Family Law 101

10:45 a.m.-11:30 a.m.

Presented byCaitlin Slessor

Shuttleworth and Ingersoll, PLC115 3rd Avenue SE

Cedar Rapids, IA Phone: 319-365-9461

2014 Nuts & Bolts SeminarCoralville

2014 Nuts & Bolts SeminarCoralville

THURSDAY, OCTOBER 30, 2014THURSDAY, OCTOBER 30, 2014

C A I T L I N S L E S S O R S H U T T L E W O R T H A N D I N G E R S O L L , P L C ,

C E D A R R A P I D S , I A 3 1 9 - 3 6 5 - 9 4 6 1

C L S @ S H U T T L E W O R T H L A W . C O M

Divorce 101

-T H I S I S M E A N T T O B E A V E R Y B A S I C O U T L I N E O F D I V O R C E L A W I N I O W A . T H E F A M I L Y L A W C O M M I T T E E O F T H E I O W A S T A T E B A R A S S O C I A T I O N P U T S O N A T W O D A Y

S E M I N A R E V E R Y Y E A R T H A T G O E S I N T O D E P T H O N S P E C I F I C T O P I C S

-A T T H E E N D O F T H E O U T L I N E I S A N A P P E N D I X W I T H F O R M S A N D S T A T U T E S T H A T A R E R E F E R R E D T O

T H R O U G H O U T T H E P R E S E N T A T I O N -T H E S E F O R M S A R E M E A N T T O B E A S T A R T I N G P O I N T F O R

T H O S E C R E A T I N G T H E I R O W N F O R M S A N D S H O U L D B E M O D I F I E D B Y T H E U S E R T O A P P L Y T O T H E I R P A R T I C U L A R

D I S T R I C T A N D C L I E N T .

A few notes about this presentation:

Preliminary Matters

Iowa’s divorce statute is Chapter 598. It’s not long and you should give it a full read if you’re going to practice divorce law.

Also of interest: Chapter 252 for child support questions 595: the marriage statute. Who, how, etc. 596: premarital agreements. 597: the “husband and wife” statute

Preliminary Matters

Iowa is a “no fault” divorce state, as all states are. New York was the lone holdout but finally adopted no fault in 2010.

Historically, parties who wanted a divorce had to prove wrongdoing or breach of the marital contract. Infidelity or cruelty were the most common.

With no fault divorce, this is no longer necessary. This is sometimes referred to as unilateral divorce: only one party has to want it and doesn’t have to have a particular reason

Studies have shown that no fault divorce leads to lower incidence of female suicide and domestic violence. 1

In Iowa, you must simply assert that “the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.” 1 http://www.freakonomics.com/2010/06/16/divorce-reform-

hits-new-york/

Preliminary Matters

A marriage is a legal contract between two people A divorce is a dissolution of that contract The statute is referred to as the Dissolution of

Marriage chapter

THE BASIC PARTS OF A DIVORCE CASE

1. Pre-filing 2. Filing 3. Discovery, i.e., information gathering 4. Evaluation 4 a. Temporary orders

5. Negotiation 6. Resolution 6 a. Settlement 6 b. Trial

7. Post-Decree *I have left appeals out of this outline. This is far too

specialized to cover in today’s time

1. Pre-filing- Dissolution of Marriage Questionnaire

Create a dissolution of marriage questionnaire for potential divorce clients. It will help you get much of the information you need in one place.

Giving clients a questionnaire also helps them see what kind of information you will need from them and what will be relevant to their case.

Clients have busy lives and much of your job will be to remind them of what their obligations are.

1. Pre-filing- Practice Tips

It’s never too soon to lay the foundation for a healthy family law attorney- client relationship

Talk to clients about finding a support person in their life: counselor, minister, sister, friend

Let them know that you are there to help with the legal issues but that many of the questions they will encounter will not be of a legal nature. Those should be discussed with a support person.

Set up realistic expectations. Keep in mind that you are only hearing one side of the story and that their spouse is unlikely telling the same story.

