Frequently Asked Questions About Divorce
Below, we have compiled some of the most common questions we hear from people considering divorce. For more information or to speak to an attorney about your situation, call 480-359-1758 or contact us online.
Can I represent myself in court?
It is not required that you need to have an attorney to represent you in a divorce case, but it is highly advisable. If you choose not to hire an attorney, you will still be expected to know and follow all the same rules and procedures as an attorney would. This is very difficult as judges, clerks, and staff of the court are not permitted to give you any legal advice. All your legal papers must be submitted in the proper form and filed on time. Since divorce cases often involve important issues about property, debt division, financial support, legal decision-making (child custody) and parenting time, it is in your best interests to at least consult with an attorney before even contemplating representing yourself.
What if I change my mind after starting a divorce case?
If you and your spouse decide to stay married, the divorce case can be canceled (or “dismissed”) by filing a request with the clerk of the Superior Court.
How does a divorce case start?
To get a divorce, one spouse must start a court case in the Superior Court. There are particular steps that must be followed. These steps are controlled both by state law and rules and sometimes by local rules and procedures. Before starting the case, consult with an attorney to obtain information about your legal rights as well as the particular rules and procedures for your county. To begin the court case, one of the spouses must file with the Clerk of the Superior Court a written request called a “Petition.” A filing fee must be paid to the clerk of the Superior Court at the time of filing. If unable to pay, the petitioner can ask the court to postpone (“defer”) or forgive (“waive”) payment by filing a written application with the clerk of the Superior Court.
What is a petition?
The petition is the legal paper that asks the court to legally end the marriage and to issue other orders necessary to deal with the spouses’ property, debts and financial support. If children are involved, the petition also should include specific requests for legal decision-making (custody), parenting time and child support. The petition is an important legal document because generally, the court cannot give a spouse anything that is not requested and not included in the petition.
What do the words “petitioner” and “respondent” mean?
In any legal case, the people involved are referred to by words that describe their role in the case. In a divorce case, the person who starts the court case by filing the petition is called the “petitioner.” The other spouse is called the “respondent” because that spouse can file a paper answering the petition that is called a “response.”
What other papers will be filed when I start a divorce case?
With the Petition, the Petitioner must also fill out and have available seven other documents at the time of filing:
- Summons: The summons is a legal paper that tells the nonfiling spouse (the respondent) that a divorce case has been filed and some action must be taken if the respondent wants to be heard by the court.
- Notice of right to convert health insurance: Under state law, when a divorce case is started, each spouse must receive a notice advising them of their rights and responsibilities regarding any existing health care insurance policy.
- Preliminary injunction: This is a court order that automatically takes effect when the divorce case is started and prohibits both spouses from doing certain things involving money, property, children, and insurance until the court can decide any issues involved or until the parties can reach a written agreement.
- Creditor notice: Under state law, when a divorce is started, each spouse must receive a notice advising them of their rights and responsibilities regarding debts acquired during the marriage.
- Family court cover sheet: This is a standardized form containing information about the parties who will assist the court in processing the case.
- Parent information program order and notice: Basically, this is the form that provides information on the parenting class that each parent must attend (not needed if there are no minor children common to the parties).
- Affidavit regarding minor children: This may be needed if minor children are involved.
Why is the summons important?
The Summons is the official court paper that tells the other spouse that a divorce case has been started and that some action must be taken if the other spouse wants to be heard by the court. It also tells the spouse that there is a time limit in which to act. The summons must be signed and stamped by the clerk of the Superior Court to be official. The divorce case cannot go forward until the summons (with the petition and other papers) are delivered to the spouse in the proper way.
What is the preliminary injunction about?
The preliminary injunction prevents (“enjoins”) each spouse from doing certain things that might damage the person, property or legal rights of the other spouse. The purpose of the preliminary injunction is to keep each spouse from making decisions or taking actions about money and property belonging to both spouses and preserves the legal interests of any minor children until written agreement is reached by the parties or the court has had the opportunity to make fair decisions about these matters. As much as possible, it keeps everything as it was during the marriage while the divorce case is before the court. The preliminary injunction is an official court order that is effective until the divorce case has ended. The preliminary injunction does these things:
- Directs the spouses not to sell, give away, transfer, borrow against or hide any community property unless needed for the necessities of life or done in the usual course of business.
- Prohibits family violence.
- Orders both spouses not to remove any children living in Arizona from the state without the written agreement of both spouses or the court’s permission.
