Mesa Family Law
Mesa Family Law Process
Going through a divorce or other family law issue is no picnic. First, let’s start with understanding the Arizona Rules of Family Law Procedure that governs all of the procedural rules in Family Court. These rules combine elements from the rules of evidence, the Rules of Civil Procedure, and the rules of procedure for juvenile court. The goal was to create a less adversarial process designed to facilitate mediation and problem-solving, not litigation. The family law rules recognize that a divorce decree is rarely the end.
To learn more or begin the steps of your divorce, seek the assistance of a Mesa Divorce Attorney today by scheduling a consultation.
Every Arizona divorce case begins with the filing Petition in Family Court. The first step in the Arizona divorce process will either be filing the petition or responding to the petition, so the first thing we will tackle are these initial filings in Family Court.
The rules went into effect on January 1, 2006, and govern the entire family court process. The rules are divided into the following general categories:
- General Administration–Rules 1–22
- Pleadings and Motions–Rules 23–35
- Parties–Rules 36–39
- Service of Process–Rules 40–43
- Default Decrees, Consent Decrees & Dismissals–Rules 44–46
- Temporary Orders–Rules 47 and 48
- Disclosure and Discovery–Rules 49–65
- Settlement and Alternative Dispute Resolution (ADR)–Rules 66–75
- Pretrial and Trial Procedures–Rules 76 and 77
- Judgments and Decrees–Rules 78–90
- Post-Judgment Proceedings–Rule 91
- Civil Contempt and Arrest Warrants–Rules 92–94
- Other Family Law Services and Resources; Domestic Violence Benchbooks–Rules 95 and 96
- Family Law Forms–Rule 97
Arizona Family Court
In Maricopa County, all family court cases are heard “in family court.” This means there are assigned judges who only hear family law cases. They abide by their own local rules and the Arizona Family Law Rules of Civil Procedure. Family court judges are routinely working to improve the process and encourage settlement.
Each Arizona family court case begins with the filing of these initial documents, including the Petition and Response. Either party may or may not also request temporary orders by filing a motion along with the Petition or Response. A temporary order is an order issued during the pendency of a case before a final order is issued. The order could be for child support, maintenance, payment of bills, use of the home or any other matter.
After the initial filings, the next step for the divorce in Arizona is discovery and disclosure, which represents the “meat and potatoes” of your divorce and the beginning of pretrial conferences.
Section 7 – Pleadings
The Petition starts every action for divorce. It must contain certain elements, like a caption, jurisdictional allegations, a demand for the relief requests, a signature and verification page including a notarized signature. Other requirements include:
A statement that the marriage is irretrievably broken or one or both of the parties desire to live separate and apart, or, if the marriage is a covenant marriage, any of the grounds prescribed in 25-903 or 25-904,
birth date, occupation, and address of each party and the length of domicile in this state (unless one or both have a protected address),
date and place of the marriage, and whether the marriage is a covenant marriage,
names, birth dates, social security numbers and addresses of all living children and whether the wife is pregnant,
details of any agreements between the parties as to support, custody and visitation of the children and maintenance of a spouse, and
what you want. For instance, are you asking for spousal maintenance, attorneys fees, or sole legal decision making?
Proper Jurisdictional Allegations
The jurisdictional allegations include whether one or both parties have lived in Arizona for at least 90 days and whether any minor children have been in the state for the last six months. In the event that your children have not been in Arizona for the last six months, they may still qualify for Arizona jurisdiction under the UCCJEA.
Venue is similar to jurisdiction but refers to which county is proper for the action and jurisdiction refers to the state where the action can be heard. Venue is proper Actions for dissolution of marriage or legal separation when brought in the county in which a petitioner is residing at the time the action is filed.
This can be tricky. What if both spouses file for divorce in separate counties? Then both are the petitioners and both actions are proper! In that event, some judges defer to whoever filed first, other judges will look to other outside evidence like where the parties lived together or where the children go to school to determine proper venue.
How Do You Serve a Divorce Petition?
Your Petition, along with a summons and other accompanying documents, must be served upon the opposing party. The date of service is a very important date. It is the date that ends the marital community and the date that starts the clock ticking for a response.
The Respondent may be served in Arizona in the following ways by personal delivery, substituted service, or mail and signed acknowledgement. An out-of-state respondent may be served by direct service, registered mail, or publication.
Rule 43(C)(2) of the new Arizona Rules of Family Court Procedure states that a paper is served by:
- handing it to the person;
- leaving it:
- (i) at the person’s office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or
- (ii) if the person has no office or the office is closed, at the person’s dwelling or usual place of abode with someone of suitable age and discretion who resides there
- mailing it via U.S. mail to the person’s last know address—in which event service is complete upon mailing; or
- delivering the paper by any other means, including electronic means, if the recipient consents in writing to that method of service or if the court orders service in that manner—in which event service is complete upon transmission.
Rule 43(C) was amended effective June 1, 2006, in order to authorize service by electronic means if the recipient consents in writing.
The Court Comments to Rule 43 define when electronic service and other methods of service are considered complete. Specifically, the Court Comments state that:
Service by electronic means or by “other means” is complete upon transmission, which occurs when the sender does the last act that must be performed by the sender. For example, electronic service is complete when the sender executes the “send” command on a computer to transmit the paper to the recipient. Similarly, facsimile service is complete when transmission of the paper on a facsimile machine is completed. Likewise, service by an overnight delivery service is complete when the sender makes delivery to the service designated to make the overnight delivery to the recipient. As with other modes of service, evidence that the intended recipient did not receive a paper served by these methods may defeat the presumption that service has been effected.
