful to their case. Divorce cases start with an initial order that requires the parties to share certain documents.
- Pre-trial conference: The parties are required to report which issues must be decided by a judge and which are settled.
- Trial: Trials in divorce cases are to a judge. There is no jury. The spouse who filed the divorce generally goes first and presents evidence. The opposing spouse tests the evidence following the presentation by questions called “cross examination.” Then the opposing spouse presents his/her evidence and it is tested by the first spouse’s questions.
- Final Decree: A judge prepares a written explanation of the law and evidence supporting the judge’s decision. This decision is a final decree which is shared with the parties.
Is there a waiting period before a divorce decree can be entered?
Parties to a divorce proceeding are required to wait 90 days after a proof of delivery of a Petition is filed with the clerk of court before a final order may be obtained. For “good cause” a judge can shorten the waiting period. If a complete settlement occurs the parties may move on to a final decree without intervening steps.
Can I get alimony? Will I have to pay spousal support?
Alimony (“Spousal Support”): Alimony is a payment from one party for the support of the other. The right to alimony is not controlled by gender. Alimony is awarded to accomplish one or more of three general purposes. Rehabilitative Alimony serves to support an economically dependent spouse through a limited period of education and retraining. Its purpose is self-sufficiency. An award of Reimbursement Alimony is based upon economic sacrifices made by one spouse during the marriage that directly enhanced the future earning capacity of the other. This type of alimony may be awarded to offset a greater award of property to the spouse who pays alimony. Its purpose is a fair division of economic advantages created in the marriage. Traditional Alimony is awarded when one spouse has greater earning capability and the other is limited by age, disability or life circumstances from adequately supporting themselves.
How is alimony calculated?
In Iowa there is no formula for calculating support. The amount of alimony awarded and its duration will differ according to the purpose it is designed to serve.
How is property divided? How is debt divided?
Property and debt which are obtained during the marriage are to be divided. The longer the marriage the less likely a judge will take into consideration the debt or assets the parties brought into the marriage. With a few exceptions, property which is inherited or gifted to one of the parties and not co-mingled with other family assets will be set aside for that person and not divided. Judges generally aim to divide the net worth of the parties equitably, which may or may not be equally. A judge may give one party a greater net worth than the other if fairness requires it. Division of ownership of pensions, 401-Ks and other retirement investments will require a special court order called a Qualified Domestic Relations Order.
What if my spouse refuses to obey the judge’s order?
Contempt of Court: When the court orders someone to do something and they do not do it, the offended party can ask the court to hold the offender in “contempt of court.” In other words, a judge requires the offender to explain why they did not obey and if the offender does not have sufficient reason, the judge can punish them.
Can my divorce decree be modified if things change?
Modifications: Changes in the circumstance of the parties after a decree is entered can be grounds for modifying the decree. Parts of a divorce decree which concern child custody, physical care of children, visitation, child support, transportation and spousal support (if previously awarded) can be modified. However, a party seeking a modification must show a substantial change in material circumstance related to the part of the order they want changed.