Overview of Divorce
Michael prefers that his clients be the first to file because the party who files the action (the Petitioner) sets the tone, direction and speed for the dissolution action. In trial, the Petitioner may present his or her case to the Court twice, first with direct testimony and again with rebuttal testimony.
A divorce is commenced by filing a Petition for Dissolution of Marriage. The Petition must be properly served on the other spouse per statute. Alternatively, he or she can sign an Acceptance of Service. The response is due in 20 days (30 if he or she resides out of state).
Before a Petition for Dissolution of Marriage is filed venue must be selected. Venue is the county in which the case is to be tried. It is extremely important to select a venue that is convenient to the client, allows easy access to the Courts and convenient to the attorney (travel time for the attorney is very expensive).
Of great importance is the mandatory issuance of a Preliminary Injunction by the Clerk of the Court precluding either party from (1) dissipating or hiding assets; changing insurance coverage or changing the beneficiaries of insurance coverage; (2) harassing; bothering; abusing the other party; (3) preventing either party from traveling with the child(ren) outside of the State of Arizona without mutual agreement or Court order. This Preliminary Injunction goes into effect for the Petitioner at the time the Petition is filed with the Clerk of the Court and goes into effect for the Respondent at the time of service. Violation of the Preliminary Injunction will be considered contempt of Court and violation of a Court order and will adversely impact the party’s position throughout the case.
Property or Debts Acquired After Service
After the date of service property or debts acquired or incurred is the property or debt of the person who acquired or incurred it. It is simply no longer a community asset or obligation. Salaries paid, 401(K) contributions made and savings accumulated are the separate property of that party.
If custody or child support is an immediate issue, or spousal support is needed, the Petition for Dissolution of Marriage usually includes an Order to Appear for Temporary Orders. This entails a mini-trial to allow the Court to determine temporary residential parenting time, exclusive use and possession of the family residence, temporary child support and temporary spousal maintenance. A hearing on temporary orders occur as quickly as two to three weeks from the time the Petition is filed.
Forms to be Filed
Several forms need to be promptly completed and filed throughout the proceedings. These forms are mandatory and are very helpful in resolving the case. These forms are the Pretrial Statement, Inventory of Property and Debts, and if support either child and/or spousal is requested, a Financial Affidavit. Completing these forms accurately and completely will save you attorney’s fees.
A 60 day waiting period is required by statute before a Decree of Dissolution of Marriage can be granted.
If there are children involved the parties are ordered to participate in mediation through the Conciliation Court. In 90% of the cases the parties are able to agree to a parenting plan so mediation is very productive in resolving the issues. Mediation through the Conciliation Court is free. The parties may proceed through a private mediator. This would be at the expense of the parties.
In a complicated case involving a business valuation, dispute over custody or spousal maintenance, experts are usually employed to value the business, evaluate custody, spousal maintenance and the employability of a non-working spouse. Expert witnesses can be very expensive but are also necessary, particularly in business evaluation.
Oftentimes it is productive to employ the services of private mediator to resolve the case or, if that is not possible, to at least resolve a particularly difficult issue in the case. Private mediation is at the expense of the parties but usually well worth the expense.
Motion to Set
If it appears trial is necessary, it is our policy to file a Motion to Set the matter for trial as soon as possible so that time limits are established to avoid unnecessary delays and costs.
During this period, discovery is conducted which consists of acquiring documents, taking depositions, hiring experts, examining property, obtaining appraisals, determining employability of a non-working spouse, etc.
A Pretrial Settlement Conference is usually two or three weeks before trial. The Pretrial Settlement Conference is an excellent opportunity to resolve some or all of the issues and is an informal meeting with a Judge and the parties to hammer out and hopefully resolve some or all of the issues. The settlement conference Judge has authority to fully settle the case if the parties are in agreement on all of the issues.
If the parties cannot agree and trial is necessary, exhibits are prepared and witnesses are scheduled. Trial commences with the opening arguments of the attorneys. Petitioner, who is the person that filed the action, proceeds first. Petitioner usually testifies first but this is not a requirement. Witnesses provide testimony on the issues, exhibits are identified and either admitted or not admitted. Exhibits that are admitted may be considered by the Court in determining the case. Upon completion of the Petitioner’s case, Petitioner rests and the Respondent begins his or her argument and testimony. After the Respondent rests, Petitioner is entitled to provide rebuttal testimony. After completion of testimony the case is submitted to the Court for a decision. The Court usually makes interim decisions to maintain the status quo. The Court has up to 60 days to enter a final decision. If one party or the other objects to the decision that party must file post-trial motions or file an appeal within 15 days of entry of the order.
The award of attorney’s fees is governed by statute and at the discretion of the Court. The major precipitating factor for an award of attorney’s fees is a determination by the Court that one party or the other has taken an unreasonable position.