Iowa Family Law Blog

Divorce and the Economy

2008-07-10T20:40:00.003-05:00

I was home Tuesday morning waiting for a repairman when I caught the "Today" show on NBC. One of the speakers was a prominent divorce attorney discussing the state of divorce these days, especially given the economy. The other issue was use of electronic evidence during a divorce especially when child custody is an issue.

The conclusion was that the economy has a temporary affect on the divorce rate. Tough economic times tend to make people stick together. Isn't it always easier to support one household on two incomes rather than two households on two incomes? The divorce rate is likely to emerge from stagnation once the market begins doing better.

As for electronic evidence, the program focused on the Christie Brinkley divorce trial. As you may know, Brinkley's attorneys are using her husband's past behavior, which includes visits to pornographic websites, to argue he is an unfit custodian.

While using such evidence is not new, it still often goes unnoticed . . . . or unrecognized by those engaging in such behavior.

New Attorney Joins Sullivan & Ward, PC

2008-06-04T13:33:00.002-05:00

I am pleased to announce that Samantha Kain has joined our law firm. Samantha graduated from Drake Law School in December 2003 and brings a wealth of knowledge to Sullivan & Ward's practice areas. Samantha has experience in handling family law matters, criminal defense, estate planning and real estate transactions.

Samantha's direct dial is (515) 247-4711.

Job Perks A Marital Asset?

2008-05-28T20:35:00.001-05:00

New Jersey's former governor, James McGreevey and his wife Dina Matos McGreevey are in the middle of a divorce. Some of you might recall that Former Gov. McGreevey announced several years ago during his term that he is a "gay American" resulting in the unraveling of his marriage. Although only married since 2000, Matos McGreevey is seeking alimony. The issue in today's hearing was not whether she is entitled to alimony but whether she is deserving of compensation for losing out on perks of her husband's job — state police transportation and a 24/7 security detail, a household staff and use of two beach houses — because he resigned 13 months shy of completing his first term.

McGreevey maintains that perks of the governor's office are not a marital asset.

In Iowa, one's job perks can be considered as a factor in determining (upward deviation from guideline amount) child support or alimony by looking at the cash value or the savings to the receiving party. Perks I have run across usually include paid cell phone, car allowance, gasoline, and country club memberships - not state security and use of summer rental homes. The McGreevey case is interesting because it involves perks that would have come to fruition if Gov. McGreevey served his entire term; they are not perks he currently receives.

Luckily the couple agreed on the important stuff ahead of time: custody of their 6 year-old daughter; however, the agreement remains sealed.

Stability Helps Children of Divorce

2008-05-13T20:39:00.000-05:00

I just finished up a modification trial today regarding child custody. As an attorney, I strive not only to represent my client but when the case involves the children, my duty also includes thinking about how the outcome could affect them as well. A recent article on Newswise and included in the Journal on Marriage and Family reported that for children of divorce, what happens after their parents split up may be just as important to their long-term well-being as the divorce itself.

A new study found that children who lived in unstable family situations after their parents divorced fared much worse as adults on a variety of measures compared to children who had stable post-divorce family situations. “For many children with divorced parents, particularly young ones, the divorce does not mark the end of family structure changes – it marks the beginning,” said Yongmin Sun, co-author of the study and associate professor of sociology at Ohio State University’s Mansfield campus. “A stable family situation after divorce does not erase the negative effects of a divorce, but children in this situation fare much better than do those who experience chronic instability”

The study compared children who grew up in three different situations including children who grew up in married households, children whose parents divorced before the study began but lived in a stable home, and children whose family situation changed once or twice during teen years.

Results showed that young adults who grew up in stable post-divorce families had similar chances of attending college and living in poverty compared to those from always married families. But they fared less well on measures of the highest degree obtained, occupational prestige and income. However, those who lived in unstable family situations after their parents divorced did worse on all measures. In fact, they fared more than twice as poorly on most measures compared to their peers who had stable family situations.

This study found that for those in stable post-divorce families, the difference in adult well-being was mostly due to a shortage of economic and social resources. Compared to always-married parents, divorced parents had a lower level of income, didn’t talk to their children as much about school-related matters, had fewer interactions with other parents, and moved their children to new schools more often.

These findings provide a clear message to parents: minimize disruption during a divorce and after.

When S/he Won't Pay

2008-04-30T20:29:00.000-05:00

On May 20, 2008 a man from central Florida will stand in front of a Judge and possibly be sentenced to five years in prison for failing to pay hundred of thousands of dollars in child support. Robert Abraham, age 65, pleaded guilty in mid-March to failing to pay $651,000 in child support for his three children. The charges marks the first time anyone in his county of residence has been charged with a felony for neglecting to make child support payments.

Often custodial parents face the same ordeal, although owing hundred of thousands of dollars is rare. In Iowa, the custodial parent can bring a contempt action in court for non-payment and each missed monthly payment may be the basis for individual counts of contempt. If the non-custodial parent has missed many months, the counts can add up (26 counts in a case I handled last year). The court can employ many remedies which are set out in the Iowa Code including forcing the non-custodial parent to post bond equal to months of future-owed payments, fines and jail time - up to 30 days for each finding of contempt.

