Custody brings with it tax-related issues, as well.  Generally, only the custodial parent may claim a dependency exemption on behalf of a child.  The custodial parent for IRS purposes is defined as the parent with whom the child has lived for more than half the year.  In many cases, however, the dependency exemptions are alternated between the custodial parent and the non-custodial parent, or perhaps the custodial parent isn’t making enough of an income such that it would be more tax advantageous for the non-custodial parent to take the exemptions.  In order for the non-custodial parent to claim the child as a “qualifying” child, a few requirements must be met, including that over half the child’s support for the year must have been provided by one or both parents, the parents must be divorced or separated under a written agreement by the end of the year or have lived apart during the last six months of the year, and there must be a written declaration – IRS Form 8332 – by the custodial parent relinquishing the rights to claim the qualifying child to the non-custodial parent.  This form is generally filed by the non-custodial parent as part of his or her tax return.

This enables the non-custodial parent to not only claim the dependency deduction but also any child tax credit, which translates into potentially big tax benefits for the claiming parent.  In 2016, the dependency exemption deduction was $4,050 while the child tax credit was up to $1,000 for each eligible child, with a phase-out rule for high income parents.

However, the non-custodial parent cannot claim Head of Household filing status even in the years where they are claiming a qualifying child.  This is important because the standard deduction is bigger than if one were claiming as a single taxpayer.  So even in the years that the custodial parent relinquishes the dependency exemption, he or she can still obtain Head of Household benefits.

Tax issues are complicated – a divorcing party would be well-advised to consult with a tax accountant in conjunction with his or her settlement.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

The spouse requesting the divorce needs to ensure that the hesitant spouse is served with the Original Notice and the Petition for Dissolution of Marriage. Rule 1.302 of the Iowa Rules of Civil Procedure provides that a “notice to the …respondent…against whom an action has been filed shall be served in the form and manner provided by this rule. This notice shall be called the original notice.” The rule further provides what language must be contained in the Original Notice, such as the name of the court and the parties, contact information for the attorney, etc. (Rule 1.302(1)). The rule goes on to discuss other requirements for the Original Notice such as that it has to be signed by the clerk and under seal of the court (Rule 1.302(2)) and how to go about effectuating service (Rule 1.302(4)).

Perhaps more importantly, however, the Original Notice “shall also state that if the…respondent…fails to move or answer, judgment by default may be rendered for the relief demanded in the petition.” That is, once service of process upon the hesitant spouse has been duly and properly effectuated, his or her failure to answer could lead to an award of a default judgment against him or her. This can be accomplished by filing an application for entry of default under rule 1.972 of the Iowa Rules of Civil Procedure.

So a spouse – under Iowa rules – cannot be made to stay in a marriage just because the other spouse refuses to participate in the litigation.

Recently, the Iowa Appellate Court published a case titled In re Marriage of Duran wherein a default dissolution decree was awarded. In the Duran case, the parties had three children and by the time the wife petitioned for a divorce, the husband was living in Ohio.  The husband filed an answer to the divorce petition, but his attorney withdrew prior to trial based on difficulty communicating with the client. The husband did not appear for trial nor did he retain new counsel to appear on his behalf.

On appeal, the husband claimed that he did not know that his attorney had withdrawn nor had he received notice of the trial date. The Court did not find that argument credible, noting that the trial date had been obtained six months prior and three months before his former lawyer filed her notice to withdraw. In that time, she was still actively communicating with the husband.

The default judgment awarded in this case was substantial – sole custody of the children, child support in the amount of $4,983.33 per month, and a property division that included the award of two residences, two vehicles, and a hefty cash property settlement payout to the wife. When the husband appealed the child support award, the Court noted that he “could have but did not refute this testimony. Because his non-participation was the reason the court lacked sufficient information to calculate child support under the guidelines, he should not be heard to complain when the court imposed the temporary amount to which he stipulated.”

The moral of this story? You mustn’t bury your head in the sand when a divorce petition comes your way. The risk is that the resulting default judgment may not be particularly desirable to you.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

So how can Vandusen refute this presumption?

Iowa Code 252F is instructive on this issue. He will need to file a petition to disestablish, or written denial of, his paternity. The presumption of paternity may be rebutted only by clear and convincing evidence and to accomplish this, the father, mother, and child would need to submit to paternity testing. If the paternity test shows that the putative father is not the biological father of the child, the child support recovery unit is required to withdraw its action.

Vandusen’s complaint is that it is going to cost at least $2,000 to retain an attorney just to disestablish his paternity. But that’s nominal compared to the cost of supporting a one-year-old that isn’t his for the next 18 years.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

According to Iowa Code 598.21(A)(1):

598.21A ORDERS FOR SPOUSAL SUPPORT.

