The “petition” is the legal document filed to start virtually any type of family law case, including divorce. The person who files the original petition is called the petitioner, the other party will be called the respondent. The petition for dissolution of marriage must contain the full names and addresses of the parties, background information about the marriage, short statements of material fact, and a summary of relief requested. The purpose of the petition is to provide notice to the court and to the opposing party of all the claims asserted. This means the petitioner must include in the petition every action he or she wants the court to take. Common examples include the division of community property and debt, determination of legal decision-making and parenting time, restoration of maiden name, and/or an award of spousal maintenance.
The petitioner typically is bound to the contents of his or her petition and the relief it requests. Mistakes in the petition can seriously affect the outcome of the divorce. In a recent case, the opposing party initially hired a certified legal document preparer to prepare her petition for dissolution. The document preparer mistakenly waived the opposing party’s interest in her husband’s pension. Eventually she hired a divorce attorney but because he never amended the petition, the judge ruled that her petition forfeited her community interest in the pension.
Certified legal document preparers are not attorneys and cannot give legal advice. If you are contemplating hiring someone just to prepare legal documents, consider an attorney instead. Often the rates are comparable and you will have the assurances of a qualified attorney who can provide valuable legal advice. Alternatively, litigants can find forms and instructions at their local court.
Filing a Divorce Petition
In Arizona, a petition for dissolution of marriage is filed with several other documents, including a cover sheet, summons, preliminary injunction, sensitive data sheet, notice of right to convert health insurance, notice regarding creditors and, if the parties have minor children, a parenting information program order and notice and an affidavit of minor children. Once everything is prepared, this packet is filed with the clerk of the superior court. The petitioner is required to pay a filing fee unless he or she qualifies for waiver or fee deferral. The clerk will assign a case number and judge, then stamp copies of the packet to be delivered to the judge and served upon the spouse, the respondent.
Service of the Petition
The Arizona Rules of Family Law Procedure enable process service by certified mail with return receipt requested. Typically this is the most inexpensive type of process service. But it requires a degree of cooperation from the respondent. If the respondent refuses to sign for the package, service cannot be accomplished by mail. Another way to serve legal documents is by process server. A process server is someone who is licensed to personally deliver legal documents. Although personal service can be more expensive than certified mail, it also can be more effective. Regardless of method, process service must be accomplished within 120 days of filing a petition or the case can be dismissed for lack of prosecution. Once it is served, the respondent has 20 days to file a response, if served in Arizona, or 30 days to file a response if served outside of Arizona. If no response is filed within the appropriate timeframe, the petitioner can apply for entry of default judgment. But, no matter what, all Arizona family courts must wait at least 60 days from the date of service before it can grant a divorce. This period is referred to as the mandatory cooling off period.
Is a Divorce Attorney Required?
Contrary to what other law firms might imply, the answer firmly is “no.” It is never necessary to hire a divorce attorney. The value of doing so really depends on the complexity of the case. Many simple divorces can be successfully completed without any attorney involvement. But it always is advisable to take advantage of a free consultation, even if you intend to represent yourself. And as the issues in the case become more complicated, it becomes increasingly prudent to consider hiring a good attorney. We have created a fictional example divorce to illustrate and walkthrough every step of the divorce process. If you have any other questions about divorce or you want a free consultation, you can contact our divorce attorneys directly.