Abraham further demonstrated his lack of intelligence when he declined to settle his $651,000 child support debt for $200,000.

Striking Back

2008-04-18T07:44:00.000-05:00

Apparently there is now YouTube Divorce. In an effort to have the last salvo, Tricia Walsh-Smith (an actress and playwriter), posted a YouTube video in which she lashes out against her prominent soon-to-be-ex-husband, Philip Smith, president of Shubert Organization (the largest theater owner on Broadway). She spills intimate details of their marriage in an effort to leave a lasting imprint of humiliation.

Ms. Smith goes through their wedding album on camera, describing family members as "bad" or "evil" or "nasty," and talks about how her husband is allegedly trying to evict her from their luxury apartment. She also makes embarrassing claims regarding their intimate life, and then calls his office on camera to repeat those claims to a stunned assistant. Part of Ms. Smith's anger arises from a prenuptial agreement she signed. While the terms and conditions were not disclosed, one can assume from her behavior that she will get little, if anything, from her divorce.

This behavior teaches us two things: first, always have an attorney review any prenuptial (or antenuptial agreement for that matter) with you before you sign. While love is blind, money is not. Second, Ms. Smith's behavior, although envied by many who have gone through tumultuous divorces, may not sit well with a judge. Judges make decisions partly on a person's judgment. If Ms. Smith challenges the validity of the prenup, her recent YouTube escapade may have some impact on the ruling, especially her credibility.

Post-divorce Dating Jitters

2008-04-06T20:52:00.000-05:00

MSN.com featured an article today, in first person might I add, about post-divorce dating jitters. Like most people, the author never thought she would find herself single again and on the "singles market." The article provides a real humanistic view toward the dating-again-phenomena going through self-doubts and anxiety.

I can't count on one hand how many clients during a divorce proceeding or immediately after it is finalized state "I will never marry again" or "no one will want me." The article teaches the reader that a little confidence tossed together with humility and humor results in a surprisingly pleasant experience.

Double Proxy Marriage

2008-03-26T06:01:00.000-05:00

Ever wanted to get married but didn't want to attend the marriage ceremony? Think about moving to Montana where a double proxy wedding is permissible. The New York Times recently posted an article stating that Montana is the only state that allows a double-proxy wedding - that is - allowing a stranger (or acquaintance) stand up for both the bride and groom and enter into a civil marriage contract. Thus, the presence of neither the bride or groom is required.

This is common when both parties are in the military and stationed in different parts of the country. And it takes about all but a minute. The cost to the real bride and groom: $900, $50 apiece to the proxies, $100 to the judge, $150 to the lawyer (and witness); $53 for court fees; $14 for two certified copies of the marriage certificate; and the rest to a Pennsylvania couple who run a business facilitating proxy marriages.

Last year, the Montana State Legislature amended the law to require that one party in a double-proxy marriage be either a Montana resident or a member of the armed forces on active duty; however, the article noted that these Montana marriages are recognized in every state but Iowa.

Now if there could only be divorce by proxy. . . .

Money and Divorce

2008-03-20T10:42:00.000-05:00

The Money Team at the Des Moines Register recently posted an answer to the following question:

Q: “I am about to get divorced after 25 years of being a wife and stay-at-home mom with no involvement in finances. I’ll get the house and a decent retirement fund, but I don’t even know where to start. Any advice?”

This is an extremely common question when individuals, after a long-term marriage, divorce. The Money Team gives sound advice: Look at a few basic financial areas: cash flow, short-term savings, retirement planning and asset protection. Understanding what money is coming in and going out can make a bigger difference in your lifestyle than what you received in the divorce.

I suggest that anyone going through a divorce take a look at this article. Scheduling an appointment with a financial planner as well as an attorney versed in Wills, Trusts and other testamentary instruments is also advisable especially if you had little involvement in family finances during the marriage. You may need some guidance to get through the rough beginning but a clear understanding of finances can make the long road easier.

Hiding Assets

2008-03-19T09:21:00.000-05:00

Honesty may be the best policy for a successful marriage. But when it comes to divorce, couples are becoming increasingly devious in concealing their wealth from each other reports the Pennsylvania Family Law Blog.

One fifth of couples who divorced last year tried to conceal their assets or income from their spouse - a figure which has doubled since 2006 - a report has found. The study - by the accounting firm Grant Thornton, which surveyed 100 family lawyers - found that husbands were much more dishonest when a marriage crumbled.

In cases where assets had been hidden, 88 per cent involved men concealing wealth from their wives. Just two per cent involved women hiding assets. In the remainder of cases, both partners tried to conceal wealth from one another.

Family law experts say a spate of expensive, high-profile divorce cases, such as that of Sir Paul McCartney and his wife, Heather Mills McCartney, is spurring couples to hide their wealth from each other.

