This question is a frequent flyer when it comes to dissolution and child custody cases. Everyone has an opinion or a belief they've garnered from a friend of a friend who lost custody of a teenager because the child testified. Nearly every time someone comes to me with what they believe to be the "magic number," they're wrong.

The correct answer in the state of Iowa is that there is no magic number. There is no cutoff or minimum age for a child to decide which parent with whom he or she wants to live. Or, as a judge put it recently when a self-represented litigant asked this question of them during a hearing, "a child cannot choose until they are 18."

Iowa Code 598.41(3) provides a lengthy list of factors for the Court to consider when deciding what custody arrangement is appropriate. The factor in subsection (f) states that the Court should consider "[w]hether the custody arrangement is in accord with the child's wishes or whether the child has strong opposition, taking into consideration the child's age and maturity" when deciding what is in the child's best interests.

The case law expands upon that factor, giving different considerations for the Court in deciding how much weight to attribute to a given child's statement of where they wish to live. A child's preference is not controlling, but it is important. The Court considers the child's age and educational level, the strength of the preference, the intellectual and emotional makeup of the child, relationships with family members, the reasons for the decision, the advisability of recognizing the preference and the realization that the court cannot be aware of all the factors that influence the child's decision. See In re Marriage of Ellerbroek, 377 N.W.2d 257, 258-59 (Iowa Ct. App. 1985).

Each case is going to require specific analysis, which is more complicated than something you will find in a blog post on an attorney's website. If you are interested in establishing or modifying child custody based on your child's wishes, contact us to schedule your initial consultation. We would be happy to discuss these matters with you.

You have worked hard and built a life with your spouse, and you are interested in protecting the fruits of your labor. Let's call it your nest -- all of those things that you hold dear. You've heard that your spouse will get everything if you die without a will, so you ask the question. What's the big deal? Why do I need a will in Iowa if I am married?

This is a great question, and one that we hear often. And to answer it, we need to look at what happens if you DON'T have a will in Iowa when you pass away.

This is called intestacy. Under Iowa's intestacy statutes (Iowa Code §§ 633.211-633.226) when you die without a will your property will pass according to the law -- regardless of your wishes. The law provides that if you are married at the time of your death and have no children, or if the only children you have are with your surviving spouse, your surviving spouse receives 100% of your estate. This changes if you have children from a prior relationship. If you are unmarried and have children, your entire estate will go to those surviving children equally. There is  a long complicated list of relatives that your property goes to if you do not have a spouse or children, and if none of those relatives survive you then your property goes to the State of Iowa.

So, why would you want a will when you're already married? There are a number of reasons.

1. You select the executor or personal representative in your will, not the Court.
2. You determine how you want your property to be distributed. This is especially beneficial if your wishes do not exactly match what the Iowa Code provides in the event that you die intestate. However, there are provisions that protect your surviving spouse from being disinherited entirely.
3. What happens if you and your spouse die at the same time? Who will take care of your minor children? Who will be the trustee to manage their funds? A great benefit of a will is the ability to name those potential guardians and trustees. You are best equipped to determine the best person or people to provide care for your children if you pass away.
4. What happens if you have children from a previous marriage that are not the children of your current spouse? Under the intestacy statutes, your surviving spouse would receive $50,000 plus one-half of your remaining estate. The other half of your remaining estate would then be divided equally among your heirs.

There are a lot of great resources out there to help you explore estate planning, but nothing beats sitting down with an attorney and discussing your options. Ask us today how we can assist you in planning for your family's future and protecting your nest!