Children Coping with Divorce

I recently ran across a good blog cite titled "Updates in Michigan Family Law" authored by Jeane M. Hannah, a Michigan family law practitioner. In her article she refers to a new tool to help children cope with high-conflict divorce called Earthquake in Zipland. This is an interactive video game developed by a social worker.

Earthquake in Zipland is intended to unblock a child’s hidden conflicts and emotional distress and to facilitate healthy dialogue between the child (or children) and the parent to help school-age kids cope with divorce.

According to a recent American Bar Association article, the game features a superhero named Moose who must doctor his country after an earthquake has caused upheaval and chaos. Children are encouraged to perform certain tasks to move to a higher level including writing an online journal about their feelings. As noted by Ms. Hannah, the goal is to help children understand and accept that “even a superhero can’t put everything together exactly the way it was before.”

You can read the ABA Journal article here. It's Game on for Family Lawyers
You can access the game’s website here, where the game may be downloaded or ordered to arrive on a disk. A free demo may also be downloaded so that you can try it out prior to ordering.

Wife Sues Husband for Lottery Winnings

A Florida wife recently sued her husband for hiding $10.2 million in lotter earnings from her. She became suspicious of her husband when he started to keep the television turned off and disconnected the phone line. Her suspicions rose when she found a postcard about a new home purchase. http://www.foxnews.com/story/0,2933,312197,00.html

Until she Googled her husband's name and lottery number she was unaware of his great fortune. Apparently, the husband, being an avid gambler, pitched in for the winning ticket with 17 other individiuals.

In Iowa, the winnings would be marital property and most likely equally divided. In the event of divorce, the earnings would also be divided but the court may weigh factors, like whether the parties were separated at the time of the winning, in allocating the funds.

Splitting Up Money is Hard to Do

The Des Moines Register recently ran an article about how divorcing couples should take steps to ensure fair division of assets and debts. This is how the Iowa Court approach the subject too and follows an "equitable distribution" scheme. Despite avoiding the "community property" label, famous in states such as California and whereby the parties automatically each receive 50%, "equitable distribution" usually ends up at the same place but takes into consideration many factors and allows the Courts discretion to award one spouse a bit more than the other.

The article states that one of the worst mistakes couples make is to drag out the divorce in hopes of securing more money. Another mistake is to hang onto the house at all costs. This can be a huge economic noose around your neck especially if you are relying on alimony or child support to pay the mortgage. If the payor falls behind you are placed into a precarious position.

Other mistakes include failing to make a clean financial break. Order your credit report to make sure all debts are accounted for and allocated. Finally, forgetting to change your Will , power of attorney and beneficiaries on life insurance or retirement accounts can perilous especially if you remarry.

Alienation of Affection: The Spurned Spouse

A spurned spouse in Mississippi was recently awarded $750,000 under the theory that a rich business man committed alienation of affection by luring the wife into an affair with him. Mississippi is only one of 7 states that still recognize the theory whereby people claim someone stole their wife or husband. The claim is rooted in the antiquated notion that a woman is her husband's property.

Most states, including Iowa, have abolished alienation of affection as a basis for lawsuits.

While there was no mention whether the wife divorced the husband, the article did state that the wife "chose" the rich paramour over her plumber husband. Good thing the paramour, who is worth $22 million, has money. He has a hefty judgment to pay. And pay for his appeal to the U.S. Supreme Court. For the entire article see http://ap.google.com/article/ALeqM5iFkg05PN361reUpYAF9hGHIWeiXw

A Lousy Marriage Might Make you Sick

A lousy marriage might literally make you sick.

The Family Law Prof Blog recently posted an article on this topic.


The article reports that marital strife and other bad personal relationships can raise your risk for heart disease, researchers reported Monday. Stress, a well-known contributor to health problems, appears to be the culprit.


The study, in Monday's Archives of Internal Medicine, follows previous research that has linked health problems with being single and having few close relationships. In the new study, researchers focused more on the quality of marriage and other important relationships.



While divorce can also be stressful, could it be a cure?

