DISCLAIMER: Our Family Law attorneys are licensed in the states of Iowa, Nebraska, and South Dakota. Although all three states follow the same general principles in Family Law cases, there are important distinctions. It is important to contact a lawyer to understand those differences. The information provided below is intended to provide a brief overview of the general principles and does not constitute legal advice.
Q: Is it possible to get a divorce without going to court?
A: Yes. In fact, most divorces end without stepping foot inside a courtroom. However, this does not mean the court is not involved. Most cases are resolved with the parties reaching an agreement on all relevant issues and then getting that agreement approved by the court. If you and your spouse agree on the terms of the divorce, our attorneys can assist you in getting the agreement approved. If you do not agree, our attorneys can also handle contested divorces that do go to trial.
Q: What is the process for getting a divorce, a custody award, or a modification of a custody agreement?
A: The process is nearly identical regardless of what you need to accomplish. The process starts with filing a Petition with the court and serving the other side with the paperwork. The parties then exchange certain information. Depending on the nature of the case, a temporary hearing may take place which establishes the status quo until the parties go to trial. For example, in a custody case, the court may enter orders on legal custody, physical care, child support, etc. In a divorce, the court may determine who gets to live in the marital home prior to trial, who has to pay the bills, who gets possession of the marital vehicles, etc. These orders would control the conduct of the parties for the next several months until trial. The parties then typically engage in discovery, which is a more formal exchange of information as the parties prepare for trial. At any time during this process, the lawyers may discuss resolution. If resolution is not reached, the court may order mediation, which is discussed below.
Q: What is mediation? Is it required?
A: Mediation is one of the most common ways to reach a resolution. Mediation involves hiring a trained third party to review the case, who helps the parties resolve their disputes without going to trial. Mediation is used when an agreement cannot be reached by the attorneys alone. Typically, mediations occur in a law office with the parties separated, and the mediator going back and forth addressing issues with each side until resolution is reached. The benefits of using a mediator are clear – it is much cheaper than going to trial. It also often results in better results for the parties, as it takes the decision out of the hands of a judge, who may not have time to understand all the issues relevant to your situation. Mediation is so useful, in fact, that most judges require the parties to at least attempt it prior to proceeding to trial. Mediation may be waived if there is a history of domestic violence or it is clear there is no likelihood of resolving the disputes.
Q: Does it matter which spouse files for dissolution of marriage?
A: It does not change the way the judge ultimately views the case, but there are certain advantages to filing first. For example, most people who file first have had time to discuss a litigation strategy with their lawyer and begin preparing documents. This puts that party in a strategic advantage early on, as the other party often spends the first couple weeks trying to find a lawyer. This is especially true if a temporary hearing is set shortly after the petition is filed. The first to file is also typically the first to present the case at trial. That provides an opportunity to frame certain issues before the other side gets to present any evidence.
On the other hand, there are some disadvantages by filing first. Most notably, the person who files first has to pay the filing fee and the expense of drafting the petition. It also forces you to state what you are seeking, so the other side will know first what you want the judge to do, giving them a certain insight into the case.
Although there are some strategic reasons to file first, in most cases it makes very little difference by the time a case reaches trial.
Q: How does my spouse’s affair affect our divorce proceedings?
A: It is rare that an affair materially affects a divorce proceeding. Although there are some exceptions (notably in South Dakota), divorces are “no-fault” proceedings. That simply means the judge will grant a divorce without ever having to prove why the marriage failed. However, this does not mean an affair is totally irrelevant. For example, you may be able to demonstrate the unfaithful spouse is unable to act in the children’s best interests. Similarly, you may be able to show a significant amount of marital funds was used in furtherance of the affair (gifts, trips, etc.), which may affect the property distribution. Each case is unique, and our attorneys can provide you further guidance on how these issues may affect a divorce proceeding.
Q: What happens when one spouse does not believe in divorce?
A: The court will not force two people to stay married even if one spouse does not agree to the divorce. One party may contest the dissolution proceedings by refusing to participate, but this will only result in a default order. One way or another, dissolution of the marriage will occur unless the filing spouse withdraws the petition.
Q: What is common law marriage? If I have a common law marriage, do I have to go to court to get divorced?
A: Common law marriage is a misunderstood area of law and can vary widely by state. But generally, common law marriage is an alternate way to achieve a legal marriage without the need of the formalities typically associated with a marriage ceremony. For example, in Iowa, a common law marriage requires that the parties agreed to be married, lived together continuously as partners, and otherwise acted like a married couple. This is a very fact-driven issue and takes into consideration how the couple addressed themselves to friends/family, if one partner adopted a different last name, and how they filled out certain forms for insurance, banking, taxes, etc. A common misconception is that a common law marriage is triggered as soon as a couple lives together for a certain period of time (a common belief is either 7 or 10 years). That is not the case in Iowa, as there is no requirement that the parties live together for any specified period of time before a common law marriage becomes binding.