The Preliminary Injunction
Upon the filing of the petition a preliminary injunction goes into place. The preliminary injunction automatically goes into effect, whether requested or not. This preliminary injunction enjoins, or orders both parties to refrain from:
- Transferring, encumbering, concealing, selling, or otherwise disposing of any of the joint, common, or community property of the parties except if related to the usual course of business, the necessities of life or court fees and reasonable attorney fees associated with a dissolution of marriage action without the written consent of the parties or the permission of the court;
- Molesting, harassing, disturbing the peace of or committing an assault or battery on the person of the other party or any natural or adopted child of the parties;
removing any natural or adopted child of the parties then residing in Arizona from the court’s jurisdiction without the prior written consent of the parties or the permission of the court.
- Removing or causing to be removed the other party or the children of the parties from any existing insurance coverage, including medical, hospital, dental, automobile and disability insurance.
The injunction has the force and effect of an order signed by the judge and it is enforceable by all available remedies including contempt. It remains in effect until further order of the court or until a final decree is entered or until the action is dismissed. But, the preliminary injunction may be revoked or modified by the court.
There is specific case law that allows a party to move money or sell community assets to pay for the reasonable attorneys fees associated with the divorce.
A Party may file a motion for temporary orders along with the petition or the response. The motion can ask for orders relating to temporary property use, custody, support, alimony, or attorneys fees. The motion needs to include some specific facts as to why the party needs the temporary order. In the event you are asking for money, in the form of support or assets, you should include information related to the liquid assets in both parties possession.
You can get a temporary order after you have provided notice to the other party, and there has been a hearing on the issues. The exception, is when you are requesting an emergency temporary order without notice, which can be granted only if there is substantial evidence that there will be irreparable injury to the moving party if the court does not enter the order immediately. In practice, it is very difficult to get an order without notice.
Further, where relevant, the motion must contain the following information and documentation:
- A proposed parenting plan specifically stating the custody, parenting time, and visitation requested for all parties to the action;
- A completed Child Support Worksheet setting forth the amount of support requested in accordance with the Arizona Child Support Guidelines;
- The specific duration and amount of any spousal maintenance requested together with an Affidavit of Financial Information; and
- If a party seeks temporary orders to divide community property and debts and for payment of attorney’s fees the motion shall set forth the specific relief requested and the proposed division of the property and debts as well as the income and assets available to each party and the party shall file an Affidavit of Financial Information.
The court can also make temporary orders respecting property of the parties. Often one spouse will be given temporary possession of the home and/or some other property such as an automobile; as part of the order the other spouse will be restrained from interfering with that possession. In Maricopa County, the party requesting this temporary restraining order to exclude the other party from the residence because of physical abuse must be present in court, but this requirement can be waived for good cause.
Well there is no specific statute that allows the court to award attorneys fees on a temporary basis, the court has broad discretion to do so. This is usually accompanied by a request for temporary child support or spousal maintenance. In fact case law from 2010 decision state that every spouse has a duty to support his or her marital partner. This duty doesn’t extend to attorneys fees for divorce, under certain circumstances.
Once served with a petition, the responding party has several options to consider when filing a response to the petition. At The respondent can file a motion, like a motion to dismiss, a response to the substance of the petition, a counterclaim, or a request for conciliation services.
Section 9: Discovery and Disclosure: Preparing for Trial in Family Court
For our clients, this is our next major milestone meeting after the initial consultation or hire date. This meeting is usually in-office and can last up to two hours. During this meeting, we work on getting into the nitty-gritty of your case. We will go over all relevant documents and materials that we will need for your case, both from you and the opposing party. We will go through the Rule 49 disclosure chart and the mandatory disclosures required under Rule 49.
Disclosure and discovery become both negotiation and trial tools. It includes completing your Affidavit of Financial Information. Our system provides you with the tools you need in order to systematically identify and organize all of the evidence you will need for your divorce in Arizona.
Disclosure and discovery tools include:
- Request for Production of Documents
- Request for Admissions
What Are Pre-Hearing Conferences?
When you file for divorce in Arizona, there are a number of non-evidentiary, pre-hearing conferences prior to your final hearing. Non-evidentiary means that witnesses and evidence will not be introduced. The judge will make procedural decisions but not substantive decisions. That means that the judge may decide to send you to mediation or when to set a status conference, but the judge will not decide how much your child support will be.
These non-evidentiary pre-hearing conferences may be called any of the following names:
- Resolution Management Conference
- Early Resolution Conference
- Status Conference
- Return Hearing
A Temporary Orders Hearing is an evidentiary hearing. Evidence will be taken and the judge will make decisions regarding substantive legal issues.
For your divorce in Arizona, you will usually be required to engage in some sort of formal negotiation process. This may be mediation through conciliation services (at the courthouse) or an Alternative Dispute Resolution with a Judge Pro Tem. The following are different possibilities for formal and information negotiations processes.
- Alternative Dispute Resolution
- Mediation through Conciliation Services
- Private Mediation
- Settlement Conferences with Lawyers
- Informal negotiations between the parties
Trial Preparation and Trial
It is important to note that most people do not reach this step. Approximately 90% of cases can be settled by diligently going through the process above. With that being said, the last step in the process is preparing your evidence and witnesses for trial and drafting a Pretrial statement. Your pretrial statement is the most important document in the trial prep and trial process. If you hire an attorney for only one step in your entire case, this should be the time.
If you find at any point in time you need assistance with your divorce in Arizona, call us, register for a webinar, or email us! We want to hear your story and help come up with a plan!