Iowa Divorce Requirements

Divorce

Divorce (Dissolution of Marriage) vs. Annulment

Divorce is the court-ordered termination of a marriage. In Iowa there is divorce and legal separation. When the court decrees (orders) a divorce, it means that the marriage ceases to exist. Divorce is permanent; the parties are free to remarry and their property claims are settled. Legal separation and divorce are in all respects identical, with the exception that the parties in a legal separation are unable to remarry. In Iowa, legal separation is not merely a step that is required before divorcing; there is no legal separation requirement. If you are legally separated, and decide you want to be divorced, you can file a motion with (ask) the court to amend your legal separation to change it to a divorce decree.

Annulment

Annulment, on the other hand, establishes that your marriage never existed. Generally, annulment is granted because the union was illegal in the first place for reasons such as the couple were close blood relatives, one or both of the parties was underage, or one of the parties was already married to someone else, (bigamy). An Iowa marriage may be annulled for the following reasons:

1. The marriage between the parties is prohibited by law;
2. Either party was impotent at the time of the marriage;
3. Either party was already married at the time of the marriage, provided the couple did not live and cohabit after they knew of the death or divorce of the former spouse;
4. Where either party was a ward under a guardianship and was found by a court to lack the capacity to contract a valid marriage. (IA Statutes 598.29-30)

Iowa courts may award compensation as in divorce to a party who entered into a marriage in good faith, believing the other party capable of contracting, but which was later annulled, (IA Statutes 598.32)

Spousal Support

Under Iowa law, the court may order support payments to be made by one spouse to the other as a result of annulment or dissolution of marriage (divorce) for a definite or indefinite length of time after considering the following factors:

• The length of the marriage;
• The age and physical and emotional health of the parties;
• The distribution of property;
• The educational level of each party at the time of marriage and at the time the action is begun;
• The earning capacity of the party seeking support, 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;
• The feasibility of the party seeking support 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;
• The tax consequences to each party of the payment of support;
• 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;
• The provisions of an antenuptial agreement (sometimes known in everyday speech as a prenuptial agreement.);
• Any other factors the court determines are relevant.

(IA Statutes 598.21A)

Filing Requirements -- Jurisdiction

The law limits the authority of state courts to grant divorces. This authority is known as jurisdiction over a court proceeding. For an Iowa court to have jurisdiction over a divorce, at least one of the parties must have lived in Iowa for one year immediately preceding the filing. If both spouses live in Iowa, the divorce case can be heard in the district court of either Iowa county where the spouses live. (IA Statutes 598.2)

Residency Requirement

You do not have to remain at the same address to fulfill your residency requirement. You can move anywhere within the state from which you are filing. The forms do not require you to list all addressees, but you should be prepared to prove where you lived during the separation in the final hearing.

Proof of Residency

Your residency is substantiated by your sworn complaint. The testimony is all that most courts require to verify residency. But cases have been dismissed and even overturned because of improper proof of residency.

Resident Versus Nonresident

A court may take on a divorce proceeding even if your spouse is not a resident of Iowa. If you or your spouse moves to another state after the divorce has been filed, you may still have your case heard in Iowa.

How To Establish Residency

There are a number of ways to establish residency, such as taking the following actions in the jurisdiction:

• Register to vote.
• Get a driver's license.
• Get a job.
• Purchase a residence.
• Sign a lease.
• Open charge accounts or bank accounts.
• Register your car.
• Take out a library card.

Whatever you do, do not maintain a residence in another state that could imply that you do not intend to remain in the state from which you file.

County Jurisdiction

Iowa has counties that govern the court where your divorce will take place. This is called venue. The divorce must be filed where either the petitioner or respondent resides or where either is regularly employed or has a place of business.

