480-210-2167

How To File For Divorce

Divorce, Divorce How-To's, Education

This article is step one in a complete manual on How to File for Divorce. Many people want to know how to get a divorce, yet finding step-by-step instructions from actual qualified professionals is very difficult. Only a lawyer can truly guide you through the process and we know divorce lawyers are expensive—too expensive for the majority of people. But we have good news!

This guide was written by local divorce lawyers who know the laws, the procedures, and tips and tricks to make your life easier. Access Legal is owned by attorneys, but is not a law firm—it’s a company designed specifically to help people representing themselves in Arizona family court.

If you’re looking for answers to something specific, use our quick links below:


The initial filings

Every case starts with either a Petition for Dissolution/Legal Separation or a Petition to Establish custody, paternity, and/or child support.

In a nutshell, you are either getting a divorce/separation/annulment or you have had a child with someone you are not married to and need to establish custody/parenting time and/or child support.

For anyone going through these legal events, the same process must be followed. This section will describe the first step of your case, the initial documents. You will learn what to file, where to file, how to serve the opposing party and how to respond. I will offer tips on drafting and filing your documents and the path of least resistance to get your opposing party served. By doing the first step correctly, you set yourself up for ultimate success.

First, determine what type of case you have:

  • Divorce with Children
  • Divorce without Children
  • Covenant Marriage Divorce with Children
  • Covenant Marriage Divorce without Children
  • Legal Separation
  • Annulment
  • Initial Establishment of Legal Decision Making, Parenting Time, Paternity and Support (or any combination of the issues)

You will file a Petition for (fill in any of the above case types that apply to you) and all accompanying documents to start your case. If you have children and you are filing for Divorce, your Petition will be accompanied by a family court sensitive data sheet, a preliminary injunction, a notice of right to convert health insurance, an affidavit of minor children and a notice regarding creditors.

If you are filing a Petition without children, you will not need to provide the affidavit of minor children or the parent information program. Check in your county to find out the exact accompanying documents you will need. There is nothing more frustrating than driving to the courthouse, waiting in line, and getting the clerk to look at your documents only to have them rejected because you don’t have a specific supplementary form required by the county.


Drafting the Petition

When drafting your Petition you have the option of being very specific, very vague, or somewhere in between. This is a strategic decision that depends on the facts of your specific case.

You may want to use vague language by asking for “an equitable distribution of property” or “reasonable parenting time to be determined by the parties” in order to leave yourself room to refine and change your position as you move through discovery. You may find through discovery that separate property exists that you were previously unaware of, you may decide to sell the house, you may exchange property for spousal maintenance, etc.

By keeping your initial documents vague, you can avoid making inconsistent statements to the court while refining your position and leaving yourself open to all possibilities. You should avoid making inconsistent statements to the court whenever possible. For instance, if you ask for $2500 per month spousal maintenance in your petition, $1200/month in your motion for temporary orders, and $3500 in your pretrial statement, the judge is likely to be annoyed by this lack of consistent information. I have seen judges award attorney’s fees against the inconsistent party. Being vague avoids this problem.

Another reason to keep some statements vague is to avoid inflaming or angering the opposing party. For instance, if things are quite amicable, and you and your spouse have talked through many details that you agree upon but you are still negotiating a spousal maintenance and child support number, consider stating only that you “may be eligible under the statute for spousal maintenance in an amount and duration to be determined,” or ask for “child support to be ordered pursuant to the Arizona guidelines.”

If you believe that your spouse or ex is unlikely to respond to your petition, then you must draft your petition very specifically. If an opposing party fails to respond to a petition, you become eligible to seek a default judgment against the party. You will be awarded everything in your petition—ONLY everything in your petition. For that reason, if an opposing party doesn’t respond but you have failed to include a parenting plan in your petition, you must file an amended petition, serve the opposing party, and wait for the allotted time frame again.

There are some things you must include in your petition or you will be barred from changing your position. You must state whether or not significant domestic violence has occurred during the marriage. Do not omit this fact. If domestic violence has occurred, make sure to include it in your petition. This factor is pivotal in the decision of legal decision making and parenting time.

Similarly, if you and the other party agree on everything, you can arrange for a strategic default by crafting a petition specific to your agreement and one that addresses all outstanding issues. Then, the other party need not respond or pay the fee for responding. The Petitioner can seek a default judgment as a fast track way of getting divorced or getting a custody order entered.

