Posted by DivorceLine in Iowa Divorce Procedures
Complete overview of Iowa divorce laws for people considering an Iowa divorce or filing an Iowa divorce with issues to be resolved about child custody, child support, visitation and alimony.
Iowa Divorce Residency Requirements
In order to file your Petition for Dissolution of Marriage in Iowa, you must make sure the District Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Iowa residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:
There is a 1 year residency requirement for all spouses filing in the state, unless the plaintiff in the case is not a resident, then he or she does not have a residency requirement in order to file for a dissolution of marriage.
The parties shall file for a dissolution of marriage in the county where either party resides. No decree dissolving a marriage shall be granted in any proceeding before ninety days shall have elapsed from the day the original notice is served.
(Iowa Code – Sections 598.2, 598.6 and 598.19)
Since dissolution of marriage is governed by state law, it is required that you meet specific residency requirements in order to file for a dissolution of marriage in the state of Iowa. It is most common that people file for a dissolution of marriage in the county in which they live. If you are unsure of whether or not you meet the Iowa residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.
Iowa Grounds for Divorce
The Petition for Dissolution of Marriage is the initial document filed with the Iowa court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.
The court will grant a dissolution of marriage based upon the following grounds:
No-Fault Based Grounds:
A breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.
(Iowa Code – Sections 598.5 and 598.17)
Every dissolution of marriage case that is filed in the state of Iowa must declare the grounds in which the dissolution of marriage is to be granted. The grounds for dissolution of marriage must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a dissolution of marriage, or agreeing to a dissolution of marriage, make sure that you completely understand the grounds and any potential legal repercussions.
Iowa Uncontested Divorce
This information is an overview of the uncontested Iowa divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Iowa.
To file for a divorce in Iowa, the defendant spouse must be a resident of the state and have been personally served the divorce papers. There is no residency requirement for the filing spouse. If this is not the case, there is a residency period of one year required. Moreover, there is a 90-day waiting period for the divorce to become final. The action may be filed in the county where either spouse resides.
The only grounds for divorce are No-Fault, which means a “[b]reakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”
Actions are filed in the District Court of the county.
The filing spouse is called the Petitioner; the responding spouse is called the Respondent.
Legal separations are permitted under the same terms and conditions of divorce.
Iowa does not offer a summary or simplified divorce procedure.
To file for a divorce that does not involve minor children, the Plaintiff must file the following forms:
a) A Petition for Dissolution of Marriage with No Minor Children, form FL-101, which identifies the parties, birth dates, addresses, and states that a) there are no children under 18 born or adopted in the marriage, no children over 18 still in need of support and c) that the wife is not pregnant and states that the marriage “is broken and cannot be saved’ and requests relief;
b) A Coversheet for a Petition for Dissolution of Marriage with No Minor Children, form FL-102, which identifies the action as a “Domestic Relations – Dissolution – no children (CD-DN)”;
c) A Confidential Information Form, FL-103, which is completed by both the Petitioner and the Respondent and provides the Social Security Numbers of each;
d) Original Notice of Personal Service, form FL-104, which, with a copy of the Petition for Dissolution of Marriage, gives the Respondent 20 days to file and Answer or Motion in response;
e) An Acceptance of Service of Original Notice, form FL-105, which the Respondent may sign, attesting to the fact that he has received the Original Notice of Personal Service and the Petition and he or she accepts it;
f Directions for Service of Original Notice, form FL-106, which identifies the party giving service of process — the delivery of the Original Notice and Petition to the Respondent.
If the Respondent cannot or will not accept service, resides outside the state, the Petitioner must also file the following forms:
a) A Motion and Affidavit to Serve by Publication, form FL-107, which attests to the efforts made by the Petitioner to locate the missing spouse, and
b) An Original Notice by Publication, form FL-108, which is published in the county where the action is filed once a week for three consecutive weeks.
If the Respondent fails to answer within 20 days of the last date of publication, the Petitioner may petition the court for a default decree 90 days later.
If the Petitioner cannot afford the costs of the filing, he or she may also file an Application and Affidavit to Defer Payment of Costs, form FL-109, which exempts him or her from filing fees.