Documents to File

• In Iowa, the individual initiating a divorce (Petitioner) begins divorce proceedings by filing the following documents with the district court clerk's office. (A list of all Iowa clerk's offices is available at www.judicial.state.ia.us/wfdata/files/petitionerspacket.pdf pages 18-19.)
• Petition for Dissolution of Marriage with no Minor Children (FL-101)
• Coversheet for a Petition for Dissolution of Marriage with no Minor Children (FormFL-102)
• Confidential Information Form (Form FL-103) (Do not give a copy to your spouse)
• Original Notice (Form FL-104)

*** It is important to note that Iowa requires Petitioners to use court-approved forms if ALL of the following statements are true:

• You are getting a divorce.
• You do not have minor children.
• You do not have children age 18 or older who still need your support.
• You have not hired an attorney to help you with the divorce.

The clerk will have information about the exact filing fees. If you believe you are unable to afford the filing fee, you can ask the court to postpone the fee by filing a Form FL-109 Application and Affidavit to Defer Payment of Costs.

The state legislature sets the following fees, which sometimes change:

Notice Requirements

Within 90 days of filing the Petition for dissolution of Marriage with the clerk of the court, the Petitioner (the person initiating the divorce) must serve (deliver) to the Respondent (the other spouse) the Original Notice Form that was signed by the clerk of the court along with a copy of the Petition. Failure to deliver the documents within the 90-day period will result in the dismissal of the case. Once the Petitioner serves the papers on the Respondent, the Petitioner files the Proof of Service (signed by the Respondent) with the clerk's office.

Two Acceptable Methods to Serve your Spouse:

1. If you know where your spouse lives, you can serve your spouse yourself.
   a. Hand the documents to your spouse yourself or send them to your spouse by regular mail; and
   b. Ask your spouse to sign an Acceptance of Service Form (FL-105), then make a copy, and send the original, signed form to the clerk of the court.
2. Arrange for the county sheriff or a civil process server to serve the papers on your spouse. (Petitioners who ask to have deferred costs are required to use this option.)
3. Supply a filled-in Form FL-104 Original Notice
4. Supply a filled-in Form FL-106 Directions for Service (where Petitioner knows where the spouse lives)
5. The sheriff or process server will file the Proof of Service with the clerk

Service for Petitioners who do NOT know where the spouse lives:

Petitioners who do not know where the spouse lives can ask the court's permission to provide notice of the filing for dissolution of marriage by publication in a newspaper. Courts will grant permission if the Petitioner has made a good faith effort to try other means first to locate the spouse, such as contacting the spouse's family members, employer, co-workers, phone directories, Internet directories, or contacting an attorney for assistance.

A Petitioner who has satisfied these requirements can formally request permission to provide notice by publication in a newspaper by filing FL-108 Motion and Affidavit to Serve by Publication. Once the judge gives permission to publish your Notice by publication, you must place the Notice for publication once each week, for three weeks in a row, in a newspaper that is generally distributed throughout the county where the divorce is filed. In addition, you are required to mail a copy of FL-108 Motion and Affidavit to Serve by Publication and FL-101 Petition for Dissolution No Minor Children to the last known address of your spouse. Once the third notice has been published, file the proof of publication supplied by the newspaper with the clerk of the court.

Decree by Default -- Requirements

• A Petitioner who cannot locate a spouse must mail a copy of the Original Notice and the Petition to the spouse's last known address to obtain a decree by default.
• File one copy of the form with the clerk's office.
• If the court assigns a hearing date, the Petitioner must attend.
• If the judge signs an order granting the motion, the Original Notice by Publication must be published once per week for three weeks in a newspaper of general circulation or one that is sold in the county where you live.
• There is a 90-day waiting period before a judge will sign a default decree and that period begins 20 days after the last day the Original Notice is published in the newspaper.

Life Insurance Issues in Divorce

A divorce decree, maintenance order, or annulment voids a life insurance policy beneficiary designation to a former spouse (or relative of a former spouse) that was made during the marriage, unless:

• The decree designates the former spouse or former spouse's relatives as beneficiaries
• the insured designates (redesignates) the former spouse's relatives as beneficiaries after the final divorce decree
• The insured and the insured's former spouse remarry

(598.20A)

Joint Petition -- No Minor Children

In Iowa, if a couple with no minor children agrees to obtain a divorce and t agrees on the division of property, assets, and debts, they can begin divorce proceedings by filling out and signing a Settlement Agreement Form (FL-128) and taking it to the court clerk's office to request a court date with a judge.

