The Divorce Process—What You Can Do on Your Own and When Advice is Recommended

Family Law Legal Consulting—Offering Unbundled and Flat Rate Services

Kristy Clairmont, Esq. 520-304-1722             familylawlegalconsulting@gmail.com

It is no secret that getting divorced is far more complicated than getting married. That said, most people in Pima County are trying to get divorced without legal assistance. Unfortunately, many people cannot afford to hire a traditional litigator who takes over the case from start to finish. If you are considering divorcing without hiring an attorney, the following article discusses some other options for legal assistance, helps identify areas that can be particularly tricky, and provides a step-by-step guide to the divorce process.

How can I get legal advice that I can afford?

There are many legal assistance resources available that can help you self-represent effectively. At Family Law Legal Consulting, I offer unbundled legal services at either a flat rate or hourly charge. I like to think of it as a menu of services that you can choose from based on your needs and financial situation. Ultimately, you remain in control of your case, and the fees you incur depend on the services you choose.

Is there any advice that is free?

If legal fees are simply impossible to afford, you can also utilize one of the free legal assistance clinics available through the Superior Court Law Library, Step Up to Justice, or Southern Arizona Legal Aide. As a final option, the Pima County Bar Association also offers thirty-minute consults for $35.00 with local family law attorneys. Ultimately, divorce is not easy and most everyone benefits from legal advice along the way. Keep in mind that the internet, your co-worker, your friend-of-a-friend, and your family member most likely did not attend law school and should not be relied on for legal advice. Take the time to reach out to a professional for a consult so you can proceed with confidence.

When do most people need to seek some legal help?

This varies by case and circumstance. The following list is not meant to be exhaustive, but the issues identified below can be complicated, or may be quickly resolved if the person understands the process and underlying laws.

• Identifying “community property” vs “separate property” and each spouse’s rights
• Division of Retirement assets
• Domestic Violence
• Children in common with a history of domestic violence, drug use, a criminal record, or mental health issues that could affect children’s safety.
• Correctly serving the other party (especially if they avoid regular/less expensive means of service)
• Getting financial documentation (Called Disclosure) from the other party
• Determining child support
• Understanding each parent’s rights concerning Parenting time and Legal Decision-Making
• How to access and approach Mediation
• Requesting a Default
• Preparing for a Default hearing and determining if notice to the other party is necessary
• Asking for a default decree without a hearing
• Spousal Maintenance—do you qualify, do you have to pay it?
• General guidance through the divorce process
• Preparing for trial
• Asking for Temporary Orders and preparing for the hearing
• Relocation of either spouse
• Military service and divorce

So, how do I get started?

The following is a step-by-step guide to the process. I refer to the current self-service packets, available at the Pima County Superior Court website and law library, that you should complete or reference while going through the steps. I also encourage seeking legal advice when necessary or appropriate for your set of facts and circumstances. When choosing to self-represent it becomes your responsibility to understand your rights, risks, and the overall process.

The first seven steps listed below apply to everyone. The final steps will depend on whether the other party filed a Response.

Step One: Can I file in Arizona?

Have you lived in Arizona at least 90 days? Generally, it is required that you live in this state at least 90 days prior to filing for divorce, and absent other circumstances, that you file in your county of residence. For example, if you live in Sierra Vista, you should file in Cochise County. There is a military exception, however. So, it is best to seek advice if you aren’t sure if this exception applies to you.

Step Two: What is this going to cost me?

Can you afford to pay the filing fees and service fees?

Current filing fees as of April 2020 are:

• Divorce Petition–$274
• Parenting class (mandatory for both parties if have minor children)—$45
• Service—Sherriff requires $200 deposit; private process servers average $65-$85 for 3-5 attempts

If you cannot afford these fees, fill out:

• Packet # 12-Deferral-Waiver of Fees & Costs

YOU MUST FILE THIS PACKET BEFORE YOUR PETITION FOR DIVORCE. IT WILL TAKE 5-7 BUSINESS DAYS FOR THE JUDGE TO PROCESS THIS PAPERWORK. ONCE IT HAS BEEN APPROVED, YOU MAY FILE THE OTHER PAPERWORK, INCLUDING YOUR PETITION FOR DIVORCE, AND WILL PAY ONLY WHAT THE JUDGE HAS ORDERED YOU TO PAY.