After the Petitioner has filed the appropriate above forms, either he or she or the Respondent may file any of these forms depending upon the circumstances of the couple:
1) A Motion, FL-122, which asks the court to take some action on the case, including a) changing any hearing date, b) awarding temporary support, c) ordering counseling (conciliation), d) setting a hearing date for a Divorce Decree by default, e) abbreviating the 90-day waiting period or f) making any other request;
2) Response to a Motion, FL-123, which is used by the other party when he or she objects to a request in the other spouse’s FL-122;
3) A Financial Affidavit, FL-124, which both Petitioner and Respondent must complete.
If the Respondent fails to complete a Financial Affidavit, FL-124, the Petitioner will be awarded a default decree and all that he or she asks for in the Petition.
a) Affidavit of Mailing Notice, FL-125, which the Petitioner must file if the Respondent was served Notice by Publication and now asks the court for a Decree by default;
b) Notice of Intent to File a Written Application for Default Decree, FL126, which the Petitioner must file if the Respondent has not answered and the Petitioner now seeks a final divorce decree;
c) Request for Relief (Final Decree) in Dissolution of Marriage with No Minor Children, form FL-127, which is used when the Petitioner is getting a default divorce, or the spouses are heading to trial.
d) Settlement Agreement for Dissolution of Marriage with No Children, form FL-128, which is used when the parties have reached agreement about the terms and conditions of division and distribution of assets and liabilities.
Iowa Simplified Divorce Procedures
There are no legal provisions in Iowa for simplified dissolution of marriage. However, sample petition captions and contents are contained in Iowa Code Annotated; Sections 598.4 and 598.5. In addition, both spouses are required to file Financial Affidavits on official forms which are available from the clerk of every district court.
[Iowa Code Annotated; Sections 598.4, 598.5, and 598.13].
Each state has its own unique filing procedure. When filing for dissolution of marriage in Iowa, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory dissolution of marriage documents to the county court. You will discover that some documents may be provided by the Iowa Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the Iowa Laws and the filing requirements.
Iowa Property Division Factors
In Iowa, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the District Court within the Decree of Dissolution of Marriage.
Iowa is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the District Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the District Court to be fair.
Upon the termination of any marriage, the court shall divide all property, except inherited property or gifts received by one party, equitably between the parties after considering all of the following:
a) The length of the marriage;
b) The property brought to the marriage by each party;
c) The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services;
d) The age and physical and emotional health of the parties;
e) The contribution by one party to the education, training or increased earning power of the other;
f) The earning capacity of each party;
g) The desirability of awarding the family home or the right to live in the family home for a reasonable period to the party having custody of the children, or if the parties have joint legal custody, to the party having physical care of the children;
h) The amount and duration of an order granting support payments to either party and whether the property division should be in lieu of such payments;
i) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests;
j) The tax consequences to each party;
k) Any written agreement made by the parties concerning property distribution;
l) The provisions of an antenuptial agreement;
m) Other factors the court may determine to be relevant in an individual case.
(Iowa Code – Sections 598.21)
Since Iowa is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.
Iowa Spousal Support/Maintenance/Alimony Factors
In Iowa the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the District Court will order support from one spouse to the other on a case-by-case basis as follows:
The court may order maintenance to one spouse for a temporary or permanent amount of time after considering all of the following: 1. The duration of the marriage. 2. The age and health of the parties. 3. The property award 4. The level of education of each party. 5. The earning capacity of the party desiring maintenance 6. The feasibility of the party seeking maintenance becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and the length of time necessary to achieve this goal. 7. The tax repercussions 8. Any agreements made by the parties 9. The provisions of an antenuptial agreement. 10. Other factors the court may determine to be relevant in an individual case.
(Iowa Code – Sections 598.21, 598.22 and 598.32)
Iowa Child Custody Factors
In Iowa, the court shall consider the following factors when making a custody decision:
a) Whether each parent would be a suitable custodian for the child.
b) Whether the psychological and emotional needs and development of the child will suffer due to lack of active contact with and attention from both parents.
c) Whether the parents can communicate with each other regarding the child’s needs.
d) Whether both parents have actively cared for the child before and since the separation.
e) Whether each parent can support the other parent’s relationship with the child.
f) Whether the custody arrangement is in accord with the child’s wishes or whether the child has strong opposition, taking into consideration the child’s age and maturity.
g) Whether one or both the parents agree or are opposed to joint custody.
h) The geographic proximity of the parents.
i) Whether the safety of the child, other children, or the other parent will be jeopardized by the awarding of joint custody or by unsupervised or unrestricted visitation.
j) Whether a history of domestic abuse exists.