1. Pre-Filing- Practice Tips

From the very first meeting, listen for the problem areas and try to get the client used to the reality of the situation: Look for flags like the client saying they will never pay alimony, won’t divide their retirement, just want primary

care Sometimes using language like “family law disputes can be unpredictable” or “ keep in mind that a judge may see

it differently” can be a gentler way of telling someone something that they don’t want to hear. It is rarely going to help the client in the long-run if you mindlessly promise to get whatever they are asking for. 99%

of clients appreciate candor and will have better things to say about you if you give it to them straight. Be realistic and up front about costs: if clients say things that indicate they will need a lot of service, let them know

how that will affect their bills. Give clients an idea of the range of costs they can expect and tell them that you will help them plan for this. This will improve your relationship with the client, prevent arguments about bills later if the

case gets expensive and help ensure you get paid. Keep in mind that many people do not have thousands or tens of thousands in savings. They may rely on a 401(k)

loan or a tax refund to pay their bills. If you quote them a retainer but don’t explain the circumstances that might lead to exceeding the retainer, they may be frustrated because they would have saved/borrowed more if you just

would have told them.

1. Pre-Filing- Common Jurisdictional Questions

Before you file a dissolution of marriage case in Iowa, make sure you can.

The Respondent must be an Iowa resident and be personally served OR the Petitioner must have resided here for at least one year

There are endless combinations of facts that can potentially occur, but here are a few basics that come up:

1. Pre-Filing- Common Jurisdictional Questions

I just moved here from Hawaii because I missed the winter. Can I get divorced in Iowa? No, not until you’ve been here a year, or if your spouse moves

here and you have him/her personally served.

I just moved to Hawaii because I hate winter but I want to get divorced in Iowa. That’s where my wife and children live. Can I do that? Yes, spouse is an Iowa resident

1. Pre-filing- Venue

Venue is proper in any county where either spouse lives

If cost is an issue, consider filing in the county where the attorney works, if that is an option

For example, client lives in Vinton (Benton Co), spouse lives in Cedar Rapids. Client hires Linn County lawyer: much cheaper to walk two blocks to the courthouse than to drive 45 minutes to Vinton.

1. Pre-filing- a note about domestic abuse

It is important to determine whether domestic abuse is an issue. If so, discuss the option of filing for a 236 protective order.

It is equally important to discuss domestic abuse in the context of not doing it. This can be an awkward conversation, but get comfortable doing it.

Once your client has perpetrated abuse, certain things might be very difficult for them- getting custody or shared care and remaining in their homes, for example.

2. Filing The Case: The Petition

Now that you know this is the proper state and you’ve decided on a proper venue, draft your petition.

Iowa Code Section 598 has a subsection that describes what to include in your petition. See the Appendix.

2. Filing The Case- Injunctions

Consider whether an injunction against the dissipation of assets is necessary.

In the Sixth Judicial District, you can get a “standard peacekeeping” injunction pretty easily at the beginning of a case if it is mutual and follows a certain format. (See Injunction in the Appendix).

Requires a sworn statement (affidavit) from client on the necessity and you must follow the Iowa Rules of Civ. Pro. for injunctions (Division XV).

2. Filing the case- some notes

Your client must sign the petition Must also include an original notice, confidential

information form and cover sheet Include a $185 filing fee Serve the opposing party- ask your client whether

personal service or an acceptance is better It is helpful to establish a checklist for your case to keep

track of tasks. See Appendix-Divorce checklist. Remind your clients to take their Children in the Middle

class.

3. Discovery

Tell your client to begin gathering their financial information.

In fact, some areas have mandatory discovery, like in the 6th Judicial District. (See Appendix for Family Law Case Requirements Order).

Spend some time drafting a really good overview letter that you can use in most cases. It will cut down on getting the same question over and over. Hint: do separate form letters for case with/without children. (See Appendix for Initial Dissolution Letter).

3. Discovery Find out if mediation is required in your district.

Find out if the local convention is for attorneys to go to mediation or not.

Even if it’s not required, evaluate whether it will be helpful and whether an attorney presence will also be helpful.

Calendar some follow up dates: when to hound your client about financial documents, when the 90-day waiting period expires, any court ordered dates or deadlines.

3. Discovery- Formal Discovery

Evaluate whether this is necessary. Often, it is not. You can get information from the

source directly: It is lying around the house. Joint bank accounts- have your client obtain the information. Joint tax returns- your client can request copies. Subpoenas if you know where the information is located.