While there is no need to use “legalese” when drafting your petition, you will want to make sure that you write in a clear way that lets the judge know what you are asking him or her to do. You do not need to say: “COMES NOW, Donald Duck, Petitioner of the land of Disney, to hereby request that henceforth he be granted sole legal decision making.” But instead you could say something to the effect of: “Petitioner, Donald Duck, requests he be granted sole legal decision making.” Then you can set out your reasons. Have a friend or family member edit your document and make sure it is written clearly. Grammatical or spelling errors are not uncommon and will have no actual effect on your case; it is more important that the substance of what you are asking for is clear and you have addressed all issues.

 

Filing the Petition

Your Petition must be notarized and for that reason is not eligible for e-filing in Maricopa County. (Not all counties have e-filing, so make sure and check with the local courts). You should take three or four copies of your documents with you to be stamped: one for you, one for your attorney (if you have one), one for the judge, and one for the opposing party. You should also expect to pay a filing fee when you file your petition. The filing fee in Maricopa County is $318 as of this writing.

If you are unable to physically take the Petition and accompanying documents to the courthouse, either because you don’t drive or because you work business hours, you can hire a “runner” to take the documents for you. Many legal document preparer companies will facilitate the filing for you, or an attorney’s office can facilitate the filing for you. When you get to the courthouse, you will go to the filing clerks and either take a number or wait in line. At the counter, the clerks will examine your paperwork to make sure everything is there. They will file stamp your documents, collect the fee, give you a case number, and assign a judge. You will then take one of your file stamped copies to the judge’s box and deliver the document.

Next, we will talk about how to serve your petition.


Service of the Petition

The day you serve the petition on the opposing party is a very important day. Not only does that trigger the time from which the opposing party must respond, it also “severs the community.” That means any debts incurred or income earned after the service of the petition will be separate property and debt. You won’t be divorced yet, but you are slightly less than married because you are free from the community property rules.

Along with the petition, the following documents must be served on the opposing party:

  • “Family Court Cover Sheet”
  • “Summons”
  • “Preliminary Injunction”
  • “Petition for Dissolution of Marriage (Divorce) With or Without Children”
  • “Notice of Right to Convert Health Insurance”
  • “Notice Regarding Creditors”

You may serve a party in a number of ways. The first and most preferable means of service is by acceptance of service. If the opposing party will sign an acceptance of service, service can be completed quickly and easily and without additional costs.


Sample Letter of Service

Here is a letter/email that we regularly send in order to encourage an opposing party to accept service:

Dear Daisy,

Ms. Tarascio has been has hired by Donald Duck to assist with an annulment of marriage. I have paperwork for you that I would like to get to you. We would like to avoid both the cost and embarrassment associated with having you served via process server. We are hoping that you agree and will accept service of the documents.

Accepting service means you would need to provide us with a notarized copy of the attached Acceptance of Service, which acknowledges that you have received the documents only, not that you agree with them. You may access a filed copy of the documents along with the acceptance of service using the link provided.

Once you have acceptance of service, you generally have 20 days to respond if you are within the state of Arizona, and 30 days if you are outside of the state. In the event you are willing to accept service and need an extension, we can generally be very accommodating to your extension requests. If you are unwilling to accept service, we will need to hire a process server and we will seek reimbursement of those costs from you through the Court.

Please let me know as soon as possible if you are willing to accept service, or if you have any questions. While we cannot give you legal advice, we do keep a list of Arizona divorce attorneys who can give you a free consultation and will work toward a resolution without charging unreasonable fees. Having committed attorneys on both sides will result in faster resolution and lower overall fees. Let us know if you would like the list of attorneys.

 

Feel free to borrow whatever language is helpful in encouraging your opposing party to accept service. If they agree, you will need a notarized copy of the acceptance of service to file with the court. This serves as the “Notice of Service” and is essential for your court file.

In the event that acceptance of service isn’t possible and the party is in Arizona, you can hire a process server. Process servers must be licensed in the state of Arizona, so you cannot have your brother, friend or neighbor serve the documents for you. You cannot serve the documents yourself either. Process servers generally charge between $40-$100 to serve documents depending on the person, how far they must travel, and how many attempts must be made.

Another alternative is having the sheriff serve documents. This is always an option if you are seeking to serve an order of protection; it may be possible for other documents as well.


Service via registered mail

Service through the mail is also a viable form of service.

Sometimes a petitioner may not know the whereabouts of an opposing party. In that case, we must make every effort to locate the party by using a private investigator, social media, contacting relatives, etc. After we have exhausted these possibilities and still cannot find the party, we can ask the judge to allow “alternative service.” Alternative service is most often service by publication in a newspaper. This takes weeks if not months and is not the preferred method of service, but it is an option when we have no other way of finding an opposing party.

No matter how we serve your opposing party, you must file a “notice of service” with the court to indicate how and when the opposing party was served.


