Iowa Legal Separation Defined
The state of Iowa recognizes two types of separation: physical and legal. Physical separation refers to the act of spouses living apart in different residences, which may or may not include the distribution of assets and/or custody of children. Physical separation, in and of itself, does not preclude a court from imposing enforcement of any or all marital obligations at any time in the future, nor does the fact that spouses have lived apart for an extended period of time act as a bar to filing for divorce. Physical separation, therefore, has little effect on the legal status of the relationship between spouses. Legal separation, however, does have a more permanent effect on the legal status of the marriage.
Unlike physical separation, legal separation means that the spouses remain married, but their marital status formally changes . They are no longer living together and the issue of property division – and potentially the issue of child custody, support and visitation as well – is resolved, in much the same way as it would be after a divorce. The key difference between legal separation and divorce is that, upon obtaining a legal separation, the parties remain married. Accordingly, the legal status of the relationship will be taken into account in any subsequent property division proceeding and the terms of the separation decree can be changed by a subsequent court order. In other words, while your separated spouse is still your spouse – legally, at least, if not physically – your obligations with respect to that person may be strictly determined by the terms of your separation decree.
Iowa Legal Separation Process Requirements
Legal separation in Iowa is not obtained until a court enters an order for separation. The process for legal separation is generally the same as for divorce, except that the petition for separation has to also ask for a decree of separation, rather than just a decree of divorce. Any provision of Iowa law that applies to divorce proceedings also apply to legal separation proceedings.
Just as divorcing couples must meet certain requirements to obtain a divorce, couples seeking separation must also satisfy the residency requirement. A couple must live in Iowa for one year before filing for separation, and one person must have resided in the county where they wish to file for at least 90 days immediately before filing. Unlike divorces, couples seeking separation do not have to wait for the court to schedule a hearing for their case. Any parenting time or child support issues can be presented with the initial pleading, and the couple can apply for temporary orders if necessary.
The filing spouse must serve the other spouse – A couple can only obtain a decree of legal separation by filing a petition for the judgment with the Iowa district court. The spouse who files the petition must also serve a copy of it on the responding spouse. The responding spouse must file a written response with the district court in order to participate in any court hearings.
Filing for Iowa Separation
Filing for legal separation is similar to the process of filing for divorce. Unless there is a compelling reason for an alternative, it should be filed in the county where at least one spouse resides. The first step is to file a "Petition for Separate Maintenance" at the courthouse, followed by a notice to the other spouse and a city-wide posting. If neither party contests the proceeding, which is not uncommon, the case can be settled and granted within a few months. If there are disagreements on any issues or the other party did not respond to the petition, it can take up to two years for the case to be granted if there are children involved; without children, it is likely to take six months or less to finalize.
Although the same issues are addressed in a legal separation as in a divorce, the biggest difference between the two is that divorce ends the marriage and legal separation continues the marriage while giving the parties a respite from the demands of daily life.
The legal separation process begins with the initial filing of the petition and notice and can include several hearings and potentially a final trial. During this time, the couple can live apart but is not free to marry anyone else or cohabitate with another person. The couple can also work out how to divide property and debt but the parties remain obligated to one another for debts contracted during the separation unless they release each other in a written agreement. A legal separation includes provisions for how to handle any issues, such as medical debts, retirement funds or assets accumulated after the separation.
Binding vs Separating Agreement
Most separation agreements will also have an agreement on what happens with the house and what happens with the retirement accounts. The house can be divided in a number of ways. Sometimes the house will go to the spouse with majority custody of the children until the children turn 18, and then it will be sold (or bought out if the parents have a strong desire for the kids to remain in the house after high school graduation). Sometimes the house is sold and its equity is divided before – or as part of – the divorce. Sometimes one party is awarded the house and the other party is awarded an interest in a retirement account to offset the equity in the house if the house is going to be kept by one of the spouses.
Retirement accounts also can be divided in a number of different ways. Sometimes retirement accounts are divided and a portion of one spouse’s retirement account is paid out into another spouse’s retirement account. Other times, sometimes a spouse will keep the bulk of the retirement account and the other spouse will be given an equalizing amount of other property – the equivalent of what they would have received if the retirement account was divided.
A concern that sometimes arises in marriages of very long duration, that may be relevant here, is the possible application of Iowa Code section 598.20A right of first refusal. Iowa Code section 598.20A is an Iowa law that allows a spouse to have first right of refusal to purchase a marital asset before that property is conveyed to a third party. Specifically, 598.20A states: "A spouse who is awarded or has a real property interest in the homestead, a personal residence, or a motor vehicle in a decree of dissolution of marriage filed pursuant to chapter 598 is granted the right of first refusal to purchase the property against all other purchasers unless otherwise provided for in the decree of dissolution of marriage." Section 598.20A is a good provision to include in a property settlement agreement to ensure that the property the spouses are retaining will not be sold out from under the spouse who was awarded the property.