Is This All I Get? Alimony-When You are Entitled

During divorce proceedings about half my clients ask whether they or their spouse is entitled to alimony. The answer is always "it depends."

After the equitable distribution of the marital estate the court will look at the whole spectrum of property available to both spouses—the marital property divided as well as the non-marital property under each spouse’s control. If one party is left with a deficit, then a court is to consider awarding alimony. In Iowa three types of alimony are recognized-periodic, rehabilitative, and reimbursement.

Periodic alimony is a monthly payment which terminates automatically upon the death of the person paying or the death or remarriage of the receiver. It can be modified if there is a material change in circumstances—either by increasing, decreasing, or terminating it. Finally, it is taxable to the recipient and deductible by the payor.

Rehabilitative alimony is typically awarded to parties who have put their career on hold while taking care of the marital home. It is meant to rehabilitate the individual into a job and become self-supporting.

Reimbursement alimony is intended as repayment to a spouse who put their partner through school where the financial rewards of the education have not materialized due to the short interval between the person obtaining the degree and the divorce.

The Court weighs other factors into its decision. Speak to a family law practitioner to see whether you qualify.

Divorce & Attorney Fees

Often clients want to know whether the can pin the attorney fees incurred in bringing a divorce action on the other party. The answer is "maybe."

Since divorce, paternity, and other family law proceedings are in equity the court has discretion to award attorney fees to a prevailing party. Iowa Code section 598.36 allows for this in divorce actions. However, just because the statute allows a party to request fees does not necessarily mean the court will be receptive. Even if you are the prevailing party.

The court will consider factors with the primary factor being finances. Even if you are the prevailing party but are the higher wage earner (or have a good-sized inheritance stashed away) it is less likely the court will award you fees. Nonetheless, when the opposing party pursues frivolous motions and is unreasonable sometimes the court is receptive to a request even if you earn more money than your spouse.

Iowa Statute Prohibiting Same-Sex Marriage Unconstitutional

Judge Robert Hanson, a Polk County Iowa district court Judge has ruled that Iowa's statute prohibiting same-sex marriage violates due process and equal protection, having no rational relationship to a legitimate government objective. The 62-page decision on a motion for summary judgment provides why the statute is unconstitutional citing approximately 20 reasons why same-sex marriage is deserving of equal protection.

The Polk County Recorder, the Defendant, is expected to appeal to the Iowa Supreme Court. The Iowa Supreme Court can decide to retain the case or send it to the Iowa Court of Appeals. Either way, an appellate ruling is more than likely a year or more away unless it is provided expedited review. For a complete ruling see http://www.dmregister.com/assets/pdf/D284280830.PDF

90 Days and Counting....

Did you know that Iowa has a 90-day waiting period before you can get divorced? This is minimal in comparison to other states some which require 6 months to a year before a divorce can be finalized.

Chapter 598 of the Iowa Code sets forth the divorce code provisions for the state of Iowa. Like most statutory sections, exceptions exist allowing a Court to waive the 90-day waiting period for "good cause" which is mostly undefined. Some Iowa counties are more lenient when applying this divorce provision while others take a hard-look approach.

Whether the 90-day provision can be waived depends on the facts of your divorce and the jurisdiction where the petition is filed.

New Zealand Prohibits Smacking

A controversial law banning parents from smacking their children has been passed by the New Zealand parliament. Prior to the new law, parents could use "reasonable force" to discipline their child. However, the new bill provides police with ample discretion over whether to prosecute offending parents.

Proponents of the bill believe it closes a loophole in child abuse cases where parents claim abusive disciplinary practices were "reasonable" and not illegal. Opponents claim that it will criminalize parents who are simply trying to control their children.

I am not aware of any law in Iowa that specifically prohibits physical punishment; however, if the discipline goes beyond the bounds of decency, or reasonableness, the Department of Human Services has jurisdiction to investigate the same and has the subsequent power to remove children from abusive homes. Of course, if the punishment causes intentional injury you may be looking at a child endangerment or other similar charge.