Just ask- the other attorney may provide it willingly. Both sides are often under pressure to be cost-effective.

3. Discovery- Formal Discovery

Same tools of discovery as any other civil case (Iowa Rule Civ. Pro. Division XII (1.701 and subsequent) Depositions Interrogatories Requests for Production Requests for Admissions

Use judiciously- five good questions will be answered more thoroughly than thirty form questions.

4. Case evaluation

When you have all the information you need, begin thinking about your resolution.

Have a list of issues that you provide your client (See Appendix-Settlement worksheet) or use for yourself. Kids Property (real estate, debts, cars, bank accounts,

retirement) Support (alimony) Misc. (name change, court costs, attorney fees)

4.a. Temporary Orders

Evaluate whether any temporary orders are necessary. Here is what I say to clients: Because a divorce may take over a year in our district to go to

trial, the court can enter orders for custody and support while the case is pending so that you and your spouse know what your obligations are to each other and so that you’re not having disagreements about the kids’ schedule and finances. Do you think you will be able to work out these issues on your own by agreement or that you will need a court order during this time?

It can be quite expensive to have a temporary matters hearing, as well as divisive for spouses to have to take stances against one another early in a case

4.a. Temporary Orders

Let people know they can file a request for temporary orders any time. The decision doesn’t have to be made at the time of filing.

In contentious cases, recommend requesting a temporary hearing right away.

Know whether the court’s schedule is something that a client should be aware of: for ex., in Linn County, the wait on a temp. hearing is about 8 weeks right now.

4.a. Temporary Orders

So, you think you need them. What can be decided at a temporary matters hearing?

Look at the statute: 598.10 TEMPORARY ORDERS. 1. a. The court may order either party to pay the clerk a sum of money for the separate support and

maintenance of the other party and the children and to enable such party to prosecute or defend the action. The court may on its own motion and shall upon application of either party or an attorney or guardian ad litem appointed under section 598.12 determine the temporary custody of any minor child whose welfare may be affected by the filing of the petition for dissolution.

b. In order to encourage compliance with a visitation order, a temporary order for custody shall provide for a minimum visitation schedule with the noncustodial parent, unless the court determines that such visitation is not in the best interest of the child.

2. The court may make such an order when a claim for temporary support is made by the petitioner in the petition, or upon application of either party, after service of the original notice and when no application is made in the petition; however, no such order shall be entered until at least five days' notice of hearing, and opportunity to be heard, is given the other party. Appearance by an attorney or the respondent for such hearing shall be deemed a special appearance for the purpose of such hearing only and not a general appearance. An order entered pursuant to this section shall contain the names, birth dates, addresses, and counties of residence of the petitioner and respondent.

At least in the sixth judicial district, the court does not typically grant possession of the marital home to one party or another at a temporary hearing.

4.a. Temporary Orders

Preparing your client Don’t reinvent the wheel: spend the time to write a good set of

instructions that you can use for every client. Everyone has the same questions. (See Appendix).

Create a letter or instructions for witnesses (See Appendix). Give witnesses padded deadlines.

Reiterate deadlines and let clients know that your ability to do your best depends on them meeting their deadlines. It may take a few experiences to learn this, but a rushed affidavit is never as good as one that has been carefully prepared.

Figure out whether your client will personally testify and prepare them. Even if clients don’t normally personally testify, let them know that it may be a possibility (if that’s true).

Again, set up reasonable expectations

4.a. Temporary Orders

Preparing yourself: Consider filing a “requested relief” statement. Have some alternative child support guidelines if child support

is an issue. Have a list of your best points to argue in chambers or to

examine your client about (if an in-person hearing is held). Talk to opposing counsel about what is agreed upon. Make

sure you share this with the judge so it ends up in the order.

4.a. Temporary Orders

After the hearing: No, you can’t really appeal it. You can do an interlocutory

appeal, but in our office this has resulted in clients just paying more attorney fees.

No, you can’t modify it because of some small change. But, yes, if something serious occurs you can apply to modify it. This doesn’t mean it will be modified.

Yes, you have to follow this for a year (or so). Yes, it sets up a status quo that may be hard to get changed at

trial.

4. Evaluation- property

The law: We are striving for an “equitable division of the marital property.”