1. Criteria for determining support. 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:
   • The length of the marriage.
   • The age and physical and emotional health of the parties.
   • The distribution of property made pursuant to section 598.21.
   • The educational level of each party at the time of marriage and at the time the action is commenced.
   • 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.
   • 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.
   • The tax consequences to each party.
   • Any mutual agreement made by the parties concerning financial or service contributions by one party with the expectation of future reciprocation or compensation by the other party.
   • The provisions of an antenuptial agreement.
   • Other factors the court may determine to be relevant in an individual case.

Last year, in the case, In re Marriage of Gust, 858 N.W.2d 402 (Iowa 2015), the Court acknowledged that a few states determine spousal support awards by employing approaches that rely on arithmetic formulas.  The Court considered the advantages of employing a mathematical formula – similar to our state’s child support calculations – the most obvious being that the calculation of alimony becomes equally as straightforward and can be applied predictably and consistently from one court to the next.  Currently, as the statute above reads, judges are required to consider such factors but it is in their individual discretion as to how much weight to apply to each individual relevant factor.  Here, therefore, the disadvantage in employing a mathematical formula is that it essentially removes the court’s discretion in its alimony decisions, which may lead to an inequitable result for either spouse.  The Gust Court looked at recommendations from the American Law Institute and the American Academy of Matrimonial Lawyers and noted that its resolution on the alimony issue was consistent with the spousal support award that would have resulted from an application of the AAML guidelines.  Although proponents of the mathematical formula celebrated what appeared to be a movement towards a more predictable formulaic approach, the Gust Court also cautioned that there continues to be no legislative mandate regarding an alimony formula and until such time, the Court must continue to apply the factors in Iowa Code 598.21(A)(1).

Recently, in the case, In re Marriage of Mauer, filed on January 29, 2016, the Court once again examined whether the application of a presumptive spousal support formula was equitable.  In Mauer, the parties owned substantial assets, including a successful ophthalmology practice developed by the husband.  The parties also had four children, two of whom were still minors, and so the wife, as their primary physical custodian, would be receiving child support.  After the parties’ post-trial motions, the trial court ordered the husband to pay $9100 a month in spousal support and both parties appealed, with the husband claiming it was too high and the wife claiming it was too low.  The Court of Appeals agreed with the wife and ordered the husband to pay $25,000 per month in spousal support, expressly finding that its determination was consistent with the AAML guidelines on alimony.

On review, however, the Iowa Supreme Court noted that “even if spousal support guidelines may provide a useful reality check in some cases, because they are not Iowa law, they can serve neither as the starting point for a trial court nor as the decisive factor for a reviewing court on appeal.”  When application of the factors contained in section 598.21A(1) results in a spousal support calculation that is inconsistent with a spousal support calculation under any guidelines-based approach, the court’s application of the statutory factors must prevail over the guidelines-based determination.”  The Supreme Court clarified that even though it wrote in a footnote in the Gust case that the outcome would have been the same, whether applying the factors in Iowa Code 598.21(A)(1) or the AAML guidelines, the factors still must be used when arriving at an alimony award.  In that regard, the Court disagreed with the findings of the appellate court in awarding the wife more alimony than necessary to maintain the standard of living she enjoyed during the marriage.  After examining the wife’s post-divorce budget, the investable preretirement assets that she was awarded in the divorce, and her reasonable employment income, the Supreme Court found that an award of $12,600 per month was an equitable spousal support award after application of the factors in 598.21(A)(1).

Although the Gust case perhaps made it look like Iowa was inching closer towards a mathematical approach in determining alimony, it is clear from the Mauer case that until such time as Iowa Code 598.21(A)(1) is legislatively modified to provide for such formulas, our courts must continue to apply the factors therein.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

If you are still in the throes (or woes?) of your divorce proceedings, it is very likely that a court would divide your winnings with your soon-to-be ex-spouse because the proceeds will be considered marital property. Even if the lump sum or annuity payout had not yet been made by the time your divorce was finalized, or even if you could prove that you bought the winning ticket with $2 that you withdrew from a non-marital account – therefore arguing that the winnings themselves are also non-marital – the court has equitable powers to divide that money according to Iowa Code Section 598.21, after considering such factors as the length of the marriage, the property brought to the marriage by each party, the contribution of each party to the marriage, the age and health of the parties, the earning capacities of the parties, other economic circumstances of each party, and any other factor that the court deems relevant.

