Petition for Dissolution of Marriage (Divorce)

Significance of the Petition

The petitioner typically is bound to the contents of the petition and the relief it requests. It must assert or at least reserve every claim the petitioner intends to make. Mistakes or omissions in the petition can seriously affect the outcome of the divorce. In a recent case, the petitioner initially hired a certified legal document preparer to prepare her divorce petition. The document preparer inadvertently waived the petitioner’s interest in the respondent’s pension. Petitioner later hired a divorce attorney who tried to undo the mistake, but because the petition was never amended, the judge ruled that the petition forfeited the community interest and awarded the entire pension to the respondent. Arizona family courts are designed to enable parties to represent themselves without an attorney, but unrepresented parties are held to the same standard as attorneys so they must be extremely careful to research all applicable statutes and rules of procedure.

Filing a Divorce Petition

The petition 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 and affidavit of minor children. Once all of these documents are prepared, they are filed with the clerk of the superior court. The petitioner is required to pay a filing fee unless the petitioner qualifies for fee deferral or fee waiver (the respondent will also be required to pay a filing fee when a response is filed). 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 respondent.

Service of the Petition

All family law petitions must be served upon the opposing party. Process service is necessary to provide notice to the other party of all claims and requests for relief. The Arizona Rules of Family Law Procedure enable service by certified mail with return receipt requested. This is the least expensive method but it requires a degree of cooperation from the respondent. If the respondent refuses to sign for the package, service is not completed. Another way to serve the divorce petition is to hire a process server. A process server is someone who is licensed to personally deliver legal documents. Although personal service is more expensive than certified mail, it also can be far more effective. Regardless of method, service must be accomplished within 120 days of filing the petition or the case can be dismissed.

Response or Default

Once the petition is served, the respondent must file a response within a specific amount of time. If the respondent is served within Arizona, the period for response is 20 days. If the respondent is served outside of Arizona, the period for response is 30 days. If no response is filed within the applicable timeframe, the petitioner can apply for entry of default judgment. Default judgment, when entered, treats the petition as unopposed and grants all of the relief requested. If a response is filed before default judgment is entered, the case will be set for a preliminary hearing — either an early resolution conference, if both parties are unrepresented, or a resolution management conference if either party retains an attorney.

Is a Divorce Attorney Required?

Contrary to what other law firms might imply, the answer is absolutely not. It is never “necessary” to hire a divorce attorney. The value of an attorney depends on the complexity of the case and the party’s knowledge of the law and comfort level representing their interests. Many simple divorces can be (and should be) successfully completed without attorney involvement. But even for these cases, it is always advisable to take advantage of a free consultation. For cases involving more complex issues, particularly those involving claims for spousal maintenance or child custody disputes, it becomes increasingly prudent to consider hiring the best divorce attorney.

Divorce Process

Arizona family courts must wait at least 60 days from the date of service before they can grant a divorce, even if the respondent fails to file a response and the case proceeds by default. This mandatory 60-day period is referred to as the cooling off period. It is intended to allow spouses sufficient time to contemplate reconciliation prior to the termination of their marriage.

Contested divorces take several months or even years to resolve. The timeline depends on the complexity of the issues involved, the reasonableness of the parties, and the quality of the attorneys involved. Understandably many divorce attorneys who bill hourly have a financial interest in escalating conflict and continuing divorce litigation for as long as possible.

To evaluate the complexity of the issues in your case, we encourage you to contact our divorce attorneys for a free consultation. Alternatively, we created a fictional example divorce to illustrate and explain the major steps of the divorce process.

Sample Divorce Petition