Differences Between Separation vs Divorce
Every situation is unique, and, as lawyers, our job is to advise our clients in consideration of their goals and objectives. If you do not want to process a divorce, you can file a petition for legal separation, which is a similar process to divorce. The law does not generally give any preferential treatment to legal separations – the law treats them similarly to divorces, so the outcomes are generally similar.
Occasionally there are reasons why people pursue legal separation rather than divorce. Sometimes people – either by choice or as a result of immigration status – cannot get married again in the future, such as under religious beliefs. In Iowa, there is no waiting period after a legal separation to get married to someone else. If your religious beliefs prevent you from marrying more than once , you may want to consider legal separation.
Sometimes people pursue legal separation rather than divorce for health insurance reasons. If your spouse provides health insurance through his or her employment and pays the premiums, by law you cannot be removed from the plan during the separation proceedings. However, if your spouse files for divorce, then the court is required to provide an opportunity for you to be temporarily removed from the insurance plan so that coverage can be found elsewhere. After the divorce is final, the insurance company cannot cover you after the divorce is final. If you expect to be permanently removed from your spouse’s insurance within the next 18 months or so, you may want to consider legal separation, so that you can take advantage of the time to secure coverage through your employer or through the Affordable Care Act when it comes back into effect.
Breakdown of Child Support Obligation Amounts
Just as in divorce, Iowa law requires parents to address all child custody issues during a legal separation. Parents separated under the legal separation decree will share custody of their children in the same way as if the decree had been a divorce agreement. As a result, the physical custody agreement and joint legal custody will have a similar impact as in a divorce situation. In most cases, one parent will serve as the custodial parent, with the other parent having visitation rights and sharing legal custody.
As in any situation involving separation, parents are expected to provide what is in the best interest of the child. That said, separate parents can deviate from Iowa’s physical care presumption if their separation requires it. When the presumption is not met, parents can still allocate parenting time, physical care, and guardianship.
Of course, parents in Iowa must also address child support just as they would in a divorce setting. The guidelines for child support are the same in a separation as they are in a divorce, and the initial support order may be adjusted according to either party’s circumstances.
What Does Legal Separation Cost?
Legal separation procedures in Iowa involve filing a petition, which can cost $150.00 plus the costs of notarization and other services. The court will also require a filing fee of about $265 to be paid when the court action is filed. In addition to these fees, some clerks of court may charge a small indexing fee (for filing certificates of marriage or domestic partnership) as well as a fee for delivering the judgment to the county recorder’s office (approximately $50).
Attorney’s fees vary depending on the amount of work involved in a case, but at the high end you can expect to pay around $5,000, exclusive of litigation costs. There may be additional retainer fees your attorney charges as well.
Once the petition has been filed, the court will issue a "waiver of waiting period." After 30 days, if the petitioner has filed the proper financial disclosures, tax returns, and related proofs, an action for legal separation is defaulted in the petitioner’s favor. Or, if both parties have joined in a petition for legal separation, the action will be granted in 30 days.
No matter which way the separation proceedings begin (petitioner files or both parties file), the clerk will schedule a hearing for about 60 days in the future. If no problems arise and there are no disagreements over the separation requested and your financial disclosures, that hearing should involve no negative repercussions for either party.
Dissolution of Marriage from Separation
If after a legal separation spouses decide to terminate their relationship because things are not working out, the proceedings to turn the legal separation into a divorce are relatively simple. In Iowa, once a legal separation decree has been in effect for a period of one year, either spouse can convert the legal separation to a divorce. This is an uncontested divorce action and just like in a divorce action the judge will divide the property and debts as well as awarding child custody, child support, and visitation based on the best interests of the children.
A person who was lacks the finances to file for a divorce based on his or her income level may request a waiver of the filing fee. In Iowa you must have an income that is less than 125% of the federal poverty guidelines to request a waiver of the filing fee. The person requesting the waiver must complete the Affidavit of Impoverished litigant . If granted the person filing the Affidavit of Impoverished Litigant is not required to pay the court costs and fees. In this situation the court may assign the case to a family law commissioner for hearing.
Each county may impose a different amount for filing a divorce. In order to obtain the divorce the person would need to file paperwork with the county where he or she currently resides or where the legal separation was granted. The paperwork includes case filings and financial worksheets which help the judge or family law commissioner determine how the property and debts will be split. If there are children involved additional forms must be completed such as Affidavit of Financial Status and Form 120 for Child Support.
In Iowa it is a requirement to appear in front of a judge to finalize an uncontested action to convert a legal separation to a divorce.