Step Three: Which packet do I use?

Do you have children under the age of 18? The answer to this question is important because it determines which packets you should complete.

Answer: No minor children.

• Complete Packet #5—Divorce without Children

Answer: Yes, we have minor children

• Complete Packet #2—Divorce with Children

Divorcing with children requires additional packets:

• Packet # 9—Parenting Plans
• Packet # 8—Child support

To be clear, neither Packet #8 or #9 are required to start your case; however, I highly recommend filing Packet #9 (the proposed parenting plan) at the same time you file the initial petition (Packet #2).

Step Four: Do I need to ask for Temporary Orders?

Whether you have children or not, you may also need to request temporary orders.

Temporary Orders are just that—temporary. They are orders from a judge that temporarily resolve issues during the divorce, but are not the final orders for divorce.

For example, you may need orders about who can remain in the home or how joint bills will be paid while the divorce is on-going. If you and the other party are unable to reach an agreement regarding these immediate issues, you can file for temporary orders at the same time you file your initial petition for divorce. A hearing will be set within 60 days to decide the issues you identify.

To request these orders, complete:

• Packet #13—Temporary Orders

Step Five: How do I file this stuff?

Follow the instructions in each packet regarding the number of copies to make before you file the paperwork. Generally speaking, the clerk at the courthouse will keep your originals. You need a copy of each document for the other party, and you need a copy for your records. If requesting temporary orders, you will also need a copy of everything so you can give it to the assigned judge.

Step Six: How do I get the papers to the other party?

Getting the documents you just filed to the other party is what the court calls “Service.”

Use Packet # 10 which explains all the available ways this can be accomplished.

PROPER SERVICE IS THE MOST IMPORTANT STEP!!

Your divorce process cannot continue without this step. You live in Arizona, a community property state, which is a subject that cannot be given proper justice in this article. The important thing to know is that, if the divorce is ultimately granted, the community ends on the date of service. Also, the other party’s Response period and the mandatory waiting period don’t begin until service is accomplished. So, make sure you’re serving that person properly or your divorce will not be able to move forward.

Step Seven: Now I wait?

Yes, now you wait out the Response period. After service, the other party has 20 days to file a Response if they were served in Arizona. If they received the documents outside of Arizona, they have 30 days to file a Response. The day service is accomplished does not count. For example, if the other party was served on April 1, the other party has until 5 pm April 21^st to file their Response.  If the 20-day deadline falls on a weekend or court holiday, the Response is not due until 5 pm the next business day.

The steps you take from here depend entirely on whether the other party files a Response.

Technically, the other party is supposed to provide you with a copy of anything they file, but this doesn’t always happen. I recommend that after the Response period is nearly over or complete that you go to the second floor of the court and look up your case in the electronic record called “Agave.” You can also search from your home if you have access to a computer. You simply put in your name to check the records. If the record shows a Response, you can print a copy at the courthouse, but it costs $.50 per page. Know that there is a 48-hour lag time for the documents filed to reach the electronic record.  If the electronic record is not displaying your case at all, you can ask the staff if they can locate your case and if a Response has been filed.

NO RESPONSE FILED—Step Eight: How do I get a Default?

If no Response has been filed, complete Packet # 11—Obtaining a Default.

Remember, asking for a default just means the other party didn’t respond. People often choose not to respond if they agree with the requests in the divorce petition. The party in default (the one who didn’t respond) is not in trouble with the court in any way. A default simply allows the case to still move forward.

Follow the instructions in the packet. You will have to mail a copy of the completed form to the other party after you file it.

