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Is It Challenging for a Same-Sex Couple to Divorce?

Since 2009, the Iowa Supreme Court has legally recognized same-sex marriage. As such, it also allows same-sex divorce, even if the couple was married in a different state. The same rules and requirements apply to homosexual and heterosexual divorce.

Requirements to File Divorce

Before a couple can file for divorce in Iowa, they must meet certain prerequisites, as listed below:

  1. Proving your marriage is irreconcilably broken (Iowa is a no-fault state); meaning fault does not need to be established.
  2. You or your spouse must have resided in Iowa for at least 12 months.
  3. If you have no minor children, you can file for an expedited divorce by completing: a Petition for Dissolution of Marriage with No Minor Children Form (Form FL-102), a Coversheet for a Petition for Dissolution of Marriage with No Minor Children, a Confidential Information Form (Form FL-103), and an Original Notice for Personal Service.
  4. If you have minor children, you may need a divorce attorney to file paperwork regarding child custody and/or alimony.

Beginning the Divorce Process

After the appropriate paperwork has been filed, the divorce process can begin. You will need to serve your spouse a notice of the proceedings as soon as possible. Once your spouse has received the notice, they have 20 days to respond, or risk losing certain rights.

Your spouse can respond in one of three ways:

  1. Default: If your spouse does not respond within 20 days, the court could assume your spouse agrees with the contents of the petition. The judge may then decide to grant the divorce according to the terms, without any input from your spouse.
  2. Uncontested: this occurs when your spouse (with no minor children) files an answer agreeing with the terms of the petition.
  3. Contested: if there is a conflict between you and your spouse concerning property division, child support, or alimony, the judge may force you to proceed with a trial.

Major Points of Contention

Property Division

While the court prefers for divorcing couples to reach their own agreement on property division, the judge will divide the property if the couple cannot agree.

A judge usually bases property division on the following:

  1. length of the marriage;
  2. each spouse’s contribution to the marriage;
  3. health and age of each party;
  4. each spouse’s earning capacity;
  5. child custody;
  6. tax consequences; and
  7. written agreements concerning property distribution.

Iowa practices equitable distribution. This means the court will allocate property according to what is most fair. Only marital property is divided upon divorce; all separate property (property accumulated before the spouses were married) is not involved in the case.

Child Custody

Iowa makes all child custody decisions based on the best interests of the child. An Iowa court can grant legal custody (the right to make day-to-day decisions for the child) to one or both parents. A court prefers to grant physical custody to both parents, to some degree. Physical custody can either be actual possession of the child or occasional visitation.

A court determines child custody arrangements based on:

  1. who is more suitable to care for the child;
  2. how contact with both parents will affect the emotional and psychological needs of the child;
  3. if the parents can communicate with each other peacefully;
  4. the active involvement of both parents in the child’s life;
  5. if the custody arrangement is something the child would like;
  6. if either parent opposes joint custody; and
  7. history (or lack thereof) of domestic abuse.

Spousal Support

An Iowa court can grant one spouse alimony or spousal support if they demonstrate that they are unable to financially support themselves. This presumes that the award is temporary until the spouse asking for alimony can independently sustain themselves. However, permanent alimony can be granted when circumstances call for it.

When awarding spousal support, a court considers:

  1. the marital standard of living;
  2. any tax consequences of spousal support;
  3. previous agreements between spouses;
  4. the earning capacity of the spouse seeking support;
  5. whether the spouse seeking support is responsible for the children; and
  6. the length of the marriage.

Competent Divorce Attorneys

At The Law Offices of Mark R. Hinshaw, we are dedicated to protecting our clients’ assets and rights. We can guide you through the entire divorce process and do the heavy legal work so you can focus on the next steps for your life.

Contact our firm online or give us a call at (515) 200-7571 for your case evaluation.

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