- Requires that all types of insurance coverage for the spouses and any children remain effective and that no one is removed. A spouse who disobeys the preliminary injunction may be arrested and prosecuted for the crime of interfering with judicial proceedings; that spouse may also be held in contempt of court (violation of a court order for which a party may be punished by a fine or jail).
What happens after the petition is filed?
Under the United States’ system of constitutional law, the court cannot act in a case unless all interested persons are notified and have a chance to be heard. In a divorce case, this means that the papers initially filed by the petitioner must be made available to the other spouse, who then can reply to the court. Once that happens, the petition is placed on the assigned judge’s docket and set for further proceedings. Different judges handle the initial administrative settings of their cases differently. Some judges will automatically set for a resolution management conference (RMC), which is essentially a scheduling conference to keep the case moving forward. Either party can file a motion asking the court to schedule temporary orders or a status conference or even a referral to alternative dispute assessment (ADR).
What is meant by “service” of papers?
Giving notice to the other spouse that a divorce case has been started is called “service” and is done by giving (“serving”) copies of the summons, petition and other papers that the petitioner has filed to the other spouse. There are rules governing proper service: either the party must be served by law enforcement or a licensed process server, or the other party can sign an acceptance or waiver of service form to be filed with the court.
What if I do not know where the respondent lives?
If you do not know where the respondent lives but the last known residence was in Arizona, service may be made by publishing a copy of the summons in a newspaper for four consecutive weeks. When service is made by publication, the court is limited in its authority to make orders in the case. For example, the court could not order that the respondent pay financial support for the petitioner or for any children.
How long do I have to serve the summons and petition?
The summons and a copy of the petition and other required papers must be served within 120 days of filing the petition. (The court can allow more time if a request is made before the 120 days runs out.) Otherwise, the court case will be ended (“dismissed”) and must be started again.
How does the court know if the respondent has been served?
After the summons and petition are served on the respondent, a written statement (called an “Affidavit of Service” or a “Proof of Service”) must be filed with the clerk of the Superior Court. A sheriff or process server usually files the written statement on behalf of the petitioner when service is made in the state. If service by publication is used, a written statement sworn under oath (an “affidavit”) must be filed with the court along with a copy of the notice published in the newspaper.
Can the respondent simply agree to receive the summons and petition?
Yes. The respondent may sign a paper (“Acceptance of Service of Process”) agreeing to accept service of copies of the summons, petition, and other required papers rather than have a sheriff or process server deliver them. The respondent also may sign a paper (“Waiver of Service of Process”) agreeing not to receive the summons and petition at all. In either case, the agreement does not mean that the Respondent consents to things the Petitioner has asked the court to do. It means only that the respondent admits receiving the summons and Petition or does not want to have them formally served. This way of serving papers is allowed by court rules and eliminates the cost of having a sheriff or a process server deliver the papers.
However, it is only useful when the respondent cooperates with the petitioner. This sometimes happens when both parties agree to end the marriage and want to make the divorce case go as quickly as possible. This method should not be attempted if domestic violence or the personal safety of the petitioner is a concern. If the respondent either accepts or waives service, the signed form must be filed with the clerk of the Superior Court so the record shows that service actually was made.
What happens after the first papers are served?
After the respondent is served with the initial papers in the case, that spouse has the right to reply to the requests made in the petition.
How is a petition replied to?
The reply to the petition is made in a written document called the “response.” In the response, the respondent can agree with the requests that the petitioner has made or ask for different orders from the court. The response must be filed with the clerk of the Superior Court.
Does the response have to be served like the petition?
No. All papers of either spouse must be filed with the clerk of the Superior Court. Copies of these papers also must be made available to the other spouse. But after the summons and petition are served on the respondent, all other papers may be mailed to the other spouse or to the other spouse’s attorney, if that attorney has filed papers in the case. The response may be served on the petitioner by first-class mail.
How long does the respondent have to serve the response?
There is a time limit for filing the response. Court rules provide that the response must be filed within 20 days of the date that the summons and petition are served on the respondent or within 30 days if service is made on the respondent outside of the state.
What if no response is filed?
When no response is filed, the respondent loses the chance to be involved in the court case and the court may end the marriage by a “default divorce.”
What is a “default divorce”?
If the response has not been filed within the time allowed (20 or 30 days depending on where the summons and petition were served), the court may grant the requests made in the petition and sign the divorce decree without an opportunity for the respondent to participate. This is known as getting a divorce by “default.”
How does one get a divorce by default?
There are several steps to get a divorce by default (but first you must wait until the time for the respondent to file a response has run out):
The petitioner first must file an application form with the court and mail a copy of it to the respondent. The application form may be called different things in different counties (usually either an “Application for Default” or “Notice of Default”). This form tells the court that the summons and petition were served on the respondent and that the respondent has not acted in time.