For child support purposes, the court probably will not “double dip” and treat the lottery winnings as both an asset to be divided and income stream upon which to calculate child support guidelines. Doing so would result in the ludicrous scenario of you paying, for example, 20% of $1.5 billion every year (half of which is already earmarked for your ex-spouse in this hypothetical settlement) for a small child who certainly doesn’t need lavish boats and vacations! Instead, here is where you, your spouse, and your lawyers have some wiggle room to be creative. Perhaps consider establishing a trust for each of your children that pays out a certain amount for educational, medical, extracurricular and other reasonable living expenses, in lieu of the traditional child support payments that would otherwise be calculated using your $1.5 billion windfall.

Anyone seeking alimony after receiving half of a $1.5 billion windfall probably shouldn’t hold their breath. That’s because Iowa Code Section 598.21A requires the court to consider such factors as the financial resources of the parties and the earning capacity of the spouses when determining alimony. When such financial resources and earning capacities exceed that party’s “need,” then the court will not award alimony.

The parties’ assets – and the value thereof – are generally set in stone on the date of the divorce and such property divisions are non-modifiable in Iowa. Therefore, if your divorce was finalized a month ago and you win the Powerball tonight, the winnings are probably going to be yours in their entirety (except for the portion that you are forced to share with Uncle Sam). But remember that ex-spouse who you divorced a month ago? He or she could request that child support be modified to reflect your increased income.

And even if you aren’t already in the throes of a divorce – and if you happen to defy the very miniscule odds of winning the Powerball jackpot – according to financial guru Dave Ramsey, the divorce rate among lottery winners is four times the national average and you have a 65% chance of going bankrupt within 15 years.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

In a 5-4 decision, Justice Kennedy delivered the opinion, in which Justices Ginsburg, Breyer, Sotomayor, and Kagan joined, while Justices Roberts, Scalia, Thomas, and Alito dissented.

In Obergefell, a series of cases were tried in district courts in the states of Michigan, Kentucky, Ohio, and Tennessee – all states that did not recognize same-sex marriages and refused to recognize those of the petitioners. The petitioners in Obergefell were comprised of 14 same-sex couples, as well as two men whose same-sex partners were deceased. The petitioners’ marriages were lawfully performed in states that did recognize same-sex marriage. The two-pronged question posed to the Supreme Court were whether the Fourteenth Amendment 1) requires a state to license a marriage between two people of the same sex; and 2) requires a state to recognize a same-sex marriage licensed and performed in a state which does not grant that right.

The Court recognized that under the Fourteenth Amendment, no state shall “deprive any person of life, liberty, or property, without due process of law” but that “an enduring part of the judicial duty” has been to interpret via the Constitution in identifying and protecting fundamental rights, which previously included the right to marry in another landmark Supreme Court case, Loving v. Virginia. In reaching the conclusion that “same-sex couples may exercise the right to marry,” the Court analyzed four fundamental principles of marriage, the first of which was that individuals have the right to personal choice in marriage, as demonstrated in Loving. The second principle addressed in the opinion was that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individual. Justice Kennedy referenced the Lawrence v. Texas Supreme Court case that afforded same-sex couples the same right as opposite-sex couples to enjoy intimate association. The third fundamental principle addressed was that marriage safeguards children and families. Again, Justice Kennedy referenced a prior Supreme Court case, Zablocki v. Redhail, wherein it was held that the right to marry, establish a home, and bring up children is a central part of the Due Process Clause. Finally, the fourth fundamental principle addressed was that “marriage is a keystone of our social order.” By that, Justice Kennedy pointed out that issues such as taxation, inheritance and property rights, intestate succession, spousal privilege in laws of evidence, hospital access, medical decision-making and authority, adoption rights, rights and benefits of survivors, birth and death certificates, health insurance, and child support, custody and visitation rules all depend on an individual’s marital status.

As Justice Kennedy wrote when summing up the majority opinion that the Fourteenth Amendment permits same-sex couples to marry, “Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”

As to the second question posed to the Court regarding whether a state must recognize a same-sex marriage from another state, Justice Kennedy wrote that being married in one state but having that valid marriage denied in another state promotes instability and uncertainty, and that because the Court now held in this opinion that same-sex couples may exercise the fundamental right to marry in all states, it also followed that there is no lawful basis for a state to refuse to recognize a lawful same-sex marriage performed in another state.

