A lesson in the rules of civil procedure when a spouse does not want a divorce

Mary Zambreno Iowa Family Law Dickinson Law Des Moines Iowa

Posted on 04/13/2016 at 12:00 AM by Mary Zambreno

What happens when one spouse wants the divorce while the other spouse does not? Can the hesitant spouse keep the divorce from happening simply by ignoring pleadings and letters from the first spouse’s attorney?

The spouse requesting the divorce needs to ensure that the hesitant spouse is served with the Original Notice and the Petition for Dissolution of Marriage. Rule 1.302 of the Iowa Rules of Civil Procedure provides that a “notice to the …respondent…against whom an action has been filed shall be served in the form and manner provided by this rule. This notice shall be called the original notice.” The rule further provides what language must be contained in the Original Notice, such as the name of the court and the parties, contact information for the attorney, etc. (Rule 1.302(1)). The rule goes on to discuss other requirements for the Original Notice such as that it has to be signed by the clerk and under seal of the court (Rule 1.302(2)) and how to go about effectuating service (Rule 1.302(4)).

Perhaps more importantly, however, the Original Notice “shall also state that if the…respondent…fails to move or answer, judgment by default may be rendered for the relief demanded in the petition.” That is, once service of process upon the hesitant spouse has been duly and properly effectuated, his or her failure to answer could lead to an award of a default judgment against him or her. This can be accomplished by filing an application for entry of default under rule 1.972 of the Iowa Rules of Civil Procedure.

So a spouse – under Iowa rules – cannot be made to stay in a marriage just because the other spouse refuses to participate in the litigation.

Recently, the Iowa Appellate Court published a case titled In re Marriage of Duran wherein a default dissolution decree was awarded. In the Duran case, the parties had three children and by the time the wife petitioned for a divorce, the husband was living in Ohio.  The husband filed an answer to the divorce petition, but his attorney withdrew prior to trial based on difficulty communicating with the client. The husband did not appear for trial nor did he retain new counsel to appear on his behalf.

On appeal, the husband claimed that he did not know that his attorney had withdrawn nor had he received notice of the trial date. The Court did not find that argument credible, noting that the trial date had been obtained six months prior and three months before his former lawyer filed her notice to withdraw. In that time, she was still actively communicating with the husband.

The default judgment awarded in this case was substantial – sole custody of the children, child support in the amount of $4,983.33 per month, and a property division that included the award of two residences, two vehicles, and a hefty cash property settlement payout to the wife. When the husband appealed the child support award, the Court noted that he “could have but did not refute this testimony. Because his non-participation was the reason the court lacked sufficient information to calculate child support under the guidelines, he should not be heard to complain when the court imposed the temporary amount to which he stipulated.”

The moral of this story? You mustn’t bury your head in the sand when a divorce petition comes your way. The risk is that the resulting default judgment may not be particularly desirable to you.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

Categories: Family Law, Mary Zambreno

 

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