Financial Affidavits

During the 90-day waiting period, each spouse must complete Financial Affidavits (FL-124), which include detailed information on sources and amounts of income, taxes, debts, value of assets, and budgets. If you and your spouse agree on how to divide your property, assets, and debts, you can work together to fill out a Settlement Agreement Form (FL-128). Both parties can agree to waive the requirement to file financial affidavits with court approval. Otherwise, you will not get a final decree until you file financial affidavits with the court. (IA 598.13)

Open Hearings

Hearings are generally held in open court although judges do have discretion to close a hearing. The court may enter a decree of dissolution without a hearing if ALL of the following circumstances have been met:

1. Both spouses have certified in writing there has been a breakdown of the marriage relationship to the extent that “the legitimate objects of matrimony have been destroyed” and there is no reasonable likelihood the marriage can be preserved;
2. Both spouses have filed all documents required by the court and by statute;
3. Both spouses have entered into a written agreement settling all of the issues involved in the dissolution of marriage;
4. The respondent has not entered a general or special appearance or filed a motion or pleading in the case;
5. The waiting period (See Waiting Period rules, below) has been satisfied. (IA Statutes 598.8)

Temporary Orders

The court may order either party to pay for the separate support and maintenance of the other party and the children and to enable the other party to bring or defend the divorce action. The court may also appoint a guardian ad litem, if necessary (See Section on Guardians ad Litem) to protect the best interests of the children or rule on temporary custody of the children. A temporary visitation schedule may also be ordered.

If either spouse needs a temporary order from the court, such as temporary financial support while the divorce is in progress, but not yet final, that person should file a copy of a motion with the court and deliver a copy of the Motion to the other spouse or the other spouse's attorney (if any). The court will set a hearing date.

The other spouse may disagree with requests made by the first spouse for a court ruling and is entitled to file a Response to the Motion (FL-123) to inform the court the reason for the opposition to the motion. Again, all motions are filed with the court clerk and a copy sent to the other spouse or the spouse's attorney, if any.

Some district courts order couples to attend educational or mediation sessions before holding a court hearing or granting a divorce. This requirement varies by judicial district. (IA Statutes 598.10)

Changes in temporary orders are possible when a request is made by either party and there is a demonstrated substantial change in circumstances occurring subsequent to the temporary order that justifies a change. (598.11)

Trial

If a couple cannot agree on how to settle the divorce, the case will have to go to trial.

Each person should fill out a separate Request for Relief Form (FL-127) and Financial Affidavit Form (FL-124).

Answer

After the petition is filed, the Respondent has 20 days to respond by filing an answer at the clerk's office by using one of the following forms:

• FL-115 Answer to Petition for Dissolution of Marriage (Divorce) with No Minor Children (in response to Petition Form FL-101)
• FL-116 General Answer for a Divorce petition (that was NOT Form FL-101).

Service of the Response on the Petitioner

• The Respondent can hand a copy of the Answer to the Petitioner or mail a copy to the address shown on the Petition
• If the Petitioner has an attorney, mail a copy to the attorney's office.

Waiting Period

Under Iowa law, there is a 90-day waiting period before a judge can sign the final divorce decree. The 90 days usually begins to run on the LATEST of the following dates:

• When the Respondent has been served with the Notice and Petition -- OR --
• When the Acceptance of Service form (FL-105) is filed at the district court clerk's office -- OR --
• If the Petitioner serves notice by publication in a newspaper, the 90-day waiting period begins 20 days after the final (third) date of publication in the newspaper. (598.19)

Under certain circumstances, a judge may waive or shorten the waiting period. The party wanting the change would file a form FL-122 Motion to explain why the waiting period should be shortened.

The other spouse can argue against shortening the waiting period by filing a form FL-123 Response with the clerk of the district court.

Iowa Judges also have the option of requiring a couple to participate in conciliation efforts for a period of sixty days.