(Iowa Code – Section 598.41)
In Iowa, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.
Iowa Child Support Factors
Either or both parents may be ordered to pay a reasonable and necessary amount of child support. Child support payments may be ordered to be paid directly to the court. The amount of child support determined by use of the Guideline Charts is presumed to be correct, but may be adjusted for fairness or special needs of the child.
[Iowa Code Annotated; Section 598.21].
Iowa child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Iowa child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Iowa child support deviation factors that may be applicable to the situation.
Iowa Grandparent’s Rights
Grandparent Rights to Visitation: Visitation may be awarded if either the child’s parents are divorced, a petition for dissolution of the marriage is pending, the parent who is the child of the petitioning grandparents is deceased, the child has been placed in a foster home, the petitioning grandparents are the parents of the noncustodial parent and the other parent’s spouse has adopted the child, or the grandparent is the parent of the child’s noncustodial parent and the child had been born out of wedlock. The visitation must also be found to be in the child’s best interest.
Iowa Code Annotated, Section 598.35 (I.C.A. §598.35).
When Adoption Occurs: Visitation rights terminate unless the adoption is by a stepparent.
Child Custody Statutes: Best interest of child “which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents.” I.C.A. §598.21.
Parents May Choose: Yes
Iowa Military Divorce Laws
An Iowa military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.
Military Protection From Iowa Divorce Proceedings
There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.
Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Iowa court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.
Serving an Active Military Spouse
The active duty spouse must be personally served with a summons and a copy of the divorce action in order for an Iowa court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.
Residency and Filing Requirements
The typical military divorce filing requirements are as follows:
a) You or your spouse must reside in Iowa
b) You or your spouse must be stationed in Iowa
Grounds for Iowa Military Divorce
The grounds for a military divorce in Iowa are the same as a civilian divorce.
Dividing the Property
Along with the normal Iowa property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.
The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.
Child Support and Spousal Support
In Iowa, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Iowa child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.
Iowa Child Support Guidelines
The Iowa child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Iowa child support order.
Iowa Child Support Guidelines
Income Share Model *: NO
Percent of Income Model *: YES
Worksheets Available: YES
Extraordinary Medical Expenses Add on: NO
Childcare Add on: NO
Secondary Education Support: YES
UIFSA: YES
* Percent of Income Model: Iowa utilizes the percentage of income formula which determines the amount of child support as a percentage of the income of the parent obligated to pay the child support. This percentage is determined by factoring the number of children requiring support. This is the most basic or primitive method for calculating support. Many people believe that it does not take into consideration many important details, which makes this model of support calculation the least exact.
Iowa Child Support Definitions
Definition of Income and Adjustments
In the guidelines the term “net monthly income” means gross monthly income less deductions for:
1. Federal income tax (properly calculated withholding or estimated payments);
2. State income tax (properly calculated withholding or estimated payments);
3. Social security deductions;
4. Mandatory pension deductions;
5. Union dues;
6. Dependent health insurance coverage deducted from wages or paid for dependent medical insurance pursuant to court order;
7. Actual medical support paid pursuant to court order or administrative order;
8. Unreimbursed individual health/hospitalization coverage or medical expense deductions not to exceed $25 month;
9. Prior obligation of child support and spouse support actually paid pursuant to court or administrative order;
10. Qualified additional dependent deductions; and
11. Actual child care expense while custodial parent is employed, less the appropriate income tax credit.
Other items, such as credit union payments, charitable deductions, savings or thrift plans, and voluntary pension plans, are not to be deducted from a parent’s income, since the needs of the children must have a higher priority than voluntary savings or payment of indebtedness.
Gross monthly income does not include public assistance payments.