Andrea McLaren, the head of Grant Thornton’s matrimonial practice, said: ‘The number of couples hiding assets from one another has increased by 100 per cent since last year, which is staggering. Supposedly, men are seeing terrifying huge divorce settlements which are compelling them to hide assets.

In Iowa, you must, unless waived by court order, disclose all assets on an affidavit of financial status. While the affidavit is signed under oath, it does not guaranty full disclosure. Make sure you keep track of all marital and nonmarital assets during a marriage: this does not mean you are necessarily eyeing a divorce, but it is helpful when your spouse gets sick or passes away and is unable to carrying on his/her financial affairs.

Things Not to Do During Divorce

2008-03-07T06:40:00.000-06:00

The Oregon Divorce Blog recently published a good post about what NOT to do during divorce. It points out that many pitfalls and traps await parties who are unfamiliar with the process noting that people often make bad decisions under stress, or without the guidance of an experienced lawyer and fail to educate themselves.

I agree, that by avoiding the following 10 pitfalls, you may get a better result. During your divorce, you should NOT:

1. Lie to your lawyer.

2. Lie to the court.

3. Involve the kids in the process.

4. Hide or fail to produce documents.

5. Refuse to cooperate with a court appointed expert.

6. Settle without analyzing your case.

7. Fail to try to resolve the case outside of court.

8. Take out your stress in unhealthy ways.

9. Be economically irrational in negotiations.

10. Be your own lawyer if your case is contested and your spouse is represented.

To read an explanation as to why you should avoid these pitfalls, click on the above-link.

London is Divorce Capital

2008-02-25T07:09:00.000-06:00

Extramarital affairs are cited as the most common reason for divorce in the UK and Wales, accounting for 29 per cent of break ups, a survey revealed on Monday. "Mid-life" crisis are reportedly blamed for this increase. Family strains were reportedly the third most common cause of marital break-up.

Apparently Brits are hiring private investigators to trail suspicious spouses and go to great lengths to find out the truth, even though it hurts.

Sir Mark Potter, president of high court's family division, acknowledged that London has become "the divorce capital of the world."

Divorce & Your E-mail Inbox

2008-02-15T07:51:00.000-06:00

USA Today published an article in yesterday's edition (2/14/08) about electronic messages promulgating a divorce or at least, being used as evidence. According to the article, about 88% of American Academy of Matrimonial Lawyers say they've seen an increase in the number of divorce cases using electronic data as evidence during the past 5 years. The evidence is being used to catch people in the midst of affairs and hiding assets, such as buildings, to avoid having to divide the same pursuant to a divorce proceeding.

Lawyers are also looking at MySpace and Facebook pages as well as electronic calendars and other computerized data. Also, spouses are "email snooping," that is, looking at a spouse's private email and text messages. Look at what happened to Detroit Mayor Kwame Kilpatrick--he and a former chief of staff are under investigation after a newspaper revealed contents of their text messages on city-issued paging devices.

The article notes that electronic evidence probably has not led to more divorces but makes evidence gathering easier. The upshot is: be a sleuth if you believe funny stuff is going on; be discreet if you are doing the funny stuff.

I Didn't Get My Child Support This Month!

2008-02-14T07:40:00.000-06:00

The Iowa Court of Appeals recently reviewed what remedies are available when a parent fails to pay child support. In John Martin Farrell v. Iowa District Court for Polk County, the Iowa Court of Appeals annuled the district court's finding that a father was in default for failing to pay extracurricular activities but sustained a finding of contempt.

A parent refusing to pay child support or other support such as extracurricular activities (when required by the decree) is a common occurrence. In its decision, the Farrell court outlined the difference between "contempt" and "default." If a parent "willfully" fails to pay child support on time there is a good chance s/he will be found in contempt--or willful noncompliance with a court order. There are defenses to a charge of nonpayment of support as outlined in the Farrell ruling.

A court can also find that although the payor's behavior wasn't willful, s/he nonetheless contravened the decree and issue a finding of default, or a technical violation. Either way, both of these may be viable options if a parent fails to pay support in a timely fashion.

Full Disclosure Required in Prenuptial Agreements

2008-02-06T07:19:00.000-06:00

Steve Worrall, who maintains the Georgia Family Law Blog, recently wrote about a unanimous opinion written by the Georgia Supreme Court's Chief Justice in Blige v. Blige, S07F1817. This case holds that the trial court did not abuse discretion in setting aside the parties’ prenuptial agreement, since the evidence supported the trial court’s finding that the husband failed to make a full and fair disclosure of his assets, income and liabilities prior to execution of the agreement.

The parties did not live together before the marriage and the husband actively hid the fact that he had $150K in cash in his possession when the parties signed the agreement.

In Iowa, prenuptial agreements are generally upheld; however, like the Georgia Supreme Court emphasized, there must be written disclosure of the parties' full financial picture prior to execution. In addition, to increase the legitimacy of a prenuptial agreement, it should be entered into well-before the big wedding day. For other tips contact a family law attorney.

