DIVORCE
Read the
WARNING! first.
Introduction
The purpose of a divorce
case is to obtain a dissolution of marriage. In addition, often assets and
liabilities will need to be divided. If children are involved, custody and
support of the children may be an issue. Sometimes, support of a spouse
may be an issue. In all cases, the object should be to resolve the
proceeding in a fair and equitable manner.
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Your Duties
It is extremely important
that you are completely honest and candid with your attorney. Your
attorney cannot effectively represent you, nor may your attorney want to
represent you, if you are not truthful or candid. Lies will eventually
come back to haunt you, and may make the difference between a good result
and a bad result. It is extremely important, therefore, that you be
completely candid and honest.
You must obey all court
orders. You should try at all times to avoid conflict with your spouse.
Sometimes this means that you must limit your contact with your spouse.
You should keep a diary,
log or other written record of all events that relate to your dissolution
of marriage proceeding. This record should be made at the time that the
events occur. Often, it is difficult to remember with precise detail
events that occurred weeks or months earlier. The better your records are,
the better you will be able to prepare yourself. Maker sure you bring all
relevant events to the attention of your attorney.
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No-Fault
Dissolution of Marriage
Arizona is a "no-fault"
state. This means that you do not need to prove fault in order to obtain a
divorce. In fact, fault is not an issue in a dissolution of marriage case
and the court will not permit evidence of fault or blame to be presented.
So long as either spouse testifies that "the marriage is irretrievably
broken and there is no reasonable prospect of reconciliation" the Court
must grant the dissolution of marriage.
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The
Dissolution Process
A dissolution of marriage
(divorce) is a Court-supervised proceeding. It starts by the filing of a
petition for dissolution of marriage. A fee must be paid to the Clerk of
the Court at the time of filing the petition.
A petition cannot be filed
unless the petitioner (person who files the petition) has resided in
Arizona for at least ninety (90) days before the petition is filed. The
petition must be delivered to the respondent (person against whom the
petition is filed). This is known as service of process, or "service."
The respondent has twenty
(20) days from the date of service to file a response to the petition. If
the respondent is served while outside of Arizona, he/she has thirty (30)
days to file a response. A fee must be paid to the Clerk of the Court at
the time of filing the response.
If a response is not timely
filed, the petitioner may prepare and file appropriate papers to enter the
default of the respondent. If a default is entered, a hearing may be held
at a later date to grant the dissolution of marriage on the terms
requested by the petitioner in the petition. This is known as a default
hearing.
If a response is timely
filed, the case can proceed in one (1) of two directions. Either a
settlement agreement can be reached or the case will proceed to trial.
Sometimes, a settlement agreement is reached after an initial period of
investigation or controversy. Ultimately, after the "cooling off" period
(explained below) the case either proceeds to a default hearing or to
trial.
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Preliminary
Injunction
As soon as a petition for
dissolution is filed, a "preliminary injunction" is issued, in every case.
This is a Court order that prohibits the parties from hiding, concealing
or encumbering assets. It also prohibits you from harassing your spouse or
removing children without the permission of your spouse or without another
court order. READ THE PRELIMINARY INJUNCTION CAREFULLY.
Violating the preliminary
injunction is a serious matter. Besides the possibility of being punished
by the Court, in most situations your case will be prejudiced. Most judges
begin to form an opinion about a case from the moment that they first look
at it. Being accused of a violation of the preliminary injunction often
results in a taint that can never be fully removed.
Representation of you
becomes much more difficult, and more expensive, if there is an uphill
battle. Failing to follow the strict requirements of the preliminary
injunction may very well result in an uphill battle. If you do not fully
understand this, ask your attorney to explain it further.
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The Petition
The petition must contain
certain information, which is required by law. If all of this information
is not included, the petition will not be valid. The petition must
contain:
The birth date and
occupation of each party, and the length of domicile in Arizona;
The address of each party
(except in cases where domestic violence is an issue);
The date of the marriage
and the place at which it was performed;
The names, birth dates
and addresses of all living children, natural or adopted, common to the
parties and whether the wife is pregnant (and if minor children are
involved, their Social Security Number);
The details of any
agreements between the parties as to support, custody and visitation of
the children and maintenance of a spouse;
The relief sought by the
petition.
In addition, if custody of
a child is involved the petition must also contain the following:
Where the child resides
and the length of time of such residence;
Whether the petitioner
has participated, as a party, witness or in any other capacity, in any
other litigation concerning the custody of the same child in this or any
other state;
Whether the petitioner
has information of any custody proceeding concerning the child pending
in a court of this or any other state;
Whether petitioner knows
of any person not a party to the proceeding that has physical custody of
the child or claims to have custody or visitation rights with respect to
the child.
If the wife files the
petition and she wants her former name restored, the petition should so
state. The petition must be "verified." This means that the petitioner
must sign a statement swearing that all information in the petition is
true and correct. The petition is filed with the clerk of the court and
then becomes an official part of the record of the case, subject to public
disclosure.
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The Response
The response to the
petition must also be verified. If any statement in the petition is not
accurate, the response must so indicate. If the wife files the response
and she wants her former name restored, the response should so state. Like
the petition, the response becomes a public record once it is filed with
the clerk of the court.
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The "Cooling
Off" Period
Regardless of when, if
ever, a settlement agreement may be reached and regardless of whether the
case proceeds to a default hearing, no dissolution may be granted until a
"cooling off" period has expired. No hearing may be held until at least
sixty (60) days after service of process has occurred. Thus, even if you
and your spouse may agree to everything, you must wait at least sixty (60)
days after service of process to get your divorce. As a practical matter,
because of the congestion of the Court's calendar in some counties, it may
take three (3) or four (4) months to get a hearing date scheduled.
