A SAMPLE DIVORCE: PART ONE

The Petition for Dissolution and The Response

The purpose of this sample divorce series is to comprehensively walk through each step of a fictional divorce to help readers understand some of the intricacies of the divorce process and its timeline. It also is intended to illustrate the full gamut of family law pleadings, motion practice, and other litigation procedures; and to provide sample legal documents for reference.

Although most cases are not this busy or contentious, some are; so it is important to understand what could happen during divorce and how various actions and strategies can impact the case inside and outside of the court room. The series will demonstrate that divorces can be complicated to everyone’s detriment when attorneys mistake conflict escalation for aggressive advocacy.

This case is fictional—simply an amalgamation of our family law experience. Its parties, attorneys, expert witnesses, and judges are not modeled off of any known individual. Any likeness is purely coincidental. Any sample pleadings and other documents provided are meant for reference only and should not be filed or used for any other purpose.

How Cases Get Started

Every contentious lawsuit, including divorce, begins with (at least two) competing sets of allegations. These allegations are summarily presented to the court in the form of the initial pleadings, often called a “complaint” and “answer” in civil cases or “petition” and “response” in family law cases. When a new case is started, the party who filed the petition is known as the petitioner. Once the petition and accompanying documents are filed, they must be served on the other party who will be referred to as the respondent.

The Petition for Dissolution of Non-Covenant Marriage (with minor children)

That heading is a lot, right? In Arizona, that is what we call a petition for divorce for most types of marriages (non-covenant marriages). The petition contains information about the parties and a concise summary of the issues and relief requested.

In our sample case, the petitioner is the wife, Jane Doe. After approximately eighteen years of marriage, Jane decided to file for divorce. She and her husband, John Doe, have three minor children. For everyone’s sake, Jane wants to end the marriage as quickly and amicably as possible. Jane elected to file for divorce pro per, meaning without an attorney, because she was optimistic she and her husband could privately resolve the issues and reach full agreements without expensive litigation. She also worried about how she would pay for a divorce attorney because she spent most of the marriage as a stay-at-home mom caring for the children.

Before she filed, Jane carefully researched Arizona law and consulted with a couple of divorce attorneys just to be sure she fully understood her rights.

From Jane’s perspective, her husband was consistently emotionally abusive and, at times, even physically abusive during their marriage. She felt he coercively controlled her and gaslighted her into feeling like she was worthless.

Jane was informed that allegations of domestic violence can significantly impact the determination of legal decision-making and parenting time, but she did not want to publicize the sensitive details of the parties’ relationship in court documents. She also feared that if she revealed the domestic violence, it would anger John and make him much less receptive to an amicable settlement.

So Jane filed her petition for dissolution and omitted the allegations of domestic violence. She asked the court to award her “final say” decision-making authority. This is a type of decision-making (or legal custody as it is known in other jurisdictions) where one parent—Jane in this case—would have authority to make legal decisions for the children in the event the parents cannot agree.

As a sidenote, “final say” is now controversial because it used to be treated as a subtype of joint legal decision-making because it still required the parents to confer before any decision was made. However, the Court of Appeals recently held that “final say” is more analogous to sole legal decision-making since it ultimately enables one parent to make the decisions.

Back to Jane’s case, she also requested that she be designated as the children’s primary residential parent. This term is frequently misused and it does not grant a parent any additional authority or legal rights, it only means that parent would exercise more parenting time than the other parent. Jane asked that John’s parenting time be determined consistent with the children’s best interests. This request was deliberately vague because while she believed John was a loving father, she worried he was too inattentive and temperamental to exercise equal parenting time. She was unsure of what specific type of parenting plan to propose, so she left it open. Since parenting time necessarily impacts the calculation of child support, she asked the court to establish child support pursuant to the Arizona Child Support Guidelines. Ordinarily, child support established as part of a divorce will be ordered dating back to the date the petition was filed pursuant to A.R.S. § 25-320(B). But in this case, because the parties physically separated a few months before Jane filed for divorce, she requested that child support be established as of the date of their physical separation pursuant to A.R.S. § 25-320(C).

Jane’s Petition also addressed property and financial issues. Jane requested that all community property be equitably divided and that any separate property be confirmed to belong solely to its owner. Jane remembered that she signed a disclaimer deed to improve the financing when the parties purchased their marital residence. If valid, this deed made the marital residence John’s sole and separate property. So Jane asserted a “community lien” against that property which would entitle her to a portion of any community funds or efforts used to pay for and/or improve the value of the property.

And fully anticipating this might be the biggest area of disagreement, Jane requested spousal maintenance pursuant to A.R.S. § 25-319. Jane believed she was eligible for spousal maintenance because she left her job to care for the children full time. She spent most of the marriage unemployed and figured it would take a few years before she could find employment sufficient to support herself.

Jane filed her petition, hired a process server to serve her husband, and waited for his response.

John’s Response to the Petition for Dissolution

Like so many others, when John was served, he felt angry and embarrassed. Rather than rationally consider Jane’s positions, John immediately retained Shay D. Billings, a shareholder and divorce attorney at the nationally renowned powerhouse law firm of Ditcher Quick Lee & Hyde LLP.

John’s goal was singular—he wanted to hurt Jane. He wanted to make Jane feel how he felt when he was served. Actually, he wanted to make her feel worse. John and his attorney devised a plan to unleash litigation hell upon Jane and make her regret that she ever filed.

John’s attorney entered his appearance and filed his response to the petition for dissolution where John alleged that Jane had a history of mental illness and substance abuse. John argued that Jane was an unfit parent and requested sole legal decision-making. John asked that Jane’s parenting time be supervised at a court-approved facility until she submitted to invasive and expensive screenings and treatment protocols. John asked the court to order Jane to immediately vacate his separate property, the marital home, even though he knew she had nowhere to go and no means by which to support her own residence. He even asked the court to order Jane to pay for his attorney’s fees pursuant to A.R.S. § 25-324.

How They Got Here and What is Next

Jane’s desire to proceed without representation to minimize conflict seemingly backfired. Now she is unrepresented and under siege by an experienced divorce attorney whose aim appears to be more akin to character assassination than conflict resolution. John’s response is not unusual, though it is a harbinger for how the rest of this case will go. Many divorce attorneys, particularly hourly attorneys, happily escalate conflict with no regard to potential cost to the client or the outcome of the case because it directly enriches the attorney. And John is too blinded by emotion to realize that this approach benefits neither party.

Now Jane will have to decide if she can adequately defend herself against an aggressive attorney and to what extent, if any, she wants to engage in this brand of litigation.

Click Here to Read Part Two: The Amended Petition and Motion for Temporary Orders

2019-01-06T15:27:54+00:00