No Fault Divorce

An editorial  in the Huffington Post, written by Micki McWade, a Collaborative Divorce Coach, Psychotherapist, Author and Parent Educator and Collaborative Trainer, addresses the issue of when one spouse has the desire to obtain a divorce and the other does not.  McWade suggests that only very rarely are divorces mutual decisions made by couples, and that it is much more likely that one person in the relationship desires a change.  The degree to which the non-consenting spouse resists can vary greatly however.

When one spouse wants to slow the divorce process, there are many avenues they can use to do so, however, all will most likely cause legal fees to skyrocket and their marital resources to diminish.  If there are children involved, this can cost them more than their financial security, but also their children’s.  It may also cause much more animosity throughout the divorce process which would also be unfortunate for any children involved.

Salvaging a Relationship Gone Bad

In her article, McWade addresses many of the emotional issues that are involved in a relationship where one party wants to divorce and the other does not.  She believes that if one party has already decided they want to divorce and do not want to make efforts to salvage the relationship, there is very little the other spouse can do to change their minds.  McWade suggests that the divorce-minded party may have already been in the divorce “state of mind” for a length of time.  Although the idea of a divorce may be shocking or overwhelming to the other party, it may be long overdue for the initiating spouse.

Iowa Divorce (Dissolution) Law

Iowa Divorce Conciliation Efforts and Waiting Periods

In her article, McWade also touches upon something that is reflected in Iowa divorce (or officially called, dissolution) law.  Even if one party resists in a divorce, if the other party desires a divorce, they will receive one.  In Iowa, a judge may require parties to participate in conciliation efforts for sixty days.  Also, there is a waiting period of ninety days between the initial dissolution petition and when the court can enter a final dissolution decree.  Although there are circumstances that allow a judge to waive the waiting period, it is generally enforced.

Iowa No-Fault Divorce

Additionally, Iowa is a “no-fault” divorce state.  This means that a spouse who wishes to obtain a divorce has no requirement to blame their spouse for any wrongdoing.  This allows the divorce to be (hopefully) less contentious and be completed more quickly.  This does not mean issues of wrongdoing will not arise in the divorce, especially if child custody issues are involved, however, it does mean that the petitioning party does not have to “accuse” their spouse of anything specific to obtain a divorce.

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Actress Katie Holmes filed for divorce from her husband of 5 years, Tom Cruise, last Thursday.   The pair met and married quickly and have been the subject of Hollywood speculation for the duration of their relationship.  Holmes, 33, has one 6 year old daughter, Suri, with Cruise.  Cruise has two adopted children from a previous marriage with actress Nicole Kidman.  It has been reported that Cruise was surprised to learn of Holmes’ filing.  This is the end of Cruise’s 3rd marriage, while Holmes’ first.

Fault vs. No Fault Divorce

Holmes filed for divorce in the state of New York.  There has been much speculation as to her motivation for filing in a “fault” divorce state.  In New York and other states that allow a petitioner to file for divorce on fault-based grounds.  In New York, you may file for a fault-based divorce based on several  grounds:

  • Cruel and Inhuman Treatment
    • Physical, verbal or emotional abuse that endangers your physical or mental well being.
    • The judge will look for occurrences in the last 5 years.
  • Abandonment
    • Your spouse must have abandoned you for a period of one or more years.
    • “Constructive Abandonment” is applicable if your spouse has refused to engage in sexual relations with you for a period of at least one year.
  • Three Consecutive Year Imprisonment
    • The imprisonment must begin after the marriage and last for a period of 3 consecutive years.
  • Adultery
    • Must be able to show that your spouse committed adultery during the marriage, which can prove to be difficult.

In Holmes’ and Cruise’s case, there is, of course, much speculation as to why Holmes would have filed in New York.  Many believe that Cruise’s intense commitment to Scientology may have played a role in their split.  In the petition, Holmes has claimed that the couple is unable to continue the marriage because of irreconcilable differences.  Cruise is expected to file a response in New York requesting the proceedings be moved to California.

Cruise and Holmes have a pre-nuptial agreement, so financial considerations will most likely not be a major issue in their divorce.  Holmes could challenge the agreement, however, the main issue will almost certainly be custody of their daughter.  Holmes has filed for sole custody of Suri along with an “appropriate” child support amount.

Iowa:  a No Fault Divorce State

Iowa is considered a no-fault divorce state.  The Iowa Code addresses dissolution of marriage in Chapter 598.

Officially called “dissolution of marriage” in Iowa, a divorce will be granted when there is evidence of a breakdown of the relationship with no likelihood it can be preserved.  There is no requirement for a spouse to place blame on the other spouse.  After filing for dissolution, a judge may require the couple to participate in conciliation efforts for a period of up to 60 days.  For example, Polk county requires the couple to participate in mediation.  Iowa Code section 598.7 addresses this requirement.  Also, there is a 90 day waiting period in Iowa from the time of filing until a judge can issue a final decree, although this requirement may be waived under certain circumstances.

It remains to be seen just how nasty Tom Cruise and Katie Holme’s divorce will be, however, we can be assured that whatever happens, there will be intense media coverage of every detail!

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