Man Cannot Recoup Child Support

A man cannot recoup child support payments he made for a son he later found out was not his own, the New Jersey state Supreme Court has ruled, overturning lower courts' decisions. In its unanimous ruling, the justices ruled that the man, identified only as Roy in the lawsuit, was not entitled to payments he made since his 1980 divorce because state law required such a challenge to be filed before the child turned 23 years old.
The court ruled that even though the man found out only long after his son turned 23 that he was not the father, it wasn't enough to force the biological father, identified as Patrick, to pay child support.

The man was told in 1999 by his ex-wife, identified as Bonnie, that their youngest son was actually the child of the boy's godfather.

Several years ago I tried a disestablishment of paternity action whereby my client sought to disestablish paternity because he questioned whether he was the girl's father and understandably felt that he should discontinue paying support if it wasn't his.

Iowa law requires such action to be filed before a child's 18th birthday. Like the NJ court, Iowa courts will not require reimbursement of amounts paid; however, if there is back-owed support owed the court, upon disestablishment of paternity through genetic testing, will "forgive" the back-owed amount. Whether this is fundamentally fair depends on which side of the case you are on.

Family Law Judge Orders Man Not to Have Girlfriend

A Canadian Judge has ruled that a 24-year-old Canadian man is not allowed to have a girlfriend for the next three years. The ruling came after Steven Cranley pleaded guilty on Tuesday to several charges stemming from an assault on a former girlfriend. Cranely tried to prevent his girlfriend from phoning the police by cutting her phone cord and punched and kicked her. He finally stabbed himself with a butcher knife when police did arrive, puncturing his aorta.

Doctors say Cranley has difficulty coping with rejection and runs a high risk to re-offend if he becomes involved in another intimate relationship. Justice Rhys Morgan said Cranley ''cannot form a romantic relationship of an intimate nature with a female person." citing this punisment as the only way to protect the public until Cranely seeks counseling.

In my experience, Iowa Judges have yet to hand down similar decision. However, who you date and his/her past can certainly impact your divorce, paternity, modification or other family law case when the children's custody or well-being is an issue.

The entire article is located at http://www.nytimes.com/aponline/world/AP-No-Girlfriend.html?ex=1182484800&en=6ecf36e95a19ae50&ei=5070&emc=eta1

Veterans' Disability Education Benefits: Who Should Get the Credit?

The Iowa Court of Appeals in In Re Marriage of Turner http://www.judicial.state.ia.us/court_of_appeals/Recent_Opinions/20070523/7-234.pdf recently addressed the issue of how Veteran's Disability Education Benefits should be applied to parents' post-secondary education responsibility. In Iowa, and depending on the circumstances, each parent may be liable for up to 33.33% of a child's post-secondary education expenses (using in-state tuition as a basis).

In Turner, the father, who received the Education Benefits as a result of his military service argued that the trial court erred because it treated the benefit as the child's resource without crediting it against his proprotionate share of his daughter's college expenses. The Court of Appeals had a different interpretation that was nonetheless to the father's benefit.

The Court of Appeals compared it to Social Security Disability or retirement benefits paid directly to a child but are counted as parental income and credited against the parent's child support obligation. The Court determined that the same approach should be applied in this case and the benefits should be counted as income to the father and credited against his share of his daughter's post-secondary education expenses.

This is an important issue because if your child is entitled to receive governmental benefits you may be entitled to a credit against your child support or other support obligation. Speak to an Iowa family law attorney to discuss what benefits these laws may provide you.

Vegan Couple Gets Life in Prison

A vegan couple were sentenced Wednesday to life in prison for the death of their malnourished 6-week-old baby boy who weighed approximately 3.5 pounds. The couple fed a diet largely consisting of soy milk and apple juice to their son claiming that they followed this diet to avoid animal products.

After seven hours of deliberation the ury found the couple guilty of malice murder, felony murder, involuntary manslaughter and cruelty to children. See story at http://www.msnbc.msn.com/id/18574603/?GT1=9951

In Iowa, there are several options in helping children in similar situations such as contacting Department of Human Services, claiming exigent circumstances and having an already existing decree modified, or filing a new action and requesting a temporary matters hearing. Other options such as injunctions may exist as well and can be explored by contacting a family law attorney with experience in this area.

