Divorce

In the early stages of a divorce the parties often make important decisions that can impact the way the case is ultimately resolved. Seek out advice from an experienced Scottsdale divorce attorney to help you decide how to handle the preliminary issues such as how to divide the funds in a joint bank account, whether you should move out of the marital home, and how temporary child support and visitation issues should be resolved.

Contact a divorce and family law attorney at the Daly Law Firm to discuss Arizona law and its application to your legal problems. Together we can develop a strategy to protect your family and finances. My office is conveniently located in Scottsdale, Arizona. Find out what you need to do today to protect your family and finances as you proceed with the early stages of divorce.

Phoenix and Scottsdale Divorce Attorney

The decisions you make early on will play a major factor in determining the results of your case. I can help you with every step of the divorce process and assist you with all family law concerns that may arise such as:

• Contested Divorce
• Uncontested Divorce
• Temporary Orders
• Legal Separation
• Mediation / Alternative Dispute Resolution (ADR)
• Military Divorce
• Marital Settlement Agreements
• Annulments
• Arizona Community Property Law
• Collaborative Divorce
• Flat Fee Divorce

Getting a divorce is a difficult decision. It is important to seek advice from a lawyer who provides you with the utmost attention and compassion. Divorce can be a long and devastating experience. I will ensure that your assets, parental rights and best interests are protected.

Arizona Divorce Information Center

• Filing for Divorce in Arizona
• Overview of Preparing and Filing Court Papers
• Overview of Service of Process
• Respondent’s Answer
• Divorce Process in Maricopa County

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Filing for Divorce in Arizona

The residency requirement is necessary for an Arizona court to have jurisdiction or the power to grant a divorce.

1. You or your spouse must have lived or domiciled in Arizona for at least 90 days before you file for divorce.
2. Another way to prove residency is if you or your spouse is stationed in Arizona as a member of the armed forces for at least 90 days.

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Overview of Preparing and Filing Court Papers

In Arizona divorces are handled in Superior Court. A divorce is legally called a dissolution of marriage. To initiate or start divorce proceedings, you must first file a written Petition for Dissolution with the court. A Petition is a statement in writing that includes the following information:

• Your personal information
• Your spouse’s personal information
• Children
• Property
• Debts
• Need for spousal maintenance

If you start the divorce by filing first, then you are called the Petitioner. The spouse receiving the divorce papers is called the Respondent because he or she has to respond or answer the petition for divorce. A lawyer will help you write the Petition. The purpose of the Petition is to tell the court how you want things settled and divided after the court dissolves or terminates the marriage. Items in the Petition include how you want custody to be determined, how property divided and whether or not a party seeks spousal maintenance.

In addition to the Petition, you also need to file with the court:

• Summons - the summons is a legal paper that notifies or tells the Respondent a Divorce Petition has been filed and the Respondent needs to take action in order for the court to hear the Respondent’s answer to the Petition.

• Preliminary Injunction - the injunction is set in place at the start of the divorce case. An injunction is a court order that prohibits or stops the spouses from doing anything to property, money, children, insurance or anything else that is under the court’s jurisdiction or power to resolve.

• Notice of Right to Convert Health Insurance - At the start of the divorce case, each spouse needs to get a notice about the rights and responsibilities regarding health insurance. Usually married couples share health insurance so this notice lets both spouses know about their options concerning health coverage due to the impending divorce.

Your lawyer will file the paperwork with the Superior Court along with the appropriate filing fee. There may be more papers and forms that you need to file with the court depending on the specific facts of your divorce case. It is important to discuss everything fully with your lawyer so that the proper paperwork can get filed with the court. If you fail to comply with all the procedures of the court it may delay your divorce case. As a Scottsdale Divorce lawyer, I can help you accurately prepare all of the documents necessary to beging your case.

Should I file for divorce first?

If you believe that your spouse is about to file a Petition, that your marriage is irreconcilable or that your spouse may dispose of assets there could be significant advantages to filing for divorce first in Arizona. In addition, filing generally determines who will present evidence first at trial if one becomes necessary. As an experienced Scottsdale divorce attorney, I can evaluate your case and determine when it would be best to file your Petition with the court.

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Overview of Service of Process

After the Petition is filed, you must have the papers served on your spouse in order to give him or her notice of the lawsuit. There are several ways to serve process:

• Acceptance- You can give the papers to your spouse in person. The spouse needs to sign a formal “Acceptance of Service” in order to waive the process of service.

• Process Server - If you want to serve papers formally, you can hire a person to give your spouse the papers for you. Process servers can be very effective in situations where a spouse refuses to waive service or is evading service. I work closely with our process servers to identify and promptly address these situations.

• Sheriff- The sheriff can act as a process server. Usually he or she is clearly identified as law enforcement, and he or she goes to the spouse’s residence to deliver the divorce papers.

• Mail- You can send the papers in the mail with a return request receipt to show the court that your spouse did receive the divorce papers in the mail. However, proof of service must still be filed with the Superior Court.