Actions both parties must take during the 90-day waiting period:

• If a party is seeing Spousal Support or Attorneys Fees, file Motion Form FL-122 at the clerk's office
• Fill out and file Financial Affidavit Form FL-124 at the court clerk's office.
• Spouses who agree on the division of property, assets, and debts must complete a Settlement Agreement FL-128 and file it with the court clerk's office.
• If you served notice by publication in a newspaper

Finality of Decree

An Iowa divorce is not final until a judge signs a final divorce decree, called a Decree of Dissolution of Marriage. A judge writes the final decree.

There are three methods for obtaining a divorce in Iowa: (1) a default decree, (2) a written agreement between the parties, or (3) a trial.

Default Decree

A Petitioner can ask for a divorce decree by default if the Respondent fails to file an Answer to the Petition by the deadline. The deadline varies depending on the method of service of the divorce Petition.

a. For service in person, by mail, or through a process server:

If you served your spouse with the Petition and Notice in person, by mail, or through a process server, and your spouse fails to file an answer within 20 days of that date (or the date you filed the Acceptance of Service at the court clerk's office) you are entitled to a decree by default.

• Before you can ask for a decree by default, however, you must give your spouse 10-days notice in writing that you intend to seek a default decree.
• To do this, file a Form FL-126 Notice of Intent to File a Written Application for a Default Decree and either deliver or mail a copy to your spouse. After you file and serve Form FL-126, wait 10 days, plus 3 more days for mailing.
• If your spouse does not respond within 13 days, you can file a Motion FL-122 to set a hearing date and deliver or mail a copy (that was stamped by the clerk's office) to your spouse.

OR

b. If you do not know where your spouse lives and, therefore, served your spouse by publication in a newspaper:

• If you served your spouse by publication in a newspaper and your spouse did not file an Answer within 20 days after the third publication of the notice, you can file a Motion FL-122 to set a hearing date and deliver or mail a copy (that was stamped by the clerk's office) to your spouse.

For ALL Petitioners seeking a Divorce Decree by Default:

Before the hearing, fill out a Request for Relief (FL-127) that tells the judge you want a final divorce decree and what you want to include in the decree, file it with the clerk's office, and either deliver or mail a copy to your spouse.

Attend the hearing and bring the Form for Request for Relief FL-127.

Contested and default actions become final the 31st day from the date of the clerk's notice of decision. If a timely appeal is filed, the judgment is not final until the expiration of the appeal period.

All divorce cases that are placed on hold by request of one of the parties and that remain inactive for a period of 6 months will be dismissed unless there is a request to reactivate the case.

Post-Divorce Issues -- Retirement Accounts

• If the final decree gives one spouse an interest in the other spouse's retirement account or pension, a separate order is required, which is called a Qualified Domestic Relations Order (QDRO). Advice from an attorney will likely be required for this type of issue.
• Changes to the title of real estate is another area in which qualified legal representation is advised.

Mediation in Iowa

Mediation is a method of cooperative dispute resolution that is led by a neutral party who assists the couple in reaching agreements. This method is an alternative to litigation, a more common method of resolving disputes, which is intentionally confrontational and involves attorneys representing one side against the other in court and results in a “winning” and “losing” side. A court may order mediation because of a request by either party or because the court itself determines it would be useful to the couple. (598.7) Note that mediation will not be ordered when there is any evidence of domestic abuse.

The state supreme court sets all rules for the mediation program and any dispute resolution program must comply with ALL of the following.

• Each participant in a mediation program must attend a mediation session with the mediator; listen to the mediator's explanation of the mediation process; and present his/her own view of the case and listen to the other party's response.
• Participation in mediation does not require the parties to reach an agreement.
• The parties may choose the mediator, or the court can appoint one.
• A court-appointed mediator must meet the qualifications established by the state supreme court.
• Parties to the mediation have the right to legal advice and presence of counsel at all times.
• The parties to the mediation must present any agreement reached through the mediation to their attorneys, if any.
• A mediation agreement reached by the parties is not enforceable until approved by the court.
• The costs of mediation are paid by the parties, as agreed to by the parties, or as ordered by the court, and may be taxed as court costs. The costs of mediation are to be provided on a sliding fee scale for parties who are determined to be unable to pay under Iowa law. (Iowa statutes, section 815.9).