Does not require “equal” but often gravitates that way. Think: “fair,” not “equal” when you describe to clients. Read Iowa Code Section 598.21. It tells you what to

consider. Well developed case law on issues like pensions,

premarital property, etc. But not terribly helpful for issues like what to do with the photo

albums.

4. Evaluation

For property issues: Create a property division worksheet: List each piece of property/debt that each party could receive and do

some math. Play with the math. Explore minimums and maximums. Share the math with your client. Some people have a very hard time understanding financial

information. Figure out if you have one of those clients and explain it until they get it. A few issues I see: The client who doesn’t understand that an encumbered asset, no

matter how big, is really only worth it’s “equity.” The client who highly values the cash property settlement (i.e., she

had to pay me money! I must have won!). The client who has trouble calculating the cost of trial into their

equation.

4. Evaluation- children

For cases involving children Get comfortable talking about “legal custody” and “physical custody.” Explain “primary” physical custody versus “joint” physical custody. Be thorough when you analyze how custody and support work together.

Sometimes, a parent is better off agreeing to shared custody and split expenses rather than primary custody and greater child support.

There is plenty of case law regarding custody. Read it and get a feel for the cases.

At least know these cases well: - In RE Marriage of Winter 223 N.W.2d 165 (Iowa, 1974):

Discusses factors relevant to a custody determination. -In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007):

Discusses the factors for determining whether a shared care schedule is appropriate.

4. Evaluation- children

Practice tips Print out some blank Google calendars. Use colors for a visual Ask for a budget for the kids: include daycare, dance, car

insurance, school lunches, school registration, band instrument rental, etc. Don’t include “in home costs” like dinner, water bill, clothing.

Explore what your client really wants. A lot of people say, “I just want primary care, I don’t care about anything else,” or, “I just want my kids to live with me. Find out why. They may just be parroting what a friend has told them.

4. Evaluation- children

For cases involving children, cont’d I actually draw out a picture of what people are fighting about

in custody cases:

The client need not (usually) be concerned about spending 0 days with their children

Client has 0 days with children

Spouse has 0 days with children

Exactly equal time with kids

What you are paying me to fight about

4. Evaluation- children

For cases involving children, cont’d Best interest of the child is the prevailing standard. Do not forget to explore legal custody- sole legal

custody is rarely granted but make sure you are evaluating this issue.

If your client asks “can we bring up x?” the answer is almost always “yes.”

The more important question is whether you should. But read the statute for yourself to determine what you “can bring up,” and what you should bring up: 598.41 is the relevant section.

4. Evaluation- children

For cases involving children, cont’d Practice Tip:

Every once in a while the super-agreeable client can be a problem. The most common problem I see is that when someone wants the divorce to be over right away, they will urge you to stop requesting so much detailed information about their custody arrangement. They just want to “keep it open.”

This is a bad idea. Resist the urge! It leaves people with an unusable document when they inevitably need it in the future.

I throw myself under the bus: “just humor me and let’s at least put in some sort of default because I’m so obsessive about this sort of thing.” Or you could try “you’ll thank me when you’re older.”

4. Evaluation- child support

For cases involving children, cont’d Child support: Apply the Child Support Guidelines. Located here:

http://www.iowacourts.gov/wfdata/files/Childsupport/Chapter9.pdf

And in your Iowa Court Rules book. If you do a lot of divorces/custody cases, invest in Iowa

Support Master software Located here: https://www.awism.com If you want to deviate from the guidelines, spell out why in

your stipulation of settlement.

4. Evaluation- Alimony

Alimony can often be the most difficult issue. This is because the law does not provide certainty. Start by looking at whether there is an income disparity. If so, keep

going. Look at the length of the marriage. Look at earning capacity, non-monetary contributions to the

marriage, moving for one spouse’s career, asset division. Consider what effect child custody and support decisions have on

the alimony analysis. Read some recent court of appeals decisions. Look for alimony calculators- from the American Academy of

Matrimonial Lawyers, other states, etc. These are not controlling but can give you some ideas.

Consider property settlements in lieu of alimony where appropriate.

5. Negotiation

Once you have evaluated your case and provided your client with a reasonable set of expectations, you are ready to begin negotiating your case.

