DIVORCERead 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. |