• Publication as a Last Resort- This option is used when you cannot locate your spouse either because you do not know where your spouse is or your spouse is trying to evade service. Usually you have to provide documentation to the court that you have tried repeatedly to give the papers to your spouse, but you have failed. Then you are required to run a notice in the legal announcements / legal notices section of the newspaper for a certain amount of days. After the legal publication, the court will consider the notification or service requirement satisfied if you cannot serve process to your spouse in any of the other ways.

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Respondent’s Answer

After the service of process is completed, the Respondent (the person who is receiving the divorce papers) can file with the court a written Response. The Respondent can only answer the Divorce Petition in writing. If the Respondent is served with divorce papers in Arizona, he or she only has 20 days to file a Response with the court. If the Respondent is served with divorce papers out of Arizona, he or she will have 30 days to respond to the court.

If the Respondent does not answer in 20 or 30 days and the Respondent was correctly served with process, it is the Petitioner’s option to move for a default judgment. A default judgment means your spouse is not “contesting” the divorce so the judge can enter a ruling in your favor without going to trial.

An uncontested divorce means your spouse agrees with the Divorce Petition and will not argue with you over money, property, custody and other terms of the divorce. Generally, an uncontested divorce is resolved by providing the court with a Consent Decree for Dissolution. A contested divorce means that you and your spouse cannot agree on a settlement and in that case you probably need the court to divide property and determine custody. If the Respondent makes an answer to the court odds are the spouse is disagreeing about something in the original divorce petition so that makes the divorce contested.

To get a default judgment, you must file an Application and Affidavit for Entry of Default with the clerk in the court. Then a copy of the paperwork you filed with the court must be sent to your spouse. The spouse only has 10 business days to respond to the notice of an impending default judgment. If the spouse does not file a written response, the entry of default is complete and the divorce is almost over. After 60 days from the time the Petitioner served the Respondent with the Petition for Dissolution, the Petitioner may submit a Decree for the judges signature and the divorce will be complete.

Why do I need to wait 60 days to get a divorce in Arizona?

The easy answer is the the Arizona legislature has created a law that says you have to. Arizona Revised Statute Section §25-329 says that a court cannot consider a motion or Decree for divorce until at least 60 days after the Respondent was served. This period is often referred to as the "cooling off" period. This essentially provides the parties the opportunity to determine whether or not their marriage can be saved.

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Divorce Process in Maricopa County

• Initial Court Filings - To initiate a Court proceeding, a party files a “Petition” with the Court Clerk and pays the appropriate filing fee. The opposing party may either be served with the documents by a process server or may waive service by signing and notarizing a formal Acceptance of Service. The opposing party has twenty days in which to file a written Response with the Court.

• Assigned Judge - After you make the initial filing for divorce, the Court will automatically assign the case to a judge. The same judge will usually hear your entire case. It is important to hire a lawyer familiar with the judges and their styles because the judge does have a lot of discretion when deciding divorce cases.

• Parent Education Class - If your case involves custody of minor children, the State of Arizona requires both spouses to attend a 3-hour class within 45 days of the initial Court filing for divorce. You will receive a Certificate of Completion when you complete the class. It is very important to complete the class and give the original copy of the Certificate of Completion to your lawyer so that he can file it with the court.

• Litigation vs. Negotiation - It is possible for the parties (the Petitioner and the Respondent) to come together and negotiate an agreement to end the divorce. This agreement is called a Consent Decree and lays out how the parties want to end their marriage. Things in the Consent Decree include:

  • How the parties will pay off all marital debts must be agreed upon
  • Child support and custody must be agreed upon
  • A parenting plan must be agreed upon
  • Spousal support must be agreed upon
  • The division of all the assets such as personal property, bank accounts, real estate etc.

  If the parties can agree on all these matters in writing, both parties need to sign the document and submit it to the Court for approval. If the court approves the Consent Decree the divorce can be finalized without a hearing.

  If negotiations break down and a settlement cannot be reached, the case can go to trial. In Maricopa County, there are between 20,000 to 30,000 family law cases on the Court’s schedule or docket. Because of the large volume of cases, expect delays in obtaining trial dates. Judges tend to have a 4-5 month backlog of trial cases so your divorce case will not be resolved as fast if you go to trial. As a Scottsdale divorce attorney, I will make every effort to resolve your case without going to trial and if trial is necessary we will zealously advocate on your behalf.

• Discovery Process - Discovery is the time period when the lawyers for each party can exchange relevant information regarding a case. Each party may request copies or documents and usually depositions of witnesses are conducted to find out more information about the things in dispute. The discovery process takes a lot of time. It is important to work closely with your attorney so he can prepare you for the process.

• Business Valuations - In some cases, where the community estate has business interests, a party may request that the business be “valued” by a business evaluator, who is typically a forensic accountant. In this process, the evaluator examines all the records of the business and may interview the parties or employees. As you can imagine, a business evaluation is a time-intensive process and sometimes takes up to 3-5 months to complete.