You have a variety of techniques at your disposal. Think of easier/less expensive techniques versus more

involved/more expensive techniques. Level 1 (easier) techniques: Pick up the phone and talk to the other attorney. Consider e-mail- this provides a written record of agreements and makes

drafting easier. It also allows clients to see the negotiations directly. It also ensures that nothing is forgotten.

Letter writing- just as a note, sometimes it can be hard for a client to receive a strongly worded letter in the mail from the opposing attorney without warning. Consider calling to give them advance warning or putting a cover letter with it.

5. Negotiation

Level 2 negotiation techniques Mediation- required in many districts. Consider having attorneys attend and have a stipulation of

settlement circulated prior to mediation. Settlement conferences- both attorneys and both clients, meet

at an office and try to work it out. This is far more effective for an initial divorce than any subsequent

modification actions as both parties will probably want the case to be over.

Judge-led settlement conference- this varies from district to district.

6.a. Resolution- Settlement

If you have utilized negotiating techniques that have led to settlement, get it finalized right away.

Even sitting on an agreement overnight can mean the agreement will fall through.

Be careful in your drafting. Learn from your experiences in contempt cases and modifications.

Practice tip- if you use forms or re-use stipulation language, make sure that it is a blank document and has no names in it. It can be easy to miss these changes when you are down to the wire on a settlement.

6.a. Resolution- Settlement

Set parameters for yourself for settlement and stick to them.

I like to tell clients that I want to know whether their case will likely settle or go to trial by about four months from the trial date. This is padded as I really only need about two months to get ready for most trials, but it helps them stay on task.

Some clients vastly prefer to put their head in the sand and it can be easy not to look at a case if a client isn’t bothering you.

Don’t mistake their lack of contact for intent to agree.

6.a. Resolution- Settlement

BUT- You are dealing with people and families, not insurance companies, and this doesn’t always work. Still, try to make last minute settlements an exception, not the rule.

Request trial retainers by a certain date and use that as a tickler to check in on how a client wants to proceed.

Don’t avoid trying to settle just because a case is contentious- some of the most contentious cases do settle. There is a difference between the chatter of disagreement and real, fundamental disagreement.

6.b. Resolution-Trial

This could be a presentation all of its own. But here are some tips: Some cases must be tried. Get a retainer. Do not be afraid to try a

case. Prepare well in advance. Create a checklist that you use in every case

and follow it. Go over everything again and again. Knowing the case like the back

of your hand will be your most powerful tool at trial. This enables you to maximize your presentation.

Be well organized: use trial binders and sub-dividers. Don’t miss deadlines. Stick to only essential witnesses and only ask them what they need to

add to the relevant issues. Ensure that your client knows that his/her credibility is the most

important thing about the trial.

6.b. Resolution-Trial

Instruct your client about body language/sighing/furious whispering.

Manage your time: I tell my clients that if the biggest deal to them is custody, I will spend the bulk of our time on that. If they only care a little about the retirement accounts, I will spend relatively little time on that.

Make sure you are utilizing exhibit binders. Piles of papers that get disorganized are distracting.

Practice tip- explain to your client what to expect after the trial and prepare them for post-trial deadlines.

7. Post-Decree

Consider available post-trial motions Consider appealing adverse rulings (30 days to file notice

of appeal). Figure out whether you have to do anything pursuant to

the decree. Do everything you are supposed to do: Deeds Qualified Domestic Relations Orders Income withholding Orders, etc.

Make sure your client understands the ruling. Tell them to pay their court costs. If you don’t, they will

be mad at you when they try to register their car and are told they can’t.

7. Post-Decree

Consider withdrawing from cases when you’ve completed the case. This prevents you from being noticed on future contempt filings, modifications, etc.

Return photos, tax returns, etc. to client. Learn from your experiences and change how you do

things in the next case. Ask your clients for constructive feedback. We are in

a service industry and should be striving to provide satisfactory service to our clients.

A final note…

Family law is stressful. No one going through a divorce is happy to spend thousands of dollars on your services.

Remember, the clients have created their own circumstances. It was not you who locked the other spouse out of the house/said something mean to the kids/etc.

Keep this in mind when you are talking to the opposing counsel. Fight zealously for your client but try not to take on the controversies personally.

Figure out what the legal issues are and make the case about that. Keep it professional, not personal.

Don’t do it if you hate it.