Filing Your Response

If you have been served with a Petition inside Arizona, you have 20 days to respond. If you are located outside the state of Arizona, you have 30 days to respond. Receiving a Petition can be gut-wrenching, even when you knew it was coming. If you are blind-sided by a Petition, you are likely hurt, angry, scared and may be overwhelmed. It is easy to bury your head in the sand, but you can’t! You must respond to the Petition.

When drafting your response, many attorneys use an admit/deny format. A response may be as simple as “I admit paragraphs 1-6. I deny paragraphs 7-12. I’d like to be awarded attorney’s fees.”

The problem with the admit/deny format is that you cannot read the response without the petition next to it. Your entire case is controlled by what the petitioner has written. Instead, I recommend writing your response as a counter petition, so that anyone can pick up your response and know exactly what you are asking for. Instead of stating, “I deny paragraph 12”, consider saying “I disagree that the Petitioner should have sole legal decision making. Instead, Petitioner and Respondent should share joint legal decision making. Both Petitioner and Respondent have always been active parts of the children’s lives and should remain that way after divorce.” Anyone reading your response to paragraph 12 knows what you want and why you want it.

Note: Many people ask if they should be the Petitioner or Respondent. There isn’t really a right answer. There are advantages and disadvantages to both. As long as you know how to play to your case strengths, your status as Petitioner or Respondent should have no bearing on the outcome.

 


Motion for Temporary Orders

A motion for temporary orders may be filed with either the Petition or the Response, or anytime after a Petition has been filed in a given case. The motion requests an expedited and temporary order on an issue while the case is ongoing. Since it may take a year or even more to secure a divorce, a temporary order can be a lifesaver if you need child support, spousal maintenance, you want to sell the house, or you need access to community property controlled by your spouse. In fact, you can get a temporary order for almost anything. Some people need a temporary order on where a child will go to school, a parenting time schedule, who will control the family business, etc. If you have a pressing issue that cannot wait, file a motion for temporary orders.

When drafting your motion for temporary orders, you cannot be vague. In this motion, you must tell the court specifically what you would like. This is particularly difficult when asking for spousal maintenance. You don’t have the opposing party’s Affidavit of Financial Information AFI (more on this later), which is a key document when determining how much to ask for. Consider asking that the opposing party pay certain bills and try to ask for only the cash that you need. Regardless of what you are asking the court to do, be specific about what you would like and why you need a temporary order.


E-filing Divorce Documents

In Maricopa County many documents can be e-filed. This means you upload the document within the system and the clerk files the documents for you. (Not all counties have e-filing, so make sure and check with the local courts). It can usually take up to 24 hours after you have e-filed for it to be accepted by the court.

As of this writing, documents that are filed after the initial Petition and proof of service documents may be e-filed. That means you can e-file any motions, responses, notices, or replies.

Here are the instructions for how to e-file a document:

  1. Set up your initial account here: https://efiling.clerkofcourt.maricopa.gov/fdlogin.asp
  2. Print and sign your document for filing. Scan and upload to your computer as a PDF.
  3. Log in to your eFiling account and click “File Now.”
  4. Enter your Case Number and click “Confirm Case”; make sure that the Case Summary, shown in green, is for your case.
  5. Click on “Browse” next to “Select Document” and find your PDF version of the document on your computer; double-click on it, or click on it once and then click “Open.”
  6. Scroll down the choices on “Select Filing Type” to find the most appropriate/applicable category for your document.
  7. Fill in the “Document Title” using the COMPLETE name of your document (this will be on the right side of page one of your document, just under the Case Number).
  8. Click on “Upload Document” and look for the words “You may submit this filing” in green. You should also see your document’s title on the right side of the screen.
  9. Click on the “Complete Filing” button, and it should take you to a new screen labeled “Confirm Your Filing.” Verify the information, and click “Submit Filing.” This should take you to a “Filing Complete” screen.
  10. Print the confirmation page of the filing and mail with your document (if not required to be served pursuant to applicable rules of procedure, etc.) to the opposing party or counsel.

Sometimes there are filing fees associated with the documents that you have to file. In that event you will receive an email from the clerk stating exactly how much is owed and for which document. Only after you have paid the filing fee will the clerk actually file stamp and accept your document. Regardless of whether a fee is owed, you will receive an email from the clerk once your document has been accepted. At that point you will be able to access the document via the electronic court record (ECR), which we will talk about next. You can then print the documents with the file stamp and send a copy to the opposing party.

E-filing can save you much time and money by avoiding the costs of sending a runner to the court, avoiding actually traveling to the court, waiting in line, and filing your documents in person.