In his closing, Justice Kennedy wrote:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

In his dissent, Justice Roberts argued that while the policy arguments in support of same-sex marriage may be compelling, each state should be allowed to maintain its own definition of marriage through the legislative process. Justice Thomas, in a separate dissent, wrote that petitioners were not actually deprived of liberty as required by the Due Process Clause, but that they were still free to engage in their same-sex relationships, cohabitate and raise their children, and engage in civil unions in states that do recognize same-sex marriages without governmental interference. Similar to Justice Roberts, Justice Alito opined in his dissent that the majority decision “usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.”

To review a copy of the full Obergefell v. Hodges opinion, go here.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

A bifurcation allows spouses to divorce before all the final details are completed. The Court grants the dissolution of the marriage first with issues of custody, visitation, child support, alimony, property division, and attorneys’ fees to be resolved at a later time. Some reasons for requesting a bifurcation are that one of the spouses wishes to remarry, or the wife is pregnant and the husband is not the biological father.

In the case, In re Marriage of Thatcher, Susan and Ronald Thatcher were married for nearly 30 years with an adult daughter who was a full-time college student. In January 2013, Susan was diagnosed with cervical cancer with a one-year life expectancy. Eight months after discovery of her cancer, Susan filed for divorce.  In her financial affidavit, she disclosed several life insurance policies, inherited assets, retirement accounts, and other assets that she owned jointly with Ronald. In November, Susan filed a motion to bifurcate the proceedings because it was not likely that she would survive long enough to be able to participate at trial and wanted to have her marriage dissolved before she died. Her doctors stated that her life expectancy at that point was “limited from days to possibly weeks.” Ronald resisted the bifurcation motion and argued that there was no legal basis to bifurcate the proceedings and that to do so would prejudice his rights because he would not have the opportunity to cross-examine Susan, he would lose health insurance and his status as beneficiary on her life insurance, and he would lose the right to file a joint tax return for that year.

The district court granted the motion to bifurcate and ruled that the parties were restored to their rights as single persons. Ronald appealed. The Court of Appeals dismissed the appeal and concluded that the decree was not final and appealable because the divorce was not entirely complete as a result of the pending issues of the property distribution.

The Supreme Court disagreed with the Court of Appeals and stated that the bifurcated judgment was an appealable final order because it completely dissolved the parties’ marriage. The Supreme Court also disagreed with the district court that the proceedings could be bifurcated. The Court examined Iowa Code Section 598.21 and concluded that the plain language of the statute requires a division of property contemporaneous with the decree of dissolution. Susan’s estate was substituted in her place and argued that Iowa Rule of Civil Procedure 1.914 permitted separate trials of any claim or separate issue. However, the Supreme Court disagreed and argued that such rule contemplated permissible bifurcated issues, such as orders dealing with temporary child support or resolving issues of validity of a prenuptial agreement.  The Court stated that this went beyond separating trials of particular issues and stated that “the marital dissolution itself and the final division of marital property are inseparable parts of the main action that must be addressed together in the final judgment.”

Although the Court examined other states’ statutes that both permitted and prohibited bifurcated divorces, and also examined the public policy arguments in favor of and against bifurcated divorces, the Court opined that “the Iowa legislature is the appropriate body to make the policy judgments on whether to allow bifurcated divorces and, if so, under what conditions.”

For a complete copy of the text of the Thatcher opinion, please click here.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

Alienation of affection is a tort brought by a spouse against a third party – typically the adulterous spouse’s paramour – for interfering with and causing the breakdown of that spouse’s marriage. At common law, the scorned spouse has to show that love and affection existed between the married couple during the marriage, that the spousal love and affection was destroyed, and the paramour’s malicious conduct contributed to the loss of affection. The plaintiff does not have to show that the defendant paramour actually intended to alienate the spouse’s affection; rather, that his or her conduct tended to and did have the effect complained of. Only a handful of states today recognize alienation of affection. Daly’s ex-wife filed her lawsuit in Mississippi – which does recognize alienation of affection – claiming that the affair took place there.

The tort of alienation of affection has been abolished in Iowa for almost 35 years. Prior to that, plaintiffs were prevailing in court for compensatory and punitive damages in alienation of affection lawsuits. The Iowa Supreme Court first addressed the viability of the alienation of affection tort in Bearbower v. Merry, 266 N.W.2d 128 (Iowa 1978). In Bearbower, the Court questioned whether an individual’s relational interest is of “sufficient magnitude to warrant judicial protection from those who intentionally interfere with it.” Id. at 130. The Court then responded to the traditional criticisms of alienation of affection, one of them being that there should be no damages assessed against the defendant if the marriage was already irreparably unstable at the time of the affair. The Court noted that “mere loss of a spouse’s affections does not render defendant liable unless the latter’s misconduct was a substantial factor in causing such loss. Defendant is permitted to show a prior deteriorated marital situation in mitigation of damages.” Id. at 128. Therefore, merely having the affair did not mean that the defendant was inevitably going to lose in court.