Mediation Q & A

What are the benefits of mediation?

With mediation you have a chance to present your ideas in an informal, private setting. It is a time for you to be heard and to listen to others. The mediator is impartial and trained to help you and the other party talk about your needs and differences so that you can work things out together. Mediation may help you reach agreements that will let you get on with your life and possibly keep you out of court in the future. By discussing your options in mediation you may discover choices you did not know you had. Mediation may help improve communications and permit the parties to find better ways to deal with this conflict. Costs associated with mediation may be lower than those experienced for prolonged litigation.

How do I prepare for mediation?

Mediation deals not only with the legal issues but also with underlying relational issues that are important to you. It is important to come to the mediation session with an open mind, ready to consider new options that may not have been raised previously. It is also important to be willing to work together towards reaching an understanding that would be acceptable to each of you.

Who are the mediators?

The mediators are individuals who have been trained or certified by the court based on their training and mediation experience. The courts maintain a list of available mediators.

What happens during mediation?

At the start of a mediation session, the mediator will explain how mediation works and will answer your questions. The mediator will ask each of you to state your views, express your feelings, and describe what you would like to have happen in your case. The mediator will then help you explore ways to resolve the matter in a way that is acceptable to each of you. The mediator may ask to meet with you alone so you can talk more comfortably. If an agreement is reached, it will be put in writing and signed by all parties. Later, the agreement will be presented to the judge who will review it and then issue a court order approving the agreement. If an agreement cannot be reached between the parties, or if one or more of the parties fails to follow through with the mediation session, the court will hear the case in a regular court hearing.

Divorce -- Minor Children

Grandparent and Great-grandparent Visitation

In Iowa, grandparents and great-grandparents can ask the court for visitation with their grandchildren. In making the decision, the court will first consider whether a “fit parent” objects to a grandparent's request, however, because there is a presumption that a fit parent will act in the best interests of a minor child.

A determined grandparent can overcome a parent's objection by proving ALL of the following by clear and convincing evidence:

• The grandparent had established a stable relationship with the grandchild before the petition was filed;
• The parent who is being asked temporarily to relinquish custody or control of the child is unfit to make the decision over visitation;
• It is in the best interest of the child to have visitation with the grandparent;

(Iowa Statutes 600C.1)

Parenting Petition

For the courts in Iowa, to have jurisdiction (the authority to hear a case and render a decision) over a parenting petition, one of the following must apply: 1) both parents must live in Iowa, 2) the petitioner (person who initiates the parenting action) must have lived in Iowa for at least one year; or 3) the petitioner lives in Iowa and the other parent can be served with papers in Iowa. A Decree on Parenting Petition is filed with the court.

If both parents agree to file a parenting action, even if they do not agree on a parenting plan or child support, they can file a Joint Parenting Petition, together with a Personal Data Sheet. (http://www.courts.state.nh.us/forms/nhjb-2077-fs.pdf)

For cases in which only one parent wants to file the Parenting Petition, along with the parenting petition, this parent must also file a Personal Data Sheet. As in the initial divorce filing, the non-filing parent is entitled to receive actual notice of this filing from the petitioning parent.

Mandatory Course on the Needs of Children in Divorce Cases

The court will order the parties to a divorce action to participate in a mandatory course to educate and sensitize them to the needs of children during and subsequent to divorce within 45 days of service of notice of the Petition. Participation may be waived for those who have previously taken the course or its equivalent. Each district certifies courses for its jurisdiction. The course must cover, at a minimum, relating to the parents regarding divorce and its impact on the children and family relationship, parenting skills for divorcing parents, children's needs and coping techniques, and the financial responsibilities of parents following divorce. Each party must submit a certificate of completion before obtaining a final decree. The court may also order counseling for children of divorcing parents. (598.15)

Conciliation Efforts (598.16)

The court may order the couple into counseling for 60 days. The conciliator will file a report with the court at the completion of the counseling efforts. An exception to the 60-day counseling order is made where there is a history of domestic abuse.

