In our practice, we have discovered that many people do not have a very clear idea as to the process of a Dissolution of Marriage (Divorce) case. The following is intended to be a basic primer of how the Divorce process works.
A Divorce case begins with the filing of a Petition for Dissolution of Marriage in the District Court of the county where either party lives. Iowa is a no fault State, which means no specific grounds for the Divorce need to be alleged. The Petition will usually set out how the Petitioner (the filing spouse) feels the court should settle issues such as custody of children, establishment of child support or spousal support (alimony), division of the marital assets and debts, and payment of attorney's fees and court costs. The Petition may request that some or all of these issues be dealt with on a temporary basis as well as a permanent basis.
Several other things can happen when the Petition is filed. If the parties have children, an order requiring them to attend a seminar dealing with the impact of divorce on children (Children in the Middle Program) will be filed. In some counties, including Polk County, an order requiring the parties to attend a Pretrial Conference will also be entered. A hearing on temporary issues may also be scheduled at the time the Petition is filed.
Once the Petition has been filed, a copy of that Petition along with any accompanying orders must be provided to the other spouse. This is accomplished through Service of Process in one of three ways:
First, the other spouse can simply sign a paper acknowledging the receipt of those documents. If that is not possible or the other spouse refuses to sign such an acknowledgment, a third party, usually a process server or county sheriff, can hand the other spouse the papers. Finally, in rare cases where the whereabouts of the other spouse are unknown, the court will allow under limited circumstances for the documents to be served by publication in a news paper. Service of process is important for two reasons. First, the court cannot grant a Dissolution of Marriage unless it has proof that the other spouse is aware of the Petition. Second, the service of the Petition upon the other spouse starts a mandatory 90 day waiting period which must pass before a Divorce can be granted.
Once service has been accomplished, the Respondent (non-filing spouse) must file an Answer. The Answer is similar to the Petition in that it states what the Respondent wishes to take place in the Dissolution regarding such issues as custody of children, child support, spousal support, division of assets and debts, and payment of attorney's fees and court costs. A copy of the Answer must be sent to the Petitioner's attorney. If the Respondent does not file an Answer within a specific period of time, a Divorce Decree may be granted by default.
After the Petition has been filed and served, an Answer has been filed, and the 90 day waiting period has passed, the parties may proceed to trial if they are unable to reach an agreement on all disputed issues. In the meantime, several things can occur. Either party may request a temporary order, usually dealing with custody, visitation and support of children, and sometimes with payment of household expenses. Also, either party can request information from the other using several different methods. Questions called Interrogatories can be sent requiring the other party to answer those questions under oath. A request that a party produce documents or admit certain facts can also be sent to the other party. A party or other witnesses can be required to appear in person to answer questions under oath in what is known as a deposition. The purpose of obtaining information is to make sure that everyone has a clear understanding as to property and debts of the parties' as well as each party's position on issues such as custody of children, visitation, child support, alimony, and the appropriate division of the parties' property and debts. Before a trial can take place in many counties, the parties and/or their attorneys may be required to attend a pretrial conference to advise the court of what issues have been resolved and which remain disputed. Also, many counties require the parties to attend mediation with a neutral third party in an attempt to resolve remaining disputes prior to trial.
If the parties are unable to reach an agreement, the divorce case will be scheduled for trial before a judge. Jury trials are not permitted in divorce cases. Each spouse along with his or her attorney will determine the information to be presented to the judge. Information is presented through testimony and through documents and other information provided in various forms. Each party has the right to hear and see all the information presented by the other party and may subject that information to scrutiny through cross examination of witnesses and by providing other information.
Once the parties are done presenting information, the judge will take all of that information under consideration along with the existing law as to each of the issues presented. Then the judge will make a determination and announce orally or in writing what that determination is. Then a Decree of Dissolution of Marriage is prepared in accordance with the judge's decision. If a party does not agree with a judge's decision, there is the opportunity to appeal that decision to the Iowa Supreme Court or Court of Appeals. Once the decision is final and the Dissolution Decree has been entered, changes cannot occur unless there has been a substantial change in circumstances of the parties' lives affecting such issues as custody of children, visitation, child support or alimony. As a general rule, the distribution of property and debts in a Dissolution Decree cannot be modified. There are rare exceptions.
Paternity Actions
The procedures outlined above for Divorce apply in general to an action to establish paternity of a child with some notable exceptions:
- Paternity actions involve parents of a child who are not married to one another. Therefore issues involving distribution of assets and debts and alimony are not present.
- There is no 90 day waiting period before a Paternity Decree can be entered.
- An alleged father can dispute his paternity of the child or children in question. Paternity testing, usually through DNA samples, can be ordered. If paternity is disputed, this testing must demonstrate that the probability that the alleged father is in fact the father of the child must be at least 95%.
- The court may require the father to pay or contribute to the birthing and hospital expenses for the child and mother.
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