At Iowa Legal Aid, we talk to new clients daily. While each person’s situation is unique, we hear many of the same concerns over and over again. Often people have been misinformed about the law, especially family law, like divorce and custody. Below is a list of common misunderstandings about family law.
Myth: “I have to file first.”
Fact: It makes no difference to the court who files for divorce or custody. The person who files this type of court case is called the “petitioner” and the other person is called the “respondent.” It has no bearing on the judge’s decision as to who is the petitioner and who is the respondent. There are some advantages to being the one who files the case, however. For instance, the person filing may file the case in the county in which the person lives. If the petitioner and respondent live in different counties, the respondent may have to travel to another county for hearings. Another advantage to being the one to file is that you know it is going to happen. As the respondent, you might not be prepared for a custody or divorce case when the other person files the case. You may not be in the most stable living environment or you may have just lost your job. Therefore, if you believe your spouse or the parent of your child may be considering filing for divorce or custody, you will want to be in the most stable situation possible.
Myth: “I can’t file the court case because I don’t know where she/he lives.”
Fact: If you don’t know where your spouse or the parent of your child lives, it does not mean that you can’t file for divorce or custody. You can submit a sworn statement to the judge explaining you have no contact information for the person and that you have taken steps to try to find him or her (such as talking to their friends or family members). The judge can then allow you to serve the other person by publishing notice of the court case in a newspaper where the case is filed. Notice must be published for three weeks in a row and then the other person has 20 days to respond to the court case. If there is no response, you can proceed.
Myth: “He won’t sign the papers.” or “She won’t give me a divorce.”
Fact: In Iowa, if only one spouse wants to get a divorce or one parent wants to have custody decided by the court, it can happen. The spouse or other parent does not have to agree. If the spouse or other parent doesn’t want to participate in the divorce or custody case, the court is still going to proceed. This is called a “default” order. Alternatively, if the spouse or other parent participates but doesn’t “sign the papers,” then the case will go to trial and a judge will make the decisions about custody, visitation, child support, and property issues.
Myth: “The other parent is going to take my child and file in another state.”
Fact: Generally speaking, only one state at a time has the power to issue a custody order. Usually the only state that has the power to make a custody decision for a child is the state where the child has lived most recently for at least 6 months. This is called the child’s “home state.” If the child has lived in Iowa for the last six months, then Iowa is the child’s home state. If your spouse or the child’s parent takes the child to another state, the other state likely won’t have the power to issue a custody order until the child has lived in that other state for six months. Where a case can be filed is part of a legal term called “jurisdiction.” Determining jurisdiction can be very complicated and very dependent on the facts of the situation. There are exceptions to the general 6-month rule. You should talk with an attorney if you have questions about where a case should be filed.
Myth: “I’ll agree to something now to get the divorce or custody case over and then I’ll just modify the order later.”
Fact: Only a court can modify an order, and the court won’t modify an order for just any reason. To modify a divorce decree or custody order, the person requesting the modification must show that there has been a substantial and material change in circumstances that happened after the order was issued. The change in circumstances is one that the court would not have considered when the order was issued and the change should be relatively permanent. Under Iowa law, a parent moving more than 150 miles away is an automatic reason to ask the court to modify the order. Examples of other possible substantial and material changes could be a parent’s drug use, abuse or neglect of the child, or a military parent going to active duty. Be aware, however, that just because you ask the court to modify the order does not mean that the order will be modified in the way you want it modified. The court still must determine what is best for the children.
If you have a question about a legal issue, be sure to talk to an attorney to make sure you haven’t been misinformed. Legal advice depends on the specific facts in your unique situation, so be sure to discuss it fully with a lawyer before making assumptions about your legal options.