One small note about people with children. The other party is not required to respond, but they are required to take the Parent Education Class.  Without the class, you cannot receive joint legal decision-making orders, and you can’t ask to modify any parenting orders that are made.  You can pay for the class at the Clerk’s office in the Court and instructions will be provided for registration.

After you file the documents in Packet #11, the other party will be given an additional 10 business days to file a Response (business days means you do not count weekends or holidays).  After the 10 business days have passed, the court will enter the default, which allows you to proceed in your case by either attending a default hearing or submitting a default decree directly to the assigned judge. Start counting the 10-day period on the day after you filed the Request for Entry of Default. For example, if you filed the Request on June 1, then you begin counting on June 2^nd assuming it is a weekday. Remember to skip weekends and holidays.

NO RESPONSE FILED–Step Nine: How do I finish this?

You have two ways available to obtain a default divorce decree.

Prepare for and attend a Default Hearing:

After the default has become official (the ten business days have passed and the other party still did not file a Response), you can call the number that was provided by the Clerk’s office when you requested the Default and get on the schedule for a default hearing with the assigned hearing officer. After a default hearing, you are officially divorced. In most cases, you will not be required to give the other party notice of the hearing date, and you will be the only one attending the hearing. You cannot schedule this hearing any sooner than 61 days after the date of service. Remember, the actual date of service does not count. It will be up to you to count out on the calendar to make sure you are abiding by this rule. If you schedule the hearing too soon, you won’t find out until the day of your hearing when the Judge tells you to reschedule.

When you sign up for your hearing date, the scheduler will give you instructions about when and where to be on that date. Generally speaking, the default hearing will take several hours to complete. While you await the hearing, you must prepare the required documents. You will need the original plus two copies of the following:

Divorce-no children

• Packet #7—Divorce without Children-Decree
• Any signed settlement agreement

Divorce with children

• Packet #4—Divorce with Children-Decree
• Packet #9—Parenting Plan (If you already filled this out and filed it, you will need copies of what was already submitted to the court.)
• Child Support Worksheet—See Packet #8 for instructions
• Child Support Order—Available on the state court website: https://www.azcourts.gov/selfservicecenter/Child-Support-Family-Law/Family-Law-Forms/Establishing-Child-Support
• Income Withholding Order—Also available at the state court website: https://www.azcourts.gov/selfservicecenter/Child-Support-Family-Law/Family-Law-Forms/Establishing-Child-Support

REMEMBER—Your Decree must match the petition exactly unless there is a separate agreement that both parties signed.

Submit a Default Decree directly to your assigned judge:

If you qualify, you can avoid having to attend a default hearing at all and instead submit an Affidavit stating that you meet the requirements listed below in addition to the above list of documents and copies directly to your assigned judge. The following list of requirements must be true in order to qualify (contact an attorney if you don’t understand what any of it means):

• The Court has personal jurisdiction under A.R.S. § 25-312.
• The Court has jurisdiction over any children involved in the case.
• The Respondent was not served by publication in a newspaper.
• The Orders requested in the Default Decree match the Orders requested in the original or amended Petition, or a settlement agreement has been signed by both parties and is included with the Decree.
• Neither party is a minor or incompetent.
• The conciliation provisions (marriage counseling) have been met or do not apply.

Once the decree is signed, the way it gets back to you varies. Most often, a copy of the signed decree will be mailed to you at the address you list on your documents. Once you have this signed decree, it is your responsibility to give a copy to the other party within three days. The official date of your divorce is the stamped date on the first page of the Decree. If you need a certified copy of your Decree, you will need to go to the Court house to the Records Department on the 2^ndfloor and pay the associated fee to obtain a copy that has the required raised seal.

RESPONSE FILED—Step Eight: What is Disclosure?

The other party has filed a Response. This begins the 45-day period that the courts call “Disclosure.” This is simply the time period when the parties exchange documentation so that everyone has the same information. For example, retirement account statements, deeds and all information related to home purchases and mortgