Andrew B. Howie, who has been practicing a mixture of criminal and civil law since 1996, answered our questions about Iowa law. He is an author of the Family Law Manual published by the Iowa State Bar Association, has argued appeals in Iowa and federal courts, and has been recognized as a "Super Lawyer." See sagwlaw.com for a full biography.
Howie goes to a "final trial" only about three times per year despite handling close to 150 family cases per year. The litigants are referred to in Iowa as "petitioner" and "respondent" and Howie represents a roughly 50/50 mixture of men and women. "Assuming no unnecessary delays," said Howie, "a case will go from petition to trial in 8-10 months."
As in other states, a divorce lawsuit can be effectively won at a brief temporary hearing, with one party winning the house, the children, and a cash flow stream. Do these feature witnesses and cross-examination? "It depends on the judge's discretion whether or not there will be evidence at a temporary hearing," said Howie. "By statute it is supposed to be only via affidavit, but it depends on the county." How long is a typical hearing? "It could be 30 minutes." Does Iowa tend to follow the old Massachusetts saying that "Nothing is more permanent than a temporary order"? "It certainly helps to win at temporary hearing," responded Howie, "but it’s not supposed to be conclusive. That's the difference between what's on the books and reality. Pragmatically what is ordered at the temporary hearing with respect to custody is often what will be ordered after a final trial." Howie notes that judges who want to avoid one parent gaining an advantage at the temporary order stage will grant shared physical custody.
Will judges leave litigants together in the same house? "Rarely," said Howie. "A party can simply say 'I can't live with him [or her] anymore' and get exclusive use of the house." In deciding who gets the house, Howie says "Courts favor the person who gets temporary physical care of the children. However, kicking a spouse out of the house is not without risk. A judge will not make a spouse homeless who cannot afford his or her own housing. So, if the greater-income-earning spouse wants to kick the non-incoming spouse out of the house, that income-earning spouse is likely to pay the other temporary alimony."
Can the process be shortcut by a person alleging abuse and going into the domestic violence system? "Oh sure," responded Howie. "Too often you see a person alleging abuse in order to get the house, though the only thing that carries the day is physical abuse." Does a litigant need to have proof beyond his or her testimony? "No," said Howie. "It can just be a party testifying. However, Iowa judges are keenly aware of parties exaggerating abuse claims and can mete severe penalties, including taking custody away, when a parent trumps-up abuse claims in an attempt to gain advantage in a custody case. So, a person claiming 'he beats me' for the first time in a divorce setting with no prior complaints, arrests, criminal charges, or medical records, will have a hard time convincing a judge of the validity of the abuse claims."
Iowa allows a parent to collect child support until a child turns 18 or graduates from high school (but no later than age 19). By statute, a court can order expenses for "post-secondary education," including college room, board, tuition, and other reasonable expenses. The guidelines apply to income up to a combined parental income of $300,000 per year after taxes, i.e., about $500,000 in pre-tax income. The top of the guidelines, corresponding to that $500,000 pre-tax income level, is $31,176. This makes Iowa much less lucrative for child support plaintiffs than neighboring Illinois, where that $300,000 per year in after-tax income would yield a revenue stream of $60,000 per year for a child support plaintiff with one child. And where a Massachusetts defendant earning $160,000 per year after taxes would pay $40,000 per year in child support for a single child, in Iowa the same defendant would pay just $21,300. On the other hand, Iowa can be a more lucrative environment for a child support plaintiff than neighboring Minnesota, with is $22,600 per year cap on child support.
What if the combined parental income is more than $300,000 per year after taxes? "Above that it is just discretion of the trial court judge," said Howie. "One judge will cap child support while another will extrapolate." Note that the top of the guidelines reflect a multiplier of 7 percent of after-tax income and thus extrapolation might be at rate of 7 percent.
Iowa operates what attorneys in other states call a "days for dollars" system:
Rule 9.9 Extraordinary visitation credit. If the noncustodial parent’s court-ordered visitation
exceeds 127 days per year, the noncustodial parent shall receive a credit to the noncustodial parent’s share of the basic support obligation in accordance with the following table:
167 or more but less than equally shared physical care 25%
For the purposes of this credit, “days” means overnights spent caring for the child. Failure to exercise court-ordered visitation may be a basis for modification.
Consistent with what we were told by attorneys in other states, Howie says that this leads to litigation over a child's schedule. "It is unfortunate in this day and age, but money talks."
In addition to the amounts in the table, judges can order a parent to pay for daycare and health insurance.
Howie says that consumers can use the state-published guidelines and forms to make a reasonably accurate calculation of child support.
Prenuptial agreements in Iowa are more constrained than in many states: "Provisions regarding spousal support or anything related to children are void," said Howie. "Prenups deal only with property, either in the context of a divorce or in case of death."
Howie is more sanguine about most of our interviewees regarding appeals. "I do a lot of family law appeals," he said. What good is winning if the appeals court just sends it back to the trial judge who can give the same answer but with different reasoning, as we were told was common in other states? "Appellate courts have the ability to modify a decree," he responded.
The average hourly wage in Iowa is $19.02 per hour. Census 2014 data show than median income for a 22-36-year-old college-educated woman working full-time is $38,000 per year ($29,119 after taxes). The corresponding man earns $67,000 per year ($47,535 after taxes). Attending the University of Iowa for four years will cost $74,084. Iowa collects 9.2 percent of residents' income to run state and local government (compare to a national average of 9.9 percent; source: Tax Foundation).
The average annual cost of child care is $8,859 for an infant and $7,551 for a four-year-old. The total cost of child care from age 0 through 12 is about $52,944 in commercial settings or $44,211 in a family care setting.
The male college graduate will have an after-tax spending power of $591,406 after 14 years of working (14 years of income minus taxes and the cost of college). After adjusting for the USDA-estimated costs of raising a child, he would be financially better off collecting child support when that support is $3,488 per month or more. This is above the top ($2,598/month) of the guidelines and would require judicial discretion to obtain. With two children from two different mothers, however, he could have an after-tax spending power larger than from going to college and work if each mother paid $2,120 per month, which is possible when each mother takes home $218,412 per year.
The female college graduate will have an after-tax spending power of $333,582 over the same time period. She would be better off collecting child support when that exceeds $2,294 per month. This would require finding a father earning at least $247,812 per year after tax. If she is suing two fathers, however, she is financially better off compared to the college/work case when she can get $1,522 per month from each one. This should be possible within the guidelines if each defendant earns at least $127,212 per year after tax.
Taking care of a foster child is not as lucrative as taking care of your own child in Iowa. The state pays foster parents roughly $5,800 per year to care for a foster child; one's own child can yield $31,176 in tax-free child support at the top of the guidelines.
Census data show that 93 percent of Iowans collecting child support are woman, suggesting that women typically prevail in custody disputes.
A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
"Iowa gives tremendous weight to the person who was the historical primary caregiver," said Howie. "Dad has a leg up because he was home. Mom will say it was really the nanny. It is tough to say who wins."
What about for decision-making? "Joint legal custody is the standard and it is presumed."
What if the father is asking for 50/50 shared parenting and the mother wants to be the primary parent? Can she blow up the possibility of shared parenting by simply refusing, as would work in some states, or generating conflict, as in others? "You can get 10 different answers from 10 judges on whether parties not agreeing to shared care will block it. And I have had many cases where the judge says 'I think your strife is caused only by the divorce and that you should be able to get along in the long run.' Judges are ordering shared care now in about one third of custody decisions."
Why the uncertainty regarding shared care? "It was essentially revolutionized in Iowa in 2004 when the statute was changed to say 'shared care can and should be considered.'"
Would there be a Guardian ad litem or a custody evaluator? "It depends on the level of acrimony between the parties and their ability to pay."
Suppose that this case falls into the two-thirds category? "Mom might have the edge." Would the child's schedule then be based on the fact that the mother has to leave for work very early in the morning but can make it home in time for after-school care? "No," said Howie. "The standard is not to build visitation around a parent's work schedule because a job schedule can change quickly while it is very difficult to modify a court order. The default for the father is alternating weekends, Friday to Sunday, and two to four weeks in the summer."
Under what circumstances could the original custody award, made for a one-year-old, be modified? "You have to show a 'substantial, material, and permanent change' before a court can modify a schedule," says Howie. Could it be the case that the child growing up from age 1 to age 12 would be such a change? "Predictable changes, such as kids getting older, alone are not enough."
At what age does the child get a voice? "There is no magic age," responded Howie. "The statute says that a child's preference must be considered. That means a court must receive a child's testimony but need not give it any weight. I had a case where a girl of 8 testified and the court believed her. By contrast, I put a 17-year-old on the stand and the court didn't believe a word she said."
How much might these people spend on legal fees through trial? Howie estimated only about $35,000 per side, much less than in some other states. What if the father can't afford that? "She can be ordered to pay his fees."
What about property division? "Iowa is an equitable property state," said Howie. "So the starting point is that any and all property can be divided by the court with the exception of gifts and inheritances." Can he get half of her pre-marital savings then? "No. The length of marriage is one of the heaviest factors. A judge could do that but would have to explain why it was based on equitable principles. Most likely the parties would walk out with what they brought in with marital property divided 50/50."
How about alimony? "There is no formula or custom for the amount. It is just based on her ability to pay and his need. There are many factors and it is all subject to judicial discretion and attorney argument. I might tell him to expect 6-18 months of alimony, but in theory the sky's the limit. Lawyers love arguing alimony cases because we never know what the judge is doing to do."
A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
What if these people both come to court demanding to be made the primary parent, can the judge order 50/50 custody despite neither party asking for it? "Yes," said Howie, "but it is highly unlikely. Most judges believe that if both ask for primary then the judge will have to pick. This is the bread and butter case for attorneys in Iowa. It will generate a lot of fees and result in a 3-5 day trial."
What are the financial stakes? The parents' combined net income is about $95,000 per year or $7,917 per month. Plugged into the table that yields a support obligation of $2,405 for four children. Divide by 2 because the parents have equal incomes. Then multiply by 12 months and it works out to the loser parent paying the winner $14,430 per year ($216,450 over a 15-year period).
An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
What happens if the father asks for 50/50 shared parenting and the mother wants sole physical custody? "Dad would have a hard case," said Howie. "She will continue to be primary."
Can he work his way up to 50/50 as the kids get older? "It is tough because courts want stability for the children," responded Howie. "Essentially it is possible only if she agrees."
Under the Iowa guidelines, the mother would be entitled to about $30,648 in tax-free child support, i.e., not enough to continue her pre-marital lifestyle. Can she get enough alimony to make up the difference? "Her young age and good health are huge detractors to her getting a long-term alimony award," said Howie. "Five to ten years is likely." How much would it be? "It is the Wild West in terms of the amount." Can she increase her likely award by indulging in a lavish lifestyle for a year or two prior to filing the lawsuit? "Pre-divorce planning to establish a higher baseline lifestyle can be effective," answered Howie.
What about property division? "She could get an unequal share due to her lower earning capacity," said Howie. "Perhaps 80/20, but the amount of child support paid, alimony paid, attorney fees paid, will affect the property distribution," Howie explained: “Iowa courts never look at one issue in isolation. For example, who gets the house will affect who gets the kids, will affect who receives child support and how much, will affect how much alimony is paid, etc."
A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
"A petitioner in Iowa can definitely exploit the young age of a child," said Howie. "It is rare for a judge to take an infant away from the mother. Female petitioners have a significant advantage for the first five years of a child's life. Once the kids start school then the playing field levels out to some extent." Under what circumstances could a father prevail in a custody lawsuit involving a young child? "He would have to prove that the mom is unfit in some way."
What would the young child's schedule look like? "It depends on the judge as to whether or not the child can spend overnight with the father," said Howie. "What you're dealing with more is the mom. Dads always want a lot of visitation and the mothers of newborns never want to give it." What about the lawyer who told us that "You'll never see more breastfeeding mothers than among child support plaintiffs"? Howie responded that "Breastfeeding is a strong argument for mom to restrict overnights."