Choosing Sides in Split Ups

2008-01-31T18:59:00.000-06:00

What is your role as a friend when a close couple-friend breaks up or divorces? CNN.com ran an article today addressing this problem, primarily in the boyfriend/girlfriend break-up scenario. However, much of the advice applies to divorcing couples.

What should you do when you're friends with both parties? Where should your loyalties lie, and how can you avoid alienating either member of the couple? Sometimes distancing yourself from one or both until tension eases is a good solution. Sometimes buying the first round of drinks for the first-in line-first in time (a/k/a "I knew you first") friend is the trick. Whatever route you take, remember if there are children involved keep them protected. Make sure that any discussions regarding the other spouse/party is done outside the earshot (preferrably home) of the children.

Mediation: Good for the Family

2008-01-29T07:13:00.000-06:00

In Polk County Iowa all litigants in family court, which include divorcing couples and couples in the middle of paternity, custody and support cases, must submit to mediation (unless they are able to resolve their case prior to the mediation deadline). In outlying counties either party may request mediation. Luckily, in Iowa, there are many excellent and experienced family law mediators.

In divorce and other family law mediations, a neutral facilitator will help you and your spouse (significant other) discuss needs and wants. The goal is to reach a mutually acceptable agreement without going to trial. The process is confidential. The majority of time the mediator is an attorney; however, effective mediators have other diverse backgrounds as well.

I am a huge advocate of mediation for the following reasons: Mediation is usually less expensive than a trial, preferred by judges, more satisfactory to the parties and fosters higher compliance. Most importantly, it allows both parties to retain control over case outcome.

Divorce and Credit Score

2008-01-23T09:35:00.001-06:00

Daniel Clement, a NY divorce lawyer, recently published a good article on preserving your credit rating during a divorce. He reminds divorcing spouses that apportioning joint liability is not binding on a creditor; a creditor can attempt to collect the debt from either or both parties. Missed payments can have a deleteriuos affect on your credit score for years.

If you know a divorce is imminent, it may be wise to take action, as suggested by Mr. Clement, at least six months to a year before filing. This way, if and when problems start rearing their head, many issues will have already been resolved.

Bringing Children Around New Relationships

2008-01-22T14:40:00.000-06:00

Recently, J. Benjamin Stevens, an attorney with the South Carolina firm of Stevens MacPhail posted a good blog on dating after divorce. Like Mr. Stevens points out, many of my divorce clients ask whether they can allow their child around a new boyfriend/girlfriend following a divorce.

While you may meet resistance from your new ex-spouse, having your child around a new girlfriend/boyfriend is permissible so long as s/he acts appropriately, doesn't have something in his/her past (such as a recent child abuse conviction) that is inappropriate, and the new person isn't there overnight. However, with respect to the latter, this may be more applicable in a new relationship before the child has time to adjust to the divorce and the parent's new relationship. There comes a point when overnights typically occur however, discretion and consideration for the child's feelings should be paramount.

Palimony - Cohabitants Not Entitled to Support

2008-01-14T11:35:00.000-06:00

Once in a while an unmarried client meets with me to discuss whether s/he is entitled to the equivalent of alimony because of a recently ended long-term relationship. Often times the person invested in the family home, yet his/her name doesn't appear on its title, purchased furnishings, vehicles and other necessities to allow both parties an enjoyable lifestyle.

However, unlike New Jersey, where the New Jersey Court of Appeals Court recently issued a ruling awarding substantial palimony to a New Jersey woman, Iowa does not recognize such relief.

However, Iowa does recognize common law marriage (although the burden of proof is pretty tough). The fact pattern outlined in the New Jersey case may have been enough for an Iowa Court to find a common law marriage existed. The results are on a case-by-case basis.

Nonetheless, other remedies may be available to an Iowa resident in a similar fact pattern. Consult with your local family law practitioner to explore possibilities.

Divorce & Health Insurance

2008-01-06T20:47:00.000-06:00

In this day and age one of the top concerns of divorcing spouses is health insurance coverage. Typically, one spouse carries the coverage making the other spouse dependent on the coverage. Since most employer-sponsored health coverage plans define a divorce as a "qualifying event" terminating coverage for the none-employee spouse, this is truly a concern.

Several options exists. First, the non-employee divorcing spouse should have 36 months of COBRA coverage available to him or her. This comes at a price though and the employer can assess the full cost of coverage, not just what the employee pays (which is usually subsidized by the employer) against the non-employee.

The other option is to ask the covered spouse to pay for COBRA coverage or pay a certain amount each month to cover the premiums. There are other options but these are the most common solutions. The Iowa Court of Appeals recently endorsed the aforementioned.

Other options exist. Contact a divorce attorney well-acquainted with Iowa divorce law.