Desperate Housewives Lesson

While I don't watch a lot of television I often indulge in sporadic episodes of Desperate Housewives. Interestingly, one of the key turning points centered around an older neighbor's uncommon and somewhat sinister reasons for disposing of her late husband's body into the abyss of a deep freezer. While this may not, on its face, seem to be applicable to divorce and family law issues, the reason she offered reminds us that proper post-divorce estate planning and change of beneficiaries is essential to protecting the ones you love.

In last night's espisode, the neighbor stated that despite being married to her husband (who she allegedly discovered dead in his easy chair with a tv remote in his hand) for 34 years, he failed to change the beneficiary of his pension plan from his ex-wife, to whom he was married for 4 years, to his current wife. His ex-wife would have received his pension benefits had his current wife disclosed his death.

Immediately prior to finalizing your divorce or other family law issues, including establishment of paternity, each client should review his or her assets and determine how s/he would like them distributed upon death. Your intent should then be finalized in a revised (or new) Last Will and Testament and/or a Trust.

Week to Week Better?

The Iowa Court of Appeal recently handed down a decision in a divorce case entitled In Re Marriage of Munger affirming a trial court's finding that a week-to-week rotation in a joint physical custody situation is best agreeing that it is predictable and avoids mid-week juggling of children and school work. See
http://www.judicial.state.ia.us/court_of_appeals/Recent_Opinions/20070411/7-157.pdf

This arrangement tends to work best for older school-aged children but not necessarily children within the "tender years" parameter, typically age five and under.

The Iowa Court also affirmed the use of a "special expense" account where both parties would deposit a certain amount each month to be used for the children's expenses in light of their inability to communicate regarding the same.

Iowa Courts and Dividing Propert During a Divorce

The state of Iowa recognizes that each marriage partner has an equitable interest in all marital property acquired during the course of the marriage. Unlike states with community property laws, which typically entitles each spouse to 50%, in an equitable distribution state the equitable interest does not appear until a divorce is filed.

The Iowa Code provides several factors the Court considers in making an equitable distribution. It can range from observing what sacrifices a spouse made during the marriage, assets brought into the marriage, inherited property, age disparities, health issues, earning capacity, and the number of minor children or dependents. This is not an exhaustive list.

The general rule is that all property acquired by either party during the course of the marriage using marital assets, regardless of title or source of payment, is marital property, subject to equitable division.
An exception to the general rule would be that an asset acquired by one party during the marriage by inheritance is not a marital asset or a gift acquired would be exempt. However, the Iowa Courts have lately been deviating from this usually tightly interpreted rule.

Once a court determines which property is actually marital property, and subject to equitable division, then it must determine how that property is to be divided. Unlike community property states, the courts in Iowa are not bound by any predetermined rules or formulas. A divorce court is a court of equity, and the court has complete discretion in awarding each spouse any particular marital property, and in any proportion that the court finds is fair under all circumstances.

Each case is unique and not all factors apply. To determine what you may be entitled to contact an Iowa lawyer well-versed in divorce and other domestic relation issues.

Iowa Attorneys Can Offer Unbundled Legal Services

The Iowa Supreme Court recently amended rules allowing attorneys to provide "unbundled" legal services to assist pro se litigants in filing and defending cases. This is particularly important in the family law and divorce setting because it allows individuals with limited financial resources to still obtain legal assistance in handling portions of the case whether it be drafting a decree or appearing at a contempt hearing.

While this concept is new to Iowa attorneys, it has been implemented by many other states for a number of years.

Please contact me if for more information about unbundled legal services that Sullivan & Ward, P.C. can provide.

Attempt to Murder Doesn't Waive Alimony

The Missouri Supreme Court recently affirmed the dismissal of an ex-husband's petition to terminate alimony based on his allegations that wife had sought to have him murdered. The couple had agreed to a non-modifiable maintenance term in their divorce decree. The Supreme Court noted that Missouri statutes provide that such an agreement, when found conscionable and incorporated into a divorce decree, binds the court. The Court reasoned:

"A non-modification provision can cut both ways. No one can know which party will need more or deserve less as time passes. As with all contract terms, a non-modification provision is an agreed allocation of future risk, bargained for and for which consideration is exchanged. The Missouri legislature has seen fit to allow such a clause to be elevated from contractual to judicial status by incorporation into the dissolution decree. We are bound to respect the statute and to enforce these documents as agreed to and ordered."