Child Support Principles:
1. Upon every judgment of annulment, dissolution or separate maintenance the court shall divide the property of the parties and transfer the title of the property accordingly. The court may protect and promote the best interests of children of the parties by setting aside a portion of the property of the parties in a separate fund or conservatorship for the support, maintenance, education and general welfare of the minor children. The court shall divide all property, except inherited property or gifts received by one party, equitably between the parties after considering all of the following:
a. The length of the marriage.
b. The property brought to the marriage by each party.
c. The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services.
d. The age and physical and emotional health of the parties.
e. The contribution by one party to the education, training or increased earning power of the other.
f. The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
g. The desirability of awarding the family home or the right to live in the family home for a reasonable period to the party having custody of the children, or if the parties have joint legal custody, to the party having physical care of the children.
h. The amount and duration of an order granting support payments to either party pursuant to subsection 3 and whether the property division should be in lieu of such payments.
i. Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.
j. The tax consequences to each party.
k. Any written agreement made by the parties concerning property distribution.
l. The provisions of an antenuptial agreement.
m. Other factors the court may determine to be relevant in an individual case.
2. Property inherited by either party or gifts received by either party prior to or during the course of the marriage is the property of that party and is not subject to a property division under this section except upon a finding that refusal to divide the property is inequitable to the other party or to the children of the marriage.
3. Upon every judgment of annulment, dissolution or separate maintenance, the court may grant an order requiring support payments to either party for a limited or indefinite length of time after considering all of the following:
a. The length of the marriage.
b. The age and physical and emotional health of the parties.
c. The distribution of property.
d. The educational level of each party at the time of marriage and at the time the action is commenced.
e. The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, responsibilities for children under either an award of custody or physical care, and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment.
f. The feasibility of the party seeking maintenance becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and the length of time necessary to achieve this goal.
g. The tax consequences to each party.
h. Any mutual agreement made by the parties concerning financial or service contributions by one party with the expectation of future reciprocation or compensation by the other party.
i. The provisions of an antenuptial agreement.
j. Other factors the court may determine to be relevant in an individual case.
Child Support Modifications
The court may subsequently modify orders made under this section when there is a substantial change in circumstances. In determining whether there is a substantial change in circumstances, the court shall consider the following:
a) Changes in the employment, earning capacity, income or resources of a party.
b) Receipt by a party of an inheritance, pension or other gift.
c) Changes in the medical expenses of a party.
d) Changes in the number or needs of dependents of a party.
e) Changes in the physical, mental, or emotional health of a party.
f) Changes in the residence of a party.
g) Remarriage of a party.
h) Possible support of a party by another person.
i) Changes in the physical, emotional or educational needs of a child whose support is governed by the order.
j) Contempt by a party of existing orders of court.
k) Other factors the court determines to be relevant in an individual case.
Iowa Dissolution of Marriage Definitions
This collection of definitions will help clarify some unique characteristics to the Iowa Dissolution of Marriage laws, process and paperwork which is filed with the court.
Filing Party Title:
Petitioner
The spouse who will initiate the Dissolution of Marriage by filing the required paperwork with the court.
Non-Filing Party Title:
Respondent
The spouse who does not initiate the Dissolution of Marriage with the court.
Court Name:
In the District Court for the County of _____________ , Iowa
The proper name of the court in which a Dissolution of Marriage is filed in the state of Iowa. Each jurisdictional court typically has a domestic relations or a family law department or division.
The state run office devoted to enforcing existing child support orders and collecting any past due child support.
Document Introduction:
In Re the Marriage of:
The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.
Initial Dissolution of Marriage Document:
Petition for Dissolution of Marriage
The title and name of the legal document that will initiate the Iowa Dissolution of Marriage process. The filing spouse is also required to provide the non-filing spouse a copy of this document.
Final Dissolution of Marriage Document:
Decree of Dissolution of Marriage
The title and name of the legal document that will finalize the Iowa Dissolution of Marriage process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.
Clerk’s Office Name:
District Clerk’s Office
The office of the clerk that will facilitate the Dissolution of Marriage process. This is the title you would address letters to or ask for when contacting the courthouse.
If the defendant spouse is a resident of Iowa and was personally served legal papers, there is no residency requirement for the spouse filing the legal separation. Otherwise, there is a 1-year residency requirement. The grounds for legal separation in Iowa are that there has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.
[Iowa Code Annotated; Sections 598.5, 598.6, 598.17, and 598.28].
Property Distribution:
Equitable Distribution
The applicable Iowa law that will dictate how property and debt is to be divided upon Dissolution of Marriage.
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