Children Coping with Divorce

2007-12-04T20:53:00.000-06:00

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

2007-11-20T21:06:00.000-06:00

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

2007-11-18T08:08:00.000-06:00

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

2007-10-29T06:35:00.000-05:00

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

2007-10-10T08:07:00.000-05:00

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

2007-10-04T12:42:00.000-05:00

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

2007-09-18T19:24:00.000-05:00

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

2007-09-01T20:31:00.000-05:00

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....

2007-08-27T20:36:00.000-05:00

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

2007-08-10T07:09:00.000-05:00

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

2007-07-20T11:45:00.000-05:00

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

2007-06-20T15:00:00.000-05:00

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?

2007-05-30T06:53:00.000-05:00

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

2007-05-09T20:09:00.000-05:00

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

2007-04-30T14:30:00.000-05:00

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?

2007-04-16T21:08:00.000-05:00

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

2007-04-08T19:53:00.000-05:00

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

2007-03-27T08:59:00.000-05:00

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

2007-03-22T07:49:00.000-05:00

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

2007-03-19T07:33:00.000-05:00

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

2007-02-28T14:41:00.000-06:00

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

2007-02-09T09:32:00.000-06:00

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

2007-01-25T19:50:00.000-06:00

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

2007-01-18T07:41:00.000-06:00

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

2007-01-16T14:40:00.000-06:00

"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%

2007-01-08T20:07:00.000-06:00

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.

Lawyers for James Brown Question Marital State

2006-12-28T07:42:00.000-06:00

The late soul singer James Brown's lawyer said Tuesday the fact that the woman who'd been described as the late singer's wife was locked out of his South Carolina home after his death is "not a reflection on her as an individual." Instead, the lawyer said that Brown and Tomi Rae Hynie were in fact not legally married and that she was locked out for estate legal reasons.

Brown's attorney contends that Hynie was already married to another man in 2001 when she married Brown, making her marriage to Brown null. He said she later annulled the previous marriage, but she and Brown never remarried. However, Hynie told The Associated Press on Tuesday that she believes Brown's representatives are trying to discredit her so Brown's estate doesn't have to be shared with her. Link to article http://www.theindychannel.com/entertainment/10611217/detail.html

Court Says Christmas Card is Enough

2006-12-27T08:26:00.000-06:00

An Ohio Court of Appeals held this past week that, even though a father's sole contact with his child during the year was a Christmas card and a gift card, this was sufficient contact to require the father's consent to the child's step-father's petition to adopt the child.

For the full opinion see http://www.sconet.state.oh.us/rod/newpdf/12/2006/2006-ohio-6705.pdf

China Tightens Adoption Rules

2006-12-22T13:40:00.000-06:00

China is planning to issue new, tighter restrictions on foreign adoptions of Chinese children. The restrictions prohibit adoptions by parents who are unmarried, obese or who are older than 50.

The new regulations are to take effect May 1, 2007 and are anticipated to slow the rapid rise in applications by foreign parents to adopt Chinese babies. Chinese officials report that applications had begun to exceed the number of available babies, and that the new rules were partly intended to address that imbalance.

Few Aiding Children in Deportation Proceedings

2006-12-06T07:01:00.001-06:00

The New York Times published an article late last week that takes a startling look at children in deportation proceedings. Often, these children are here without a mother, father or other relative who can act as their guardian. They have little English skills and little information as to whether they want to fight deportation or even what deportation is. Most don't have attorneys.

A look at America's immigration courts show a system where many children lack legal representation, where judges find themselves having to explain the law to a 12 year-old through a translator, and where the government itself has no real measure of the problem.

There is a larger issue. Advocates worry about child trafficking, smuggling and abuse because these children do not know how to ask for help or know what resources are available to them to address these problems. This is a growing problem that needs to be addressed to ensure that children, whether here legally or not, have their interests represented.

To see the complete article visit

Few Aiding Children in Deportation Proceedings

2006-12-06T07:01:00.000-06:00

Child Born to Lesbian Couple Will Have 2 Mothers Listed

2006-11-22T07:54:00.000-06:00

A lesbian couple in South Jersey won court approval this week to have both of their names listed as parents on the birth certificate of their newborn, and the attorney general’s office said it will no longer oppose such applications. The decision, in Family Court in Burlington County, stems from an Oct. 25 ruling by the New Jersey Supreme Court holding that same-sex couples are entitled to the same legal rights and protections as heterosexual couples. The court gave the Legislature 180 days either to bring gay couples within the state’s marriage laws or establish a parallel system of civil unions. The couple now do not have to go through the adoption process to establish full parental rights for both. By Laura Mansnerus, N.Y. Times Link to Article)

Study: Divorce Hurts Rural Women

2006-11-15T20:29:00.000-06:00

The Des Moines Register and MSN.com published an article this week about Iowa State University researcher's conclusions regarding the effects divorce has on rural women. The study, spanning 10 years, focused on what happens to rural women's health after the end of a marriage compared with women who stayed married. The study concluded that while the act of getting divorced produced no immediate physical effects on health it did effect on mental health. However, ten years later, those effects on mental health led to effects in physical health.

