Filing a Response
If no response is filed within the appropriate timeframe, default judgment may be entered to grant all of the relief requested in the petition. It can be extremely difficult to set aside a default decree, so it is important to timely respond if you have been served with a petition and dispute its allegations or requests. Responding parties who are served within Arizona have 20 days to file a response. If served outside of Arizona, the timeframe is enlarged to 30 days.
The process for filing a response is similar to any other legal document. It is filed with the clerk of the superior court and a filing fee is required unless the responding party qualifies for fee deferral or waiver. Copies of the response are then delivered to the assigned judge and to the party who filed the petition. Unlike the petition, the response does not require process service, so it can be delivered to the opposing party by ordinary mail.
Affirmative Claims or Defenses
Certain defenses must be raised before filing a response. These include lack of personal jurisdiction, improper venue, insufficiency or process, and failure to state a claim. These defenses, if proved, are grounds for a motion to dismiss. A motion to dismiss is the legal process used to ask the court to dismiss the petition altogether usually for some procedural defect. These defenses are waived if not alleged before the response is filed.
Perhaps even more important is the preservation of affirmative claims. Affirmative claims are additional claims for relief not requested in the petition. Examples might include, but are not limited to, the responding party’s claim for spousal maintenance, community waste, or allegations of substance abuse or domestic violence that might affect the other party’s child custody rights.
When to Hire a Divorce Attorney
When first confronted with divorce, even before filing a response, you should decide whether you need to hire a divorce attorney. This can be time sensitive because the petition and the response can dictate the course of the litigation. If you hire an attorney after filing a response, the attorney may be bound to the consequences of what you filed. It would be easy for us to fearmonger and promise failure to anyone who does not hire a divorce attorney. But that would be dishonest. The truth is that not every divorce requires an attorney. Some cases are very simple and straightforward. However, even if your case is one of those, it never hurts to take advantage of a free consultation with a qualified divorce attorney. The consultation can help you better understand the divorce process and answer any questions you have about applicable law.
After a response is filed, a preliminary hearing will be set where the parties will discuss and formalize any agreements and set certain scheduling procedures for discovery and court services. We created a fictional sample divorce to provide more comprehensive insight into the procedure and common strategies employed by divorce attorneys. This series will be updated as the case “proceeds” and will include samples of most pleadings and motions commonly used during the divorce. We hope it is a great resource to help people understand what to expect during divorce.