Iowa law offers its residents two choices to end a marriage: divorce or legal separation. While both legal methods can alter your relationship, only a divorce terminates your marriage.
The divorce process starts when one party files a petition (request) for dissolution with the court. In most cases, couples can work together to settle the case before it gets contentious, but if you can’t negotiate the terms of the divorce, you can ask the court to resolve your disputes at a hearing. Once the court grants your request, both spouses are free to live as unmarried individuals, and have the option to remarry.
Legal separation (also called separate maintenance when the court orders financial support) is a remedy that allows couples to ask the court to decide divorce-related issues like custody, child support, property division and alimony, but in the end, the couple is still legally married. Both spouses may enter into contracts, acquire property or debt, or buy and sell property as individuals. However, neither may remarry without first asking the court to convert the separation into a formal divorce.
Divorce and legal separation are both expensive and time-consuming legal processes that can take an emotional toll on couples. If you’re not sure whether to pursue one remedy over the other, you may want to take a step back to evaluate your situation.
Some couples decide to try separation before divorce if there’s a chance for reconciliation, and while a divorce is permanent, legal separation allows you the option of repairing your relationship or terminating it later. Others may avoid divorce because they have a religious, social, or moral objection to the process.
Other common reasons parties choose to separate instead of divorce include:
To begin the legal separation process, you must file a motion (request) with the court in the county where at least one spouse resides. The petition should contain necessary information, including both spouse’s names and addresses, birthdays, the names and birthdates of any minor children, the date of the wedding, and the date of the separation. Additionally, you’ll need to demonstrate to the court that you meet the state’s residency requirement, meaning at least one spouse has lived in Iowa for a minimum of one year before filing.
Like divorce, your petition must include a legal reason, or grounds, before the court will grant your request. Iowa is a no-fault divorce state, meaning you only need to tell the court that there has been a breakdown in your marriage to the extent that the bonds of matrimony are destroyed. In other words, the relationship isn’t working, and there’s nothing you can do to repair it.
Iowa law requires a 90-day waiting period from the time you file to when the court can grant your request. During this period, you and your spouse should negotiate the terms of your separation. The court may require you to attend conciliation, which is court-ordered marriage counseling, for up to 60 days, to see if the there’s a chance for reconciliation. Judges will waive the counseling requirement if there’s evidence of domestic abuse. If you can’t agree on the terms, and reconciliation isn’t on the horizon, the judge will resolve any final disputes before approving your separation.
Either spouse can ask for a divorce during or after the separate maintenance process.
It’s no secret that divorces (and separations) are scary and emotional legal paths that you should only take when you’re sure it’s where you want to go. Undecided couples can participate in a trial separation, which is where you live separate and apart to reassess the marriage. In some cases, a trial separation is enough to encourage the spouses to reconcile. In others, separating for a short period might be enough to convince you that living without one another is the best choice for your family.
Typically, you can negotiate the terms orally with your spouse, including an end date for the trial, custody arrangements, and support payments. If you’d like a more formal agreement, you can put your terms and conditions in writing. However, the court doesn’t order or monitor trial separations, so if either spouse decides to ignore the agreement, the other won’t have any way to enforce it.
At the end of your trial, you will need to decide to reconcile, move forward with a legal separation, or file for divorce.
Iowa law requires couples to memorialize their agreement in writing before a judge can approve the separation. A separation agreement is a legally binding contract that contains the details of your arrangement, and should include:
The separation agreement is valid until the court terminates or modifies it. If either spouse requests a divorce after the court issues a separation agreement, the judge may incorporate it into the final judgment of divorce.
Like divorce, if your family includes minor children, the court’s only consideration is what’s best for the children. If you and your spouse can’t agree on physical and legal custody arrangements, the judge will conduct a thorough investigation before deciding how to allocate parental rights and responsibilities. The evaluation will consider each parents’ ability to provide for the children and advance their well-being now and in the future.
Additionally, the court requires both parents to attend parenting classes before the judge finalizes your separation or divorce.
If you have questions about a legal separation, you should contact a local family law attorney for advice.