The study added that divorced women, especially in rural areas, have poor job opportunities and fewer support systems therefore contributing to women's declining health. Often, the only job opportunities offered to divorced women have poor health care plans or quality health care is inaccessible due to their geographical location. To read the full article check out the following: http://www.msnbc.msn.com/id/15498876/

Helping Children Through a Divorce

2006-11-10T06:39:00.000-06:00

Now that the holidays are looming in the horizon, and the probability of having family gatherings is more likely, relatives should be particularly aware of their behavior around children of divorcing parents.

Here is my list of the top 10 ways to help grandchildren, nieces, nephews, cousins and other kids experiencing divorcing parents through the holidays:

1. Don't disparage your soon-to-be ex-relative in front of the children.

2. Help create positive memories during holiday events and keep up on traditions.

3. Be a good listener.

4. Set up your expectations for their behavior before they arrive.

5. Become the unbiased, non-judgment confidant.

6. Don't sabotage agreements set up by either parent.

7. Let your relative little ones know that what they are feeling is okay.

8. Focus on the positive.

9. Share your spiritual beliefs in a non-judgmental way.

10. Read together and/or find quiet special time with them.

What other rules do you observe? Email me at jjaskolka@sullivan-ward.com

Judge Rules No Circumcision for 9 Year-Old

2006-10-30T20:03:00.000-06:00

A Chicago Judge recently sided with a divorced man who did not want his 9 year-old son to undergo a circumcision procedure. Circuit Judge Jordan Kaplan said that it was an "extraordinary medical procedure" for a 9 year-old and the boy can decide for himself when he reaches age 18.

The father sued to block the operation in a dispute with his ex-wife. The couple's 2003 divorce decree stated that he had to be consulted before the child underwent any "extraordinary" non-emergency procedure which is language typical of legal custody.

This case is an example of the power that a legal custodian can wield even if s/he doesn't have physical custody. Make sure that your divorce or paternity decree clearly spells out each party's legal (and physical) custodial rights. Typically there is case law or statutory language that can be incorporated to ensure that both parties have a clear understanding of what rights they are entitled to and what is expected of them.

Re-dating: The Second Time Around

2006-10-19T20:06:00.000-05:00

In the past several years I have seen an increase in couples who are on their second or third marriages--to each other. Are these people doomed for another friction-filled love disaster? Or is it fate, a soul-mate relationship, that reunites them?

Recently, MSN published an article asserting that two types of duos are most like to reconvene successfully: (1) relationships that ended amicably due to such things a youthful inexperience but the parties remain in touch through the years, or (2) the twosome that lost touch long ago but after an impromptu rendezvous they discover the flame is still sparking.

In either case, a replay works best when it is a natural process and not one of desperation, out of loneliness or "for the sake of the children." Evaluate where you are in life before taking a second go-around.

Can I Stop it?

2006-10-08T19:08:00.000-05:00

Several Iowa clients have asked me recently "Can I stop the divorce" or "can s/he stop the divorce?" A short and brutal answer is "no," at least in Iowa. You (or your spouse) may of course employ delay tactics like asking for continuances or asking for an order requiring reconciliation like marriage counseling but unless both parties are committed to truly working on the marriage, using these tactics usually only result in more hurt and cost.

So what choices do you have? You both can choose to remain in the marriage which for some, is better than dealing with the pain, expense and disruption of divorce. You can live in a so-called "parallel marriage" which turns into a marriage of companionship and pleasantries. This probably more common than you think and especially prevalent when one spouse needs medical insurance coverage or both know they cannot maintain a reasonable lifestyle without the other's contribution.

Another option is to enter into a separation agreement which is as close to a divorce as one comes without taking the plunge.

To discuss these options and other contact a family law attorney.

British Study: Divorce Makes Men Richer

2006-09-30T21:26:00.000-05:00

I recently ran across an article published by British researcher Cecile Bourreau Dubois that concludes men who stay married invariably end up poorer than those who leave their spouse or live-in partner. Ms. Dubois based her results on interviews with more than 75,000 adults in 11 different European Union countries.

Assuming the woman is awarded custody, the study found that a man's wage will increase ahead of inflation with support payments quickly falling behind. The support payments become less and less consequential because of a man's earning capacity.

What do you think? Do men fare better in a divorce than women?

College Savings With Less Worry

2006-09-22T14:15:00.000-05:00

Many parents intend to contribute toward their child's college education whether court-ordered or not. Last month President Bush signed the Pension Protection Act. Although the law mainly deals with strengthening the financing rules for defined-benefit pension plans, it also quietly eliminated the 2010 sunset provision for tax-free withdrawals from popular Section 529 college tuition savings plans.

Created in 1996, 529 plans allow after-tax income to be invested in state-sponsored plans and to grow free of state and federal taxes so long as the money is used for qualified college expenses. The tax-free character was set to expire in 2010 but worries have been eleviated by recent action.

