Divorce 101: Initial Petition and Response

Please read my disclaimer.

Below is some general information about the initial petition for divorce (or legal separation) and the next steps in the process. Although it is lengthy, it covers a lot of important topics and will hopefully answer most of the questions you have at this point.

Petition for Dissolution (or Legal Separation)

The petition is the initiating document in every family court case. The petition is required to include “a simple statement” of the claims you intend to make in the case, as well as the basis for the court’s jurisdiction. Generally, I do not include a specific proposal in the petition for dividing property or paying spousal maintenance (or legal decision-making and parenting time, if applicable). This is because the discovery process may reveal additional information that could change your position on those issues. I also feel it is best to maintain the most flexibility possible at the outset of the proceeding. If there is a high likelihood that the other party may not respond to the petition at all, we may include a more detailed proposal because it makes it easier to proceed by default.

The petition is a binding legal document which you will sign under penalty of perjury. Therefore, it is important that the petition is as accurate as possible, with the understanding that we may not have all the information at this stage. Generally, the positions you take in the initial petition cannot be changed unless new information comes to light.

90-day requirement: In order to file for divorce in Arizona, at least one party must be domiciled (residing) in Arizona for at least 90 days prior to filing.

Irretrievably broken marriage: Although it may sound harsh, it is a legal requirement in Arizona that the court find that the marriage is irretrievably broken.

Conciliation court: The petition states that “the conciliation provisions of A.R.S. § 25-381.09 either do not apply or have been met.” In Arizona, there is a conciliation process for spouses that want to try and reconcile their marriage. If one spouse invokes this process, the court can require both spouses to attend mandatory marital counseling. For most people, this is not a good option and the counseling offered by the court is unlikely to be effective. By including this statement in the petition, you are stating that conciliation is unlikely to be successful and you do not want to pursue it.

Covenant marriage: A covenant marriage has more requirements before entering marriage, such as premarital counseling. If you were married before August 21, 1998, you do not have a covenant marriage. Most people do not have a covenant marriage. If you’re unsure, ask me.

Attorney’s fees: The court may award attorney’s fees to one spouse or the other if there is a significant financial disparity or if one spouse takes unreasonable positions. In most cases, each party pays their own attorney’s fees. Even if you do not want your spouse to pay your attorney’s fees, it is important to preserve this claim in the petition in the event you want to pursue an award of attorney’s fees at a later date.

Parenting class: If your case involves minor children, you will need to complete the required parenting class. (If not, disregard this paragraph.) You can complete the class online here. You will need your case number before starting the class, which we will obtain for you when the petition is filed. You must complete the class within 45 days after the date of service. If you need more time, please let me know.

Preliminary Injunction

The preliminary injunction is a standing order issued at the start of every case. The injunction is effective against you when the petition is filed, and effective against the other party when they receive notice of the petition (typically by being served). We will send you a copy of the injunction once the petition is filed and you should review it carefully. The preliminary injunction includes the following orders:

  • That both parties are prohibited from transferring, encumbering, concealing, selling or otherwise disposing of any joint, common or community property, except if related to the usual course of business, the necessities of life or reasonable attorney’s fees, without the written consent of the other party or permission from the court.
  • That both parties are prohibited from harassing the other spouse.
  • That both parties are prohibited from removing any natural or adopted child from the State of Arizona without the written consent of the other party or permission from the court.
  • That both parties are prohibited from removing the other party or the children from any existing insurance coverage, including medical, hospital, dental, auto and disability insurance.

If you have any questions regarding your obligations under the preliminary injunction, please let me know immediately. Generally, it is not a problem to continue paying normal household expenses. To the extent possible, you should try to maintain the status quo that was in place prior to filing. Please contact me first if you plan to sell significant assets, change insurance coverage, take out a loan, remove the children from Arizona, or anything else that may implicate the preliminary injunction. Likewise, if your spouse is taking actions contrary to the injunction, please let me know immediately.

Unless it is modified by court order or written agreement, the preliminary injunction remains in place for the duration of the proceeding until the final decree is entered.

Response to the Petition

Service of process: After the petition is filed, the other party must be formally served with the initial documents. Service can be accomplished through a private process server or by the other party accepting service (signing a form in front of a notary). In certain cases, documents can also be served by certified mail. Generally, I try to ask the other party to accept service if there is a reasonable likelihood they will cooperate. We will communicate with you about the best way to serve the other party, and we will let you know when we plan on serving them. However, if we are using a private process server, we do not have complete control over when exactly they will be served. I try to avoid serving people at work or school unless absolutely necessary, because it can be embarrassing and often torpedoes any hope of an amicable settlement early in the case.

Response time: Once the other party is served, they have 20 days to file a response (30 days if served out of state). If they do not file a response within the required timeframe, we can file an application for default. Although obtaining a default judgment sounds advantageous, it is not the best option for most people. Even if we file an application for default, the other party still has a grace period of 10 business days to file a response. And even if they fail to file a response within the grace period, it is not guaranteed that the judge will enter the judgment you want. The judge still must apply the law to divide property equitably and make orders in the best interest of the children (if applicable).

After the response is filed: After the other party files their response, the court will typically schedule a Resolution Management Conference (RMC). The RMC is a brief, 15-minute conference with the judge to determine whether the parties have reached any agreements and to discuss further management of the case. The judge does not hear any evidence at the RMC, and you will not have to testify. At the RMC, we will inform the judge about our plan to resolve the case. In most situations, the parties will participate in some form of mediation before proceeding with a final hearing. We will discuss the RMC in more detail once it’s scheduled. If we have filed a motion for temporary orders (or if the other party has), we may skip the RMC and proceed with a hearing on temporary orders.

Termination of the Marital Community

Separate finances after date of service: In Arizona, the date of service is the termination date of the marital community from a financial perspective. It is not the date of divorce. Any income you earn after the date of service and any debt you incur is your separate property and your separate debt. There are some important exceptions to this, for example if you or your spouse earned a bonus prior to the date of service but it was received after the date of service, it may still be considered community property.

Paying community expenses post-service: If you are paying community expenses after the date of service with your separate income, you may be eligible for reimbursement from the other spouse. Expenses that may qualify for reimbursement include health and auto insurance, mortgage payments, and credit card bills for pre-service debt. However, just because you are eligible for reimbursement does not mean that the judge will order it. And even if the judge orders it, you may not be entitled to reimbursement for the full amount. For example, if you would otherwise be required to pay support to the other spouse while the case is pending, you may not receive reimbursement for paying community expenses. For now, you should keep track of any community expenses you pay with separate funds for possible reimbursement at a later date.

Establish a separate bank account: In most cases, it is a good idea to create a separate bank account and redirect your paycheck into that account. This will help you maintain your separate income and keep track of separate expenses. You may still be required to contribute to a joint account for community expenses. If you plan on using credit cards while the case is pending, it is also advisable to stop spending on community credit cards and create new credit accounts for all post-service expenses. This will make it much easier to divide the community debt in mediation or at the final hearing. Keep in mind that you will be required to disclose bank statements and credit card statements from any and all accounts, including accounts created after the date of service.