Custody -- Joint Legal Custody

Iowa courts will seek to order joint custody of children in divorce cases to assure the child the maximum continuing physical and emotional contact with both parents, as is reasonable and as is in the best interest of the child. The philosophy is that joint custody encourages the parents to cooperate in sharing the rights and responsibilities inherent in raising the child and unless direct physical or significant emotional harm would threaten the welfare of a child or one of the parents, joint custody should be the goal.

If, on the other hand, there is evidence of domestic abuse, the court's default position is not to order joint custody, This position can be overcome by convincing the judge there was no abuse or that for whatever reason, the best interests of the child would nevertheless be served by ordering joint custody. But, if a finding of abuse exists and no one refutes it, this fact outweighs the consideration of any other factor in considering the award of custody.

Before awarding custody, the court may order mediation to determine whether joint custody is in the best interests of the child, regardless of the desires of the parents. The best interests of the child are paramount in the judge's eyes.

Factors Determining Custodial Arrangement

• Whether each parent would be a suitable custodian for the child;
• Whether both parents have actively cared for the child before and since the separation;
• Whether each parent can support the other parent's relationship with the child;'
• Whether the proposed custody arrangement is agreeable to the child;
• Whether one or both parents agree to joint custody;
• The geographic proximity of the parents;
• Whether the safety of the child or the parent(s) would be jeopardized by joint custody or by unsupervised, unrestricted visits.
• Whether a history of domestic abuse exists;

Joint Physical Care (Custody) (minor children split time living with both parents)

As with all decisions involving children in divorce, judges always look to the best interests of the children as adults submit plans and negotiate agreements they feel they can live with. Iowa courts may award joint physical care to both parents upon the request of at least one of the parents. But, before ruling on a request for joint physical care, a judge may require parents to provide (individually or together) a Joint Physical Care Parenting Plan.

Factors Addressed by a Joint Physical Care/Custody Parenting Plan

• how the parents will make decisions affecting the child;
• how the parents will provide a home for the child;
• how the child's time will be divided between the parents and how each parent will facilitate the child's time with the other parent (i.e. transportation and coordinating activities for the child);
• financial arrangements in addition to court-ordered child support;
• how the parents will resolve major changes or disagreements affecting the child, including changes that arise due to the child's developmental needs; (598.41)

If the judge does not grant joint physical custody, and only one parent is awarded physical custody, it is vital for that parent to support the other parent's relationship with the child. The rights and responsibilities of joint legal custodian of the child include equal participation in decisions affecting the child's legal status, education, medical care, extracurricular activities, and religious instruction. If the parents file an application with the court to modify the arrangement, the court may refer the couple to mediation to work out the problems before ruling and will only make a change in the case of abuse or physical or substantial emotional harm to the child. (598.41)

Guardian Ad Litem

In divorce cases, a guardian ad litem is an attorney appointed by the court to represent the best interests of minor children when parents are unable to agree on matters like custody or visitation or when there are family situations that adversely affect minors' welfare such as abuse, neglect, juvenile delinquency, or domestic violence. The guardian ad litem is an independent investigator of the issues in dispute and prepares a written recommendation to assist the court by determining the arrangements most beneficial for the minor(s) rather than for either or both of the parents. The judge makes the final decision using the recommendations along with other evidence in the case. (598.12)

The duties of a guardian ad litem include the following types of actions:

• Conducting in-person interviews with the child (children), if age appropriate, parents, guardians, or other people with custody of the child (children);
• Visiting the home or residence of the child and any prospective home or residence where the child will be placed;
• Interviewing any person providing medical, mental health, social, educational or other services to the child (children) prior to hearings;
• Obtaining first-hand knowledge of parties, facts and circumstances, if possible, of the parties involved in the issues that led to the need for a guardian ad litem;
• Attending hearings regarding the issues involving the guardianship.
• The same person my serve as the minor's legal counsel and as guardian ad litem, although the court may appoint separate people if the same person cannot properly represent the minor in both capacities.

(IA 598.12)