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Orders to
Show Cause and Temporary Orders
Sometimes a spouse wants or
needs some form of immediate relief from the Court and cannot wait for the
trial. The Court has the power to enter a variety of temporary orders.
Usually, the Court will agree to enter orders designed to protect a spouse
from abuse, make sure that children are properly clothed, housed and fed,
and maintain a sense of fairness about the proceeding.
If a spouse will not
voluntarily agree to leave a shared residence, provide temporary child
support or necessary spousal maintenance, or otherwise act fairly, a
petition for "order to show cause" may be filed. The Court then sets a
hearing to hear the request and determine whether a temporary order should
be issued. The temporary order usually remains in effect until the case
comes to trial.
The evidence presented to
the Court at the order to show cause hearing may affect the ultimate
outcome of the case and may color the judge's opinion about the case.
Therefore, it is best not to request temporary relief unless you have a
good reason to do so. Likewise, it is best to avoid a request for
temporary orders if at all possible.
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The
Settlement Agreement
If the parties are able to
reach an agreement as to all of the issues involved in the proceeding, a
written settlement agreement is prepared. This document then governs the
conduct of the parties and should avoid disputes in the future. Sometimes,
it is necessary to return to Court to enforce one or more of the terms of
the settlement agreement.
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The
"Discovery" Process
Often, it will be necessary
to use the procedural rules of the litigation process to obtain
information. To properly advise you about your rights and liabilities, the
attorney needs information about a variety of subjects. If the information
is not readily obtainable or is not voluntarily provided by your spouse,
the rules of court may be used to obtain the information. This is known as
the "discovery" process.
The discovery rules permit
written questions to be sent to your spouse. In addition, documents can be
subpoenaed if necessary. A spouse may be interrogated under oath in the
presence of a court reporter. This is known as a "deposition." Needless to
say, each of these procedures involves time and expense. Skillful
discovery can do much to improve a party's case. The lack of appropriate
discovery can often lead to poor results.
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The
Disclosure Statement
Each party is required to
prepare and send to the other party an information statement known as a
"disclosure" statement. The disclosure statement is due not later than
forty (40) days after the response is filed. There is a duty to supplement
the disclosure statement when new or different information comes to your
attention.
There are serious
consequences for the failure to prepare a disclosure statement and for
presenting a false or misleading disclosure statement. The Court can
invoke a number of remedies for the failure to prepare a complete and full
disclosure. You can be sanctioned, fined or have the relief sought by your
spouse granted.
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Trial
If the case cannot be
settled, a trial will be necessary. The trial will be conducted in front
of a judge. There is no automatic right to a jury trial in a divorce case.
Dissolution of marriage cases are entitled to a preference when scheduling
the case for trial. Nevertheless, it may be six (6) months, twelve (12)
months or longer before your case gets to trial.
Remember the O.J. Simpson
case? Not all of the information discussed on television was permitted to
be presented to the jury. The reason for this is that rules of evidence
control which pieces of information may be presented in a trial, and the
manner in which the evidence is presented. In short, the evidence must be
in "admissible" form before a judge is authorized to permit the
presentation of the evidence. Obtaining evidence in admissible form often
takes the skill of an experienced attorney, and it often takes time and
money.
At the trial, the
petitioner presents evidence to support his/her request for relief.
Evidence in the form of testimony and documents may be presented. At the
conclusion of the evidence, the judge makes a decision about each issue
involved. The judge may take the case "under submission." This means that
the judge takes time to think about and decide the case. By rule, the
judge must render a decision within sixty (60) days after taking a matter
under submission.
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The Decree of
Dissolution
After the judge decides the
case, a decree of dissolution is prepared and presented to the judge for
signature. Usually, the attorney for the petitioner will prepare the
decree. The decree is a Court order that contains the judge's ruling. The
decree is effective as soon as the judge signs it. Thus, the divorce does
not occur until the decree is entered.
The decree is an important
document. Great care and skill should be used to draft the decree. A
poorly drafted decree will cause problems for years to come.
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Post-Trial
Matters
If a party is not satisfied
with the decree, he/she may ask the judge to modify it. There must be a
valid legal reason to modify the decree and the request must be made
within the short time period allowed by the rules of procedure. If the
judge made an error of law and will not correct it, an appeal may be filed
within the time allowed by law. Taking an appeal is not something done
lightly. It is expensive and time-consuming. In most cases, the parties
must live with the consequences of the decree even though they might not
like the outcome.
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Division of
Assets and Liabilities
The Court is required to
fairly and equitably divide the joint, common and community assets and
equitably apportion the joint, common and community liabilities. This does
not mean that the Court is required to make a fifty-fifty (50/50) split.
Often, it is impossible to equally divide everything and the Court will
attempt to divide assets according to logistics, wishes of the parties,
and the value of the assets and liabilities.
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Community
Property
"Community property" is all
property acquired during a marriage except that which is acquired by gift
or inheritance. "Property" means a thing of value and does not necessarily
mean land or a building. Generally, the earnings of a spouse are community
property, as are all of the fruits and proceeds of those earnings.
Property acquired while a dissolution of marriage proceeding is pending is
no longer considered to be community property. There is a presumption that
a marital residence is community property, even if one spouse provided the
down payment from his/her separate property.
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Separate
Property
Separate property is
property acquired before marriage or by gift or inheritance during
marriage. If separate property is mixed ("commingled" )with community
property, the separate property loses its separate character and becomes
community property. The court is required to apportion to each spouse
whatever is his/her separate property. Sometimes, there may be a dispute
about whether a certain item of property is separate or community. |