Electronic Court Record (“ECR”) Account

The ECR is another great example of how technology can make life easier and more convenient. It allows you access to all documents filed with the court in your case. The ECR is available for all documents filed since 2005, and all probate cases dating from 1997. ECR access is not available for juvenile cases, legal support staff, and pro hac vice. Registration is easy and simple; however, an Arizona driver’s license is required. It is important to note that the ECR and eFile systems are separate and require separate registrations. If you are not currently using the ECR, you can create an account by following the instructions on the link below:

https://ecr.clerkofcourt.maricopa.gov/Registration.aspx 

Once you add a case to ECR you can access documents for that case by clicking on the case. Your screen will then show the lists of court documents in the top half and preview the documents in the bottom half. The preview toolbar allows you to download and print the document.

IMPORTANT: The Preview feature requires Adobe Acrobat reader. If you don’t have Adobe Acrobat Reader, you can download it here for free:

https://get.adobe.com/reader/

If you ever need help navigating the ECR, you can reach the ECR technical support team at:

Phone:            (602) 372-5375 (press #2 > press #6 > press #4)

E-mail:           ecr@cosc.maricopa.gov


Default Judgment

The amount of time you must wait in order to file for default judgment depends on the waiting period for the particular type of documents you filed. For instance, even though the opposing party must respond within 20 days (if you’re in Arizona) to your petition for dissolution, there is a 60-day waiting period in Arizona from the date of service until you can actually get a divorce.

If no response has been filed by the deadline, then you can request a default hearing. In order to have the hearing set, file an affidavit of default. You need only mail or hand-deliver one copy of your affidavit of default to the other party. See the timetable below for the various times the other party must wait. If the last day falls on a weekend or holiday, then the following business day will be the day when you can file the default papers. You will need to serve the opposing party with the default paperwork and they have an additional 10-day grace period within which they can file a response.

After the 10-day grace period has passed, you can call the court to schedule your default hearing. In Maricopa County you can schedule the hearing online. Make sure to have your pleadings ready because they will want to know information like your case number and date of service.

For your default hearing, you (and several dozen other litigants who will have their hearing in the same session) will need to bring:

  • Three copies of your proposed decree
  • Three copies of an Order of Assignment
  • The certificate that states you’ve attended the required parenting class
  • Three copies of your proposed signed parenting plan
  • Three copies of a completed child support worksheet.
  • Support worksheet
  • Wage information for both parties (if you have it) to support your child support worksheet numbers
  • A 9 x 12 envelope addressed to the other party, stamped with three standard postage stamps
  • A copy of any prior child support orders
  • A birth certificate for each of your children

You will be seated in the courtroom on the day of your hearing, along with the others who are waiting for their default decree. When it is your turn the judge will call the case by stating your last name and that of the opposing party last. The judge will examine the petition and the other paperwork you have brought. She will be looking to make sure the petition matches the proposed decree. She may ask you questions and may even make changes to your decree. On one occasion a mother was asking that the court order joint legal decision-making. After the judge asked the mother some questions she determined that the father was currently in jail for assaulting the mother. Since the statute required the judge not order joint legal decision-making when there was significant domestic violence, the judge signed the decree awarding sole legal decision-making to the mother.


Changing Judges

Once the judge is assigned to your case, I recommend you do some research on the judge. Find out how he or she rules or has ruled in the past on issues similar to yours. Go online and join forums to see if you can determine a judge’s philosophy on issues you’re facing.

Judges do things differently from one another. They have different opinions, biases, and preferences, and different ways of doing things. They are, after all, asked to make judgments based on their application of the laws to your situation. While this seems obvious, you do have the ability to change judges one time, as a matter of right, before the judge has made a ruling based on the Arizona Rules of Family Law Procedure.

Some people want their issue to be handled as quickly as possible. Some judges move cases along as quickly as they can and actively manage their calendars and cases. Others wait to even set a trial until the parties have exchanged all information and they indicate to the court they are ready for a trial. Some judges have preferences on school choice issues, parenting time schedules, how they feel about the right of first refusal, etc. Some judges are very strict about deadlines; others will allow almost everything to come into evidence.

If you decide to change judges, you need only file a “notice of the change of judge.” This is not discretionary and it will be granted. This has a practical effect of slowing down your case, which can be advantageous or not depending on your circumstances.

Really, we are talking about matchmaking cases and personalities. With that being said, changing judges means you are rolling the dice again. You can’t elect the judge you want. In the event you cannot find enough information online, or from friends, you can either sit in the judge’s courtroom to hear how she or she rules, or you can talk to a local attorney. One of the benefits an attorney has is the history of going before a judge many times and learning their personalities and preferences.

In our next chapter, we will tackle discovery and disclosure.