Divorce is almost never easy. Even when the parties are amicable and mutually believe divorce is the best option, it is still a big decision. From our perspective, individuals going through divorce can be overwhelmed by the uncertainty — what happens next? Knowing exactly what to expect can make the divorce process a little bit easier for everyone.
Like all family law cases in Arizona, divorce begins with a Petition. The Petition typically contains a summary of the important facts and outlines the relief requested. The Petition will require several additional attachments, including a summons, a sensitive data sheet, a preliminary injunction, and notices regarding health insurance and creditors. The person who files for divorce may be referred to as the Petitioner and will be responsible for a filing fee, currently $341 in Maricopa County. The self-service center does offer a form; however, if you intend to proceed without a divorce attorney you should carefully review the Arizona Rules of Family Law Procedure. Procedural defect can result in waiver of claims or defenses, sanctions, or even dismissal of your case.
A litigant may, but is not required to, file a motion for temporary orders to ask the family court to enter orders effective while the divorce litigation is pending. Commonly, parties seek temporary spousal maintenance and/or child support, a temporary parenting schedule, and even interim attorney’s fees to enable a spouse with comparatively fewer financial resources to afford an attorney. A party is not required to file his or her motion for temporary orders at the same time as the Petition, but it can be cost effective to do so. When a party files a motion for temporary orders, the court usually issues an order to appear that must be served on the other party. This can be served along with the Petition and its attachments to save the cost of separate service.
The person who filed for divorce must serve the other party. This can be accomplished by personal service or certified mail. Both methods offer different advantages and disadvantages. Personal service involves hiring a licensed process server or paying a fee to the sheriff to personally deliver the Petition and its attachments to the opposing party. When service is accomplished, the server usually files an affidavit of service with the court. Conversely, certified mail is a less expensive alternative, though for it to effectuate service, the recipient has to sign for the package. When a party is expecting litigation, he or she may avoid picking up the mail, therefore avoiding service. This may require the Petitioner to hire a process server to attempt personal service. Another advantage of the process server is that personal service usually must be attempted before a court will allow alternative service by publication or other means in cases where the other party is avoiding service.
The party who receives service may be referred to as the Respondent. He or she must file a Response to the Petition within twenty days (if served within Arizona) or thirty days (if served outside of Arizona). The Response should address all of the allegations in the Petition and may raise additional allegations necessary to support the Respondent’s defenses or additional claims for relief. If no Response is filed, the Petitioner can apply for entry or default judgment pursuant to Rule 44.
Assuming a Response is filed, the next step will be a preliminary hearing. If the parties are represented by attorneys, the family court usually sets a Resolution Management Conference. This type of hearing functions like a scheduling conference. The parties and their attorneys appear before the judge assigned to the case and discuss the parties’ positions and whether any additional services are required. Most cases are set for some type of mediation and cases involving children may be referred to a parenting conference. If the parties are unrepresented, the hearing may be called an Early Resolution Conference. This is a meeting with someone from family court administration whose goal is to help the parties resolve as many contested issues as possible.
The next phase of divorce litigation is the discovery phase. By now the parties already should have exchanged their Rule 49 disclosures, but may need additional information from the other party. A party is allowed to issue requests to the other party for documents, information, and answers to pre-prepared questions. Examples of these requests include requests for production, requests for admission, and interrogatories. Unless otherwise ordered or agreed between the parties, each party has forty days from receipt to respond to discovery requests. When information is required from a third party, a subpoena also may used.
Most divorces will be sent to some type of mediation, either private mediation with an agreed upon mediator, or alternative dispute resolution (“ADR”). Regardless of the type of mediation, the goal is to facilitate resolution of as many of the issues as possible. There is no obligation for either party to settle at mediation. However, whenever either party is unreasonable during family law litigation, he or she may be ordered to pay the other party’s attorney’s fees. So it is important to negotiate in good faith and maintain reasonable positions at mediation.
If, after all of this, the parties cannot agree to all of the issues, the matter will be set for trial. Arizona family court trials are bench trials, meaning the judge decides the outcome. Both parties will be allotted approximately half of the available time to present witnesses and evidence. The judge may enter a ruling at the end of the trial, though it is far more common for the court to take the matter “under advisement” and issue a comprehensive written ruling at a later date. Courts have up to sixty days to issue rulings, though it rarely takes that long.