When the form is filed, the clerk notes in the court file that the respondent has defaulted. This is called “entering” the default. Sometimes the form to be filed combines both parts and is called an “Application for an Entry of Default.” Even though the respondent has failed to file a response, a copy of the petitioner’s application for any default must be served on the respondent if the address of the respondent is known. This may be done by mailing a copy to the respondent via first-class mail.
If the petitioner knows that the respondent is represented by an attorney, a copy must also be mailed to the attorney. The respondent then has another 10 days to file a response.
If the respondent still does not respond to the court, the petitioner must appear before the court to provide information the court needs before ending the marriage by default.
Why is the default application mailed to the respondent?
Although the respondent has failed to act in time and the default has been entered in the court record, the default does not become effective for 10 days after the application is filed. Within that time, the respondent is given another opportunity to file a response. If the respondent acts within this 10-day period, the case will proceed as if there were no default.
Is a divorce automatically granted when the 10 days run out?
No. If the Respondent continues to be in default after the 10-day period has expired, the court may end the marriage and make other necessary orders without the Respondent participating. But first, the court must hear evidence from the Petitioner to be sure there is a reason to dissolve the marriage and to be sure that all issues of property, children and support are dealt with.
How does the court hear evidence for a default divorce?
A court session called a “hearing” is scheduled before a judge or commissioner of the court so that the court may obtain all of the necessary information. The Petitioner must appear before the court to give information or answer questions. Usually, the hearing is brief and informal. The petitioner’s attorney asks the petitioner questions about the petitioner’s residence in Arizona, the breakdown of the marriage, property and financial support issues. If children are involved, the court will also inquire about legal decision-making, parenting time and child support.
How soon can the default hearing be scheduled?
By state law, the court may not hold a default hearing for at least 60 days after the date that the summons and petition are served on the Respondent (or the date the Respondent accepts or waives service if that is the way service was made). This is the earliest time a person may ask the court for a divorce by default.
How are default hearings scheduled?
The way default hearings are scheduled is not the same in all counties. For example, in Maricopa County, the Petitioner must prepare a form called a “Request for a Default Hearing” and mail it to the court with a large self-addressed envelope. The court file is reviewed and if all papers are in order, the petitioner will then be mailed a notice that a default hearing has been scheduled for a certain date and time. In Pinal County, the petitioner can call the court and schedule a hearing.
What is a divorce “decree?”
The decree is the final order of the court legally ending the marriage. Spouses are not “divorced” until the court grants the divorce and the decree is signed by the judge. The decree may also contain other orders deciding how the spouses’ property and debts will be divided and what financial support, if any, will be paid by one spouse to the other. If children are involved, the Decree also will provide for legal decision-making, parenting time and child support.
Who prepares the divorce decree?
The petitioner prepares the decree for signature by the judge or commissioner. When preparing the decree, it is important to repeat as closely as possible what was requested in the petition. When a case ends by default, the court generally cannot issue orders that differ from what the petition originally requested. (For example, if the petition does not ask for financial support for a spouse, the decree cannot order that the respondent pay support.) The decree should deal with all property, debt, support and child-related issues. It is likely that the judge or commissioner will not sign the decree if different or additional things are requested. The Petition, then, must be as specific and complete as possible when it is filed.
What if the respondent does not default and a response is filed?
If the respondent files a response with the court disagreeing with any of the requests made in the petition and no agreements are reached, a trial is scheduled to resolve the disputes between the spouses. Court rules and procedures determine when the trial will be held, but a period of time will be allowed for the spouses to gather information about any issues that are disputed. There may also be some interim hearings or status conferences. At a trial, each spouse must present evidence to support claims made. The court will decide how to divide the property and debts of the spouses, make any orders for financial support and make orders regarding the children, if any.
At any time before the trial is held, the spouses may reach agreements about the disputed issues and may avoid a trial by asking the court to grant a decree (“Consent Decree”) based on their agreement. The steps and procedures for getting a divorce generally apply to all cases, including those where the spouses have minor children together. When children are involved, however, the court has a special responsibility to decide matters of legal decision-making, parenting time and child support. Even if the marriage ends by default, the court must inquire about these issues and make orders that are in a child’s best interest.
Can a woman go back to using her maiden name after the divorce?
Yes. State law allows a woman to return to (“restore”) the use of her former name at the time the marriage is ended. A request must be made to the court at any time before the divorce decree is signed by the judge. Usually, the request is included in the first papers filed in the divorce case.