• Custody Evaluations of Children - If custody is an issue, a party may ask the court for a custody evaluation. The court will appoint a mental health professional evaluator to interview the parties, observe their interaction with the child and the evaluator can also interview other family members. Usually a custody evaluation takes about 3-5 months to complete. The evaluator will issue a report to the court with recommendations for custody, parenting time, and which party should get primary physical custody. These custody evaluations can be stressful and you need an attorney who is experienced in the process to guide you through it.

• Protection of Child’s Interest - If the judge finds that the parties cannot agree on issues involving the child, the court or the parties can appoint an attorney that looks out solely for the interest of the child. This attorney will make recommendations to the judge based on what he or she believes is in the child’s best interest. This attorney will be included on all Court dates, reports, and all issues regarding the child.

• Temporary Orders - While you are waiting for the trial to start, your lawyer can file temporary orders with the court. These orders set out the actions the parties can take while the case is pending. Temporary Orders can address a number of things such as parenting time, child support, access to personal items, or spousal maintenance. Typically the court will have a hearing on the topic and an evidentiary hearing is scheduled for a later time to allow both sides to produce evidence and witnesses to support their position.

• Resolution Management Conference - The Court requires that each party complete a “resolution statement” that must be submitted to the Court one week prior to the RMC. This proposed Resolution Statement provides the Court with a preview of the legal positions that each party will take regarding the issues in the case.

  The RMC is a useful tool for the Court to schedule court dates, set deadlines, establish trial dates, and provide the parties with the roadmap for the remainder of their case. Mediation, ADR settlement conferences, discovery response deadlines and other dates can be set at an RMC. Most importantly, the Court will likely set a trial date at the RMC.

• Alternative Dispute Resolution Conference - With the recent changes to the rules that govern family law cases in Arizona, there is a new emphasis on using Alternative Dispute Resolution (“ADR”) to try to resolve cases. Maricopa County has an excellent program in which a Commissioner or Judge Pro Tem is appointed to oversee a formal settlement conference and offer their opinion on the likelihood of success of each party’s position. This advice is sometimes a “wake up” call for each party regarding a Judge’s opinion of your legal positions in the case. The Commissioner’s opinion is not binding upon the parties and the assigned Judge is not involved in this process. It can be helpful to go through this process to see if the parties can come to a settlement and avoid a trial.

• Mediation / Parenting Conference - Mediation is another form of ADR in which the parties and their attorneys meet with a Mediator to discuss the outstanding issues in a case. Mediation is confidential, voluntary, and there is no requirement that you reach an agreement. What is discussed is not divulged to the Family Court Judge. The Mediator attempts to help the parties reach agreements that benefit the parties and their children. The Mediator will document any agreements reached between the parties and forward the same to the Judge for signature as an Order if no objection is received.
  
  Attorneys are not permitted to attend Mediation with clients, and the conference is confidential. Additionally, Court-ordered Mediation may be free of charge. It generally takes about two months for the Court to schedule Mediation after a Motion is filed. Contact Daly Law Firm for a free consultation to discuss whether mediation or a parenting conference would be appropriate in your case.

• Trial - If a full resolution cannot be reached through Mediation, ADR settlement conferences, or negotiation with the opposing party, a trial will be necessary. Obviously, trials are a risk because the Judge makes the final decision. There is no way to predict how a Judge may decide certain issues in a case. If you disagree with the Judge’s decision in a trial, you have the right to appeal. However, appeals are usually only successful when the Judge has clearly reached a decision that was not supported by the evidence introduced at trial, or if new evidence has been discovered. A Judge’s trial decision will not be overturned unless it can be clearly shown that an abuse of discretion has occurred. Therefore, most judges’ trial decisions are final.

This overview of filing for divorce in Maricopa County includes most of the steps involved with a divorce case. Some steps can be avoided with the help of good legal representation. The Daly Law Firm makes every attempt to negotiate with opposing counsel to avoid lengthy trials. In the event a trial does occur, The Daly Law Firm is prepared to support you through the duration of your Arizona divorce.

If you have been served with divorce papers or you are contemplating a divorce, contact the Daly Law Firm today. The Daly Law Firm represents clients going thorough divorce in the greater Scottsdale and Phoenix area, including: Maricopa County, Phoenix, Mesa, Glendale, Chandler, Scottsdale, Gilbert, Tempe, Peoria, Surprise, Avondale, Goodyear, Buckeye, Fountain Hills, El Mirage, Queen Creek, Paradise Valley, Tolleson, Wickenburg, Guadalupe, Cave Creek, Litchfield Park, Youngtown, Carefree and Gila Bend.

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Daly Law Firm, PLLC - Arizona Divorce Lawyer

At the Daly Law Firm, we understand that divorce can be highly emotional and stressful. If you are seeking an Arizona family law attorney for a divorce matter in Scottsdale, Phoenix, or another area within Maricopa County, call (480) 607-8308 for a free consultation. Begin taking the first steps towards safeguarding your future and assets during a divorce.