Let’s assume for a moment that you meet all the legal requirements for a common law marriage, and now you want a divorce. Unfortunately, “common law divorce” does not exist. That means you have to go through the same divorce process as a couple who went through a formal marriage ceremony. The only difference is you may have to prove the existence of a common law marriage before you can get divorced.
Common law marriage and its impact on divorces, property distributions, wills, trusts, and estates is a rather convoluted and complicated area of law. If you find yourself in a situation where common law marriage is relevant, our attorneys strongly recommend you set up a consultation to discuss the particular aspects of your case.
Q: Do I need a formal custody agreement even if we get along?
A: There are more and more unmarried couples with children. And like married couples, most are able to amicably work out a schedule, provide support for the children, and act in the children’s best interest. A common question is whether a formal custody agreement is necessary for unmarried couples if things are going well. The short answer is yes. The harsh reality is, although things may be going well now, there is no guarantee that will continue. A custody agreement created when the parties are getting along is the best way to reach an agreement. Not only is it much cheaper, but it also ensures both parents are really looking out for the children instead of trying to punish the other parent. It also provides a sense of security knowing the other parent will not simply take the child and refuse visitation. When both parents know the rules, there are far fewer disagreements.
Q: Do we have to continue following a custody agreement that no longer works for us?
A: As long as both parents can agree on an alternative, you are not forced to continue using an unworkable agreement. Custody agreements are put in place in the event the parents no longer agree. If you both agree on an alternative, proceed with what works for you and your family. Having said that, if there has been a permanent change which makes the current order unworkable, it is advisable to seek a formal modification of the agreement to protect you in the future in the event the other parent no longer agrees on the new schedule.
Q: What is the difference between physical and legal custody of minor children?
A: This is probably the most common question, and the one where there remains the most confusion. When people talk about creating a custody agreement, they generally use shorthand and just use the term “custody.” In reality, there are two distinct components at play: (1) legal custody and (2) physical care.
Legal custody involves how decisions regarding a child’s health, education, and religious upbringing are made. It also allows parents legal access to information about those issues. There is a presumption that both parents participate equally in these decisions. Meaning that in all but a very few cases, parents end up with joint legal custody.
Physical care, on the other hand, is basically where the child will be spending his/her time. There are countless ways to resolve the physical care question. For parents who live close together and are equally capable of providing day-to-day care, splitting the time equally between households may be appropriate. On the other end of the spectrum, one parent may only receive limited supervised visitation. Most cases end up somewhere in the middle. Even if you agree that the children’s time should be split equally, there are many ways to accomplish this based on the unique circumstances of your family. The physical care question must also consider how to handle holidays, family events, summer vacations, etc.
There is no one answer when developing a physical care plan. Our attorneys believe every custody case is unique, which is why you should not draw conclusions on your situation by comparing it with someone else’s. We strongly recommend you call us for a consultation.
Q: Is there a particular age when the court will take the child’s wishes into account?
A: Simple answer – no. This depends heavily on a number of factors, most notably the judge who is hearing the case. Having tried cases all over the tri-state area, our attorneys have discovered that it is clear some judges give the child’s wishes great weight depending on their age, maturity, and reasons for their decision. Other judges are very clear that children should be left out of the trial experience completely. Determining how to let the judge know about a child’s wishes is a decision to make with your lawyer, and the answer varies widely depending upon the facts of a particular case.
Q: How is child support determined?
A: Child support is determined by a complicated formula but is largely based on the total of both parent’s incomes combined, as well as the number of children the couple have, how much time the children spend with each parent, expenses for the children, and whether either parent has children from a prior relationship. It is best to have a professional who understands the complexities run the calculation for you. There are plenty of free child support calculators available online to provide an estimate of what you can expect, but those calculators are not updated regularly and may not provide a precise number. Depending on the facts of the case, it is also possible to deviate from the number derived from the child support calculator. Oftentimes, child support is a central component to resolving cases involving children, so it is important to work with someone who has a comprehensive understanding of the complexity of this issue.
Q: What information do I need before I talk to a lawyer?
A: Our attorneys are willing to speak with you even if you do not have all of your paperwork. However, the more prepared you are, the better advice you will receive. If you are considering a divorce, it is important to begin compiling your financial records (tax returns, pay stubs), credit card statements, bank records, records concerning any real property, titles and loans to vehicles, documents concerning retirement accounts or other investments, and documents concerning any other property that you own. The more prepared you are when you speak to a lawyer, the more information you will receive in return.