How about the father's pre-marital savings of $2 million? "She is highly unlikely to get a share," said Howie. "She would have to show that she dropped out of college, gave up her apartment, and otherwise incurred some costs to enter into the marriage." The mother will, however, get a share of the pre-marital savings through enhanced child support payments. Based on the doctor's salary he would pay her $21,648 per year. Depending on the rate of inflation at the time of the lawsuit the interest or dividend yield on the $2 million could increase her child support entitlement considerably.
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
"I see these cases all the time," said Howie. "Oftentimes it will be a trucker who stops in a truck stop on the way through Iowa. The mother can sue in Iowa because she and the child live here. It takes very little to get personal jurisdiction."
Does the mother need to hire an attorney to get child support? "No," responded Howie. "The Child Support Recovery Unit of the Iowa Department of Human Services will do it all for her."
If the doctor files his taxes as a single person, his net pay is about $13,747 per month. Under the Iowa guidelines the mother will collect $1,801 per month in child support, a tax-free $21,648 per year.
How long can she wait before suing and still collect back to the child's birth? "The statute of limitations is age 19, but back support is discretionary and not based on the guidelines. She can also get medical expenses and attorney's fees." Do people actually wait that long? "I had a case where the mother filed a day before the child's 19th birthday," said Howie.
What if she marries a rich person? Will that affect her child support revenue? "Ah," said Howie, "the Bill Gates scenario. It is highly unlikely that it would affect her child support order. However, the rules bend, they don't break. In the court's discretion if it would be patently unfair to not to consider the new partner's income there might be a deviation. And certainly she can't get more child support if she quits her job due to a marriage to a wealthy partner."
"We call it 'relocation'," says Howie. "These are difficult cases for dads to win. Iowa is very much in favor of parents having the right to move with a child. The default rule is that if a custodial parent wants to move he or she can do it." Does that mean that fathers don't bother to fight these cases? "No," said Howie. The noncustodial parent can put up roadblocks and have a big trial. That was one of my three cases that went to trial last year. Mom moved from Des Moines to St. Louis, a five-hour one-way drive. I represented Mom. The reason for the move was that her new husband got a new job. It was for the betterment of the family. Dad would have had to prove that mom was unfit. He didn't, and he lost."
Iowa assigns different cash values to different children from the same parent. In figuring "gross income", amounts for "prior obligation of child support" are excluded. Thus the first person to sue gets the most cash and each subsequent plaintiff gets less. Children of an intact marriage have a lower cash value than extramarital children. Rule 9.8 provides that when suing a married defendant, for example, it is possible to deduct a maximum of $800 per month for a single child living in his or her household. I.e., the child of the marriage has an entitlement to $800 per month in support. But a child support plaintiff can get up to $2,598 per month for one child, in theory to be spent on that extramarital child.
As in most other states, Iowa provides financial incentives to have children with multiple co-parents. At the top of the guidelines, for example, three children with one co-parent can yield $887,976 over 18 years compared to three children with three different co-parents where the revenue is a tax-free $1.68 million.
Asked what he would do if he could wave a magic wand, Howie said "Have everybody who wants to get married enter into a prenuptial agreement."
Asked what he expects to see change over the next five years in Iowa, Howie said "Alimony guidelines analogous to our child support guidelines."
The bedrock of the Iowa system is doing exactly what Linda Nielsen, the psychology professor interviewed in the Citizens and Legislators chapter, says that courts should not do, i.e., pick a primary parent. Based on our interviews with attorneys in other jurisdictions, this is the custody system that creates the most litigation.
By moving away from the "mom always wins" custom into a "shared parenting might be available" world, Iowa very likely has created yet more litigation.
By making unlimited child support available by judicial discretion, Iowa encourages litigation among high-income parents. This is mitigated to some extent by child support guidelines that cover, and therefore lend certainty to, some reasonably high-income scenarios.
By giving judges the ability to order a parent to pay for college, if Iowa is like other jurisdictions it is reducing the tendency of parents to cooperate voluntarily (since there is no need to compromise to get something that can be obtained via court order).
Iowa operates to some extent under a de facto "tender years" presumption, in which a mother is more likely to win custody when a child is young.