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.

Lawyers for James Brown Question Marital State

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

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

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

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

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

Child Born to Lesbian Couple Will Have 2 Mothers Listed

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

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

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

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

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?

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.