With the tax risk eliminated, more parents are likley to invest greater sums in 529 plans and may have more options to choose from. Given that many states have a statutory provision permitting either parent to seek post-secondary education contributions for a child subject to a divorce, it may be wise for either or both parents to start investing in a 529 plan or other tax-free education plan early on to avoid a substantial bill when the child reaches age 18.

Grandparent Visitation Gaining Ground

2006-09-14T07:00:00.000-05:00

Six years ago the U.S. Supreme Court curbed grandparents' rights in child-visitation disputes stating that it interfered with the parent(s)' right to make decisions for their child. Three recent rulings by state supreme courts suggest that those who go to court seeking more time with their grandchildren are gaining legal reception.

The recent rulings in Pennsylvania, Utah and Colorado in favor of grandparents who sought visitation despite the objections of the child's parent indicate that the courts increasingly are sympthazing with grandparents, especially in the case of a death of a parent or a family tragedy. In the three aforementioned cases, either one or both of the child's parents had died and the child had already established a relationship with his/her grandparents.

Grandparent visitation laws vary state-to-state. Check with a local attorney to see whether your state currently recognizes grandparents' rights.

Telephones: Misleading Privacy

2006-09-04T21:03:00.000-05:00

With recent events surrounding the government's ability to snoop it is not surprising that American's are confused about their privacy rights.

Legal experts say there is enough gray areas and conflicting laws to baffle even the best informed. Two recent events demonstrate this: In December 2005 the NY Times revealed that the National Security Administration was conducting warrantless surveillance of Americans' international phone calls. Second, in May 2006 USA Today reported that several phone carriers had turned over to NSA massive databases of customers' domestic phone records.

Americans' privacy is grounded in the Fourth Amendment and its ban on "unreasonable search and seizure." But subsequent legislation expanded, clarified and made exceptions when it came to telephone conversations. The U.S Supreme Court has since rendered decisions that chip away at an individual's expectation of privacy.

How does this relate to divorce and family law issues? Many states allow one party to a conversation, without the other's knowledge or consent, to record phone conversations. The ability varies from state to state and you should check with your local practitioner to ask whether recordings are legally permitted by your state and admissible as evidence. Thus, it is especially important that you maintain composure and etiquette during phone conversations with your spouse or other litigant.

The bottom line: Bite your tongue.

Making Two Homes Harmonious

2006-08-27T08:12:00.000-05:00

You and your spouse have separated or the divorce has been finalized. Just because there are now two households doesn't mean that your child should experience two separate and inconsistent lives. You and your ex-spouse (or soon-to-be) may be polar opposites but that doesn't mean that your child cannot experience consistency.

Children do better when there is predictability to their routine. In a best-case scenario, there is inter-home consistency and coordination regarding schedules, expectations, and rules. If uniformity is not a realistic possibility, make sure at a minimum that each separate home is consistent within itself.

Areas to create routine, ritual and consistency include:

1. Bedtime
2. Mealtime
3. Medication time
4. Bathtime
5. TV and internet rules
6. Homework rules
7. Methods of discipline

Many times parents express a hesitancy to enforce rules because they feel guilty about the effects of the divorce on their child. However, consistency helps a child understand that things will remain the same despite the parents no longer being in one household. However, always be on the lookout for the signs and symptoms that signal a child needs help dealing with the divorce and seek help if needed.

This blog is provided for general purposes only. You are cautioned not to attempt to solve your individual legal problems upon the basis of the information contained herein because slight changes in factual situations and laws may require a material variance in the applicable advice.

How to Talk to Your Child About Divorce

2006-08-22T08:32:00.000-05:00

I recently discovered a good article that addresses speaking to your child (or children) about divorce. Please click here for the article on talking to child about this subject.

Money Doesn't Equate to Happiness

2006-08-10T20:31:00.000-05:00

Many states have enacted post-secondary education provisions requiring divorced parents to pay for a portion of their children's post-high school education so long as certain conditions are met. While many parents want their children to pursue degrees that result in high starting salaries (MSN just reported that chemical, electrical and computer engineers are ranked first in starting salaries for a 4-year degree program), children and parents have to realize that starting salaries don't tell the whole story.

Career satisfaction is key. If your child likes what s/he spends the day doing, they are more likely to succeed and advance at their jobs. This could lead to faster advancement in their career even if starting salary is low. Conversely, if they pursue a major and a career track solely for the money, they may be headed for trouble.

While both parents should have some involvement in their child's post-secondary education degree choices, they should also realize that focusing only on "big money" may, in the end be counter productive. Besides, most successful people often do not work in the field they studied.

How to Choose the Best Lawyer for You

2006-08-06T07:18:00.000-05:00

If you are like most, before purchasing a home you probably followed these traditions: spoke to your realtor or others regarding the home's neighborhood, checked out the district's school system, looked at other homes as a comparison, and compared prices of other homes to make sure you are getting the best possible deal. When you go through a divorce or any family law situation it is equally important to surround yourself with individuals who offer the services you need.