The Court rejected the husband's argument that a court may reconsider the conscionability of the agreement based on later events. It likewise found that waiver was inapplicable as the attempt to murder husband would not establish a "clear and unequivocal attempt to relinquish her contractual right to maintenance so long as [husband] is living." Finally, the court rejected the application of the public policy doctrine which prohibits an individual from receiving death benefits when they have murdered their spouse. Reasoning that wife would not benefit from the successful murder of husband, the court found these cases inapplicable.

The Ones Left Behind

Imagine toddlers stranded at daycare centers. Children left at schools. Siblings suddenly left in charge of younger brothers and sisters. Children being handed over to ill-equipped relatives. This is what occurs to the youth of our country when illegal-immigrant parents are swept up in home and work-place raids resulting in children being left behind. This is a complication that underscores the difficulty in effectively enforcing immigration laws against families that have already established themselves and begun raising families in the United States.

Three million American-born children have at least one parent who is an illegal immigrant; one in 10 American families has mixed immigration status, meaning at least one member is an illegal immirant. This is an issue that affects our country whether or not you are for or against immigrant reform. These are the children your kids and/or grandchildren go to school with. To read about some of the real-effects see http://www.nytimes.com/aponline/us/AP-Divided-Families.html?ex=1174363200&en=b96c2616c791a283&ei=5070&emc=eta1

Iowa Court Backs Off On Definition of Legal Custody

Recently, the Iowa Supreme Court issued an opinion in In re Marriage of Hynick which may influence how a non-custodial parent is treated as a decision-maker. The Court insinuated that the non-custodial parent has an apparently inferior role by stating as follows:

When joint physical care is not warranted, the court must choose one parent to be the primary caretaker, awarding the other parent visitation rights. See generally Iowa Code § 598.41(1)(a), (5). Under this arrangement, the parent with primary physical care has the responsibility to maintain a residence for the child and has the sole right to make decisions concerning the child’s routine care. See generally id. § 598.1(7). The noncaretaker parent is relegated to the role of hosting the child for visits on a schedule determined by the court to be in the best interest of the child. Visitation time varies widely and can even approach an amount almost equal to the time spent with the caretaker parent. See generally Iowa Ct. R. 9.9 (setting forth graduated credits against child support obligation for extraordinary visitation including a twenty-five percent credit for “167 or more [visitation days] but less than equally shared physical care”). Thus, the main distinction between joint physical care and primary physical care with liberal visitation rights is the joint decision making on routine matters required when parents share physical care.

It remains to be seen whether this decision is the start of a retreat from the principle of equal decision-making by joint legal custodians . On the one hand, the decision refers solely to decisions involving the child's "routine" care; on the other hand, the stark language of the non-custodial parent being "relegated to the role of hosting the child" calls to mind the image of the non-custodial parent as a mere baby-sitter.

Legislation to Ban Children's Exposure to Second-hand Smoke

Connecticut legislators have introduced a bill that would ban smoking in cars when a minor child is present. The legislation has been proposed by a 9 year-old boy from East Hartford.

While I am in support of children being excluded from second-hand smoke exposure it may leave the door open to other legislation severely limiting an adult's behavior. If passed it means that there will be no stopping to what may be banned around children in the future. Heavy perfume because it might induce allergies or an asthma attack? Chocolate milk and candy because it is lending to obesity in children and juvenile diabetes?

Whoever has responsibility for a minor child should take it upon themselves to communicate with whoever the child is around and discuss these issues. Is legislation needed for common sense items?

Judge Allows House to Be Divided--Literally

Recently a New York divorce Judge ruled that a bickering New York couple may have a dividing wall constructed inside their home as part of an acrimonious divorce. Chana and Simon Taub, both 57, have endured two years of divorce negotiations, but neither is prepared to give up their Brooklyn home. Both feel they are entitled to live in the home and neither are willing to give it up. Despite owning another home two blocks away. Eventually, after negotiations led nowhere, a New York Judge ordered that the partition wall be built inside the house.