Another common criticism at that time of alienation of affection was that the mere existence of such a tort would lead to the opportunity for blackmail; however, the Bearbower Court did not find this argument to be particularly persuasive because it noted that “in this jurisdiction a large volume of these cases involve no alleged sexual misconduct. They therefore present no risk to ‘reputation,’ and consequently, no opportunity for blackmail.” Id. at 133-134. The Court held that an action for alienation of affection is consistent with public policy.

Three years later, amidst a growing number of jurisdictions abolishing the tort, the Iowa Supreme Court once again had the opportunity to address the alienation of affection tort in Funderman v. Mickelson, 304 N.W.2d 790 (Iowa 1981). The Court noted the predicament that juries find themselves when determining what came first – the marriage breakdown or the misconduct – and that juries might be unfairly influenced “after learning of conduct of which they strongly disapprove and which society condemns.” Id. at 791. Perhaps more importantly, however, the Court noted that the “theory of recover…is flawed” because it is “rooted in ideas we have long since renounced, involving wives as property.” Id.

The purpose of alienation of affection torts – to protect the spousal relationship from third party interference – is also what led to its demise in Funderman. The Court wrote that the alienation of affection “action has survived in the hope that it affords some protection to existing family relationships. But this lofty hope has proven illusory. Human experience is that the affections of persons who are devoted and faithful are not susceptible to larceny no matter how cunning or stealthful. And it is folly to hope any longer that a married person who has become inclined to philander can be preserved within an affectionate marriage by the threat of an alienation suit. If we did pretend that a would-be paramour would be thereby dissuaded, a substitute is likely to be readily found.” Id. at 791-792. Ultimately, the Court chose to abolish the tort in Funderman because “spousal love is not property which is subject to theft” and “plaintiffs in such suits do not deserve to recover for the loss of or injury to ‘property’ which they do not, and cannot, own.” Id. at 794.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

When Denise Richards and Charlie Sheen went through a divorce three years after getting married, Sheen was heard in voicemails calling the mother of his children a variety of unsavory names.  In Iowa, and presumably almost anywhere else, custody is conditioned upon the parties’ ability to get along and to be able to foster a relationship between the children and the other party.  While this should go without saying, a parent’s conduct in bad-mouthing his or her spouse will likely be a factor in determining who obtains custody of the children.

#4 – You notify the media when you and your spouse “consciously uncouple.”

Married in 2003, Gwyneth Paltrow and Chris Martin alerted the press of their impending divorce in March 2014 by posting a message on Gwyneth’s blog regarding their desires to separate but continue to be co-parents to their children.  Their mutual desire to put their children and their family first over any bad blood and hurt feelings would be lauded by any judge in any divorce courtroom across the country.  (See #5 above.)

#3 – Your divorce was not nearly as expensive.

Elin Nordegren reportedly walked away with an estimated $110 million in her divorce from Tiger Woods.  Iowa courts strive for an equitable division of the marital property and courts look to several factors, such as the length of the marriage, as well as the age, health, and earning capacities of the parties, when determining how to divide property.  But odds are that the balance sheet used in your divorce didn’t contain close to a reported $1 billion in assets.

#2 – Your divorce was really not as expensive.  (See #3 above).

Mel Gibson’s divorce from Robyn Moore Gibson was reportedly worth an estimated $425 million.

#1 – You’re stripped of your right to be the Queen of England.

When Charles and Diana divorced after about 15 years of marriage and two sons who would be the eventual heir to the throne, Lady Diana Spencer gave up the right to be called “Her Royal Highness,” which meant that she would have to curtsey to Prince Charles and her children.  Can you imagine having to sign a Stipulation or a Decree that requires you to bow or curtsey to your ex-wife or ex-husband?  I didn’t think so.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice.  Please consult with an attorney if specific legal information is needed.

Over the years, John contributed to the Family Law section of the Iowa State Bar Association and chaired the Family Law Committee for the Polk County Bar Association. Since 2001, he has been listed in every edition of the Best Lawyers in America in the area of Family Law, and was named Lawyer of the Year by the publication numerous times.

Before starting his law career, John served in the United States Marine Corps as a captain in Vietnam, from 1968-1971. In retirement, he looks forward to more fishing, golfing and tennis.

“The practice of law was very good to me, and I’ve really loved my time here,” John said at a reception held for him at the firm. “Cherish your friendships. I know I will.”

Please join us in wishing John all the best for his retirement. He will be missed!