Some of the most common ways to get the name of a family law attorney is to speak to your friends, therapist/counselor, and clergy. Another common way is through another attorney. If you already have a business lawyer or a lawyer who drew up your Will, you may want to ask his/her for a recommendation. Your local bar association might also have names of attorneys who do family law work. Some lawyers are certified in specific areas or are members of a particular Bar Association's practice area (for example, "Family Law"). Take advantage of lawyers who provide a consultation at a low fee or for free and you might find one that meets your criteria.

When you meet with the attorney you should be told briefly how the laws in your state work and what that will mean for your own case. Can the attorney tell you if your court system is backlogged or whether there are specific judges assigned to handle family law matters? If so, this might give you insight to how quickly your case will be decided. A lawyer who knows the judges and their individual biases and personalities may also give you some insight to get ahead of the game. For example, some judges may have a bias against spouses who have extramarital affairs and may perceive the other spouse as a victim automatically awarding him/her custody or more property. A savvy attorney who has been around may be able to maneuver around issues more than someone new to the field or area.

During the first consultation, the lawyer should explain his/her fees. Does she require a retainer (a common practice) or does he bill monthly? Whatever the arrangement, determine the details now and make sure they are included in the fee agreement.

Look at legal styles. There are many different legal styles as there are attorneys. Some attorneys are tough and aggressive and give you an immediate feeling of confidence or dislike, depending on your perspective. Others seem too nice or soft-spoken. You need to choose a legal style that makes you comfortable and empowered and is on your wavelength.

After you have decided who will represent you, a reputable lawyer will send you his or his written fee agreement and give you time to ask questions and sign it. If a lawyer demands that you retain him/her without giving you a chance to think it over, look for another lawyer.

The upshot is you should retain counsel that shares your goals and will work well with your personality.

This blog is provided for general purposes only. You are cautioned not to attempt to solve your individual legal problems upon the basis of the information contained herein because slight changes in factual situations and laws may require a material variance in the applicable advice.

Impact of Significant Others in Custody Battles

2006-07-28T08:01:00.000-05:00

The Iowa Court of Appeals' recent decision in Moraine v. Fogwell, published July 26, 2006, demonstrates the impact that a custodial parent's relationship with a significant other can have on a custody determination.

Both parents in Moraine v. Fogwell sought physical custody of three year-old Abigail. Both had comparable educations and full-time employment. The mother also worked a part-time job in addition to her full-time employment and was attending the local area community college to advance her education.

The father resided with his grandmother for most of his life and, at the time of trial, the mother resided with her boyfriend Justin. Justin was still married (albeit, in the middle of a divorce) but had committed acts which weighed in on the court's decision. These include pleading guilty to fraud charges, failing drug tests, failing to comply with terms of his probation, and commiting domestic abuse during an argument with his wife.

The Iowa court's consideration is always the child's best interest. The court concluded that although Abigail had a significant bond with both parents, the custody evaluator's recommendation that Abigail be placed with her father coupled with the above-noted facts and the father's demonstrated commitment to his daughter (he attended parenting classes and improved communication with Abigail's mother)supported the trial court's award of physical custody of the father.

The lesson to be learned: be careful of who you date and follow your attorney's recommendations to strengthen your case.

Child Custody--Mine, Yours (Ours)

2006-07-23T07:32:00.000-05:00

Custody and visitation are fighting words. While lawyers and judges are now casting aside the term "visitation" for the less confrontational term "parenting time" (what parents wants to "visit" their child?), the issues are the same.

Any attorney you hire should emphasize the needs and interests of the children, not the rights of the parents. This includes children as young as infants. Gone are the days when experts and court systems believed that a non-custodial parent should be away from his/her primary care-taker for only a few hours. The antiquated approach prevented courts from allowing a father (or mother) to spend overnights with young children essentially stating that a father's rights were less important than the child's need for an undisturbed bonding experience with Mom. Luckily, Iowa Courts have re-evaluated this position and are more apt to entertain requests for joint physical custody.

"Custody" consists of both legal and physical custody. Generally speaking, "legal custody" refers to major decision making such as medical, educational and religious matters while physical custody refers to residence and primary parenting responsibilities. Custody can be shared (joint cusotdy) or delegated to one parent (sole custody). Since each family situation is different, custody arrangements differ as well. Therefore, it is important to consult with your attorney to assess your situation from both a practical and legal perspective to determine what custody arrangement is most appropriate for you.

This blog is provided for general purposes only. You are cautioned not to attempt to solve your individual legal problems upon the basis of the information contained herein because slight changes in factual situations may require a material variance in the applicable advice.

Jennifer Jaskolka-Brown Starts Iowa Family Law Blog

2006-07-21T12:30:00.000-05:00

Jennifer Jaskolka Brown starts Iowa Family Law Blog

Jennifer Jaskolka-Brown is a shareholder with Sullivan & Ward, P.C., a law firm located in West Des Moines, Iowa. She maintains a general practice which includes an emphasis on family law and litigation.