The wall divides the ground floor of the house, and keeps husband and wife penned into separate sections on different floors.
One door linking the rival sections of the house is barricaded shut to prevent any accidental contact between the pair.

While this situation is extremely unusual it appears to work, for the time being, for this particular couple. In Iowa a couple may request that real property, usually farm land or other undeveloped parcels of land, to be partitioned as part of a divorce settlement; however, I have yet to find any Iowa authority supporting the New York Judge's decision.

Ontario Court Rules Child Has 3 Parents

Last week, a 5 year-old Ontario, Canada boy became a son to three parents: a father and two mothers. The boy has been raised by his biological mother and her partner but his father has been involved in his upbringing since birth. The partner was given parental status by the Ontario Court of Appeals last week.

The mother's partner said the ruling eliminated the possibility that she could lose any legal relationship to the boy if her partner died suddenly. This case is the latest of a series of legal actions expanding the rights of same-sex couples on Canada.

The Court found that Ontario's family legislation, which dates to 1990, does not reflect current social or reproductive realities and they used the court's general power to act as guardian for minors to grant her request. For the full article click http://www.nytimes.com/2007/01/12/world/americas/12canada.html?ex=1169701200&en=c35e3a1bf9eacb23&ei=5070&emc=eta1

International Adoption Mayhem

"During the two weeks that Marino and Debbie Prozzo welcomed a Ukrainian orphan in their home, they fell head over heels for a 7-year-old child they may never be able to adopt. While the Prozzos were giving Alona Malyovana her first bubble bath, teaching her to use the remote control, and buying her a pink velvet dress trimmed in bunny fur, the chaotic system of adoption in Ukraine was growing more chaotic. The director of Ukraine’s new Department for Adoptions resigned, leaving the fate of the nation’s 90,000 orphans in limbo. A new application process required foreign families to quickly update security clearances and other time-sensitive information. Prospective parents anxiously scanned the State Department’s Web site and bulletins from the embassy in Kiev for clarification of rules and rumors.

Hosting programs, like the one that brought Alona to an American family this Christmas, showcase older children, generally from orphanages in former Soviet bloc nations. The programs have long been hailed as an effective marketing tool by adoption experts, who say 8 of 10 families would not adopt these children without a trial run. In the largely unregulated world of international adoptions, these programs often lead to happily-ever-after, but sometimes end painfully. Ukraine and Russia place formidable obstacles in the path of parents, among them inaccurate information about children’s availability and health status. Multiple families can wind up competing for the same child. And children themselves know they are auditioning for what the industry calls their “forever families.” Then there is an entrenched system of favors — requests for cash or gifts from facilitators, translators, judges and others who handle the mechanics of adoption overseas.

Conditions in both countries have grown so unsettled, some agencies have suspended hosting programs, and the debate is growing about the ratio of risk to reward leaving adoptive parents saying "Now what?" To read the entire article click http://www.nytimes.com/2007/01/13/us/13orphan.html?_r=2&th&emc=th&oref=slogin&oref=slogin

A Good Settlement-Give up 60%

A good settlement is where each side gives up 60%.

The parties in a divorce case should always strive for some form of settlement. It is a rare occasion when a client wins everything s/he wants and is overjoyed that s/he took their case to trial. Especially when kids are involved.

The Courts in central Iowa requires that the parties submit to mediation. And for good reason: Children almost always come out better from a settlement and you avoid seeing one side, or sometimes both sides, devastated by a ruling from a Judge who more than likely doesn't know you. Mediation allows the parties to maintain control over their case and makes the outcome more acceptable and liveable for the parties. Even if the court your case is pending in does not have mandatory mediation the Court will often entertain and grant an application for an Order to Mediate.

If you don't or won't come to an agreement, the judge will for you. And chances are, neither side is going to be happy with the order of the court. Work with your lawyer and your soon-to-be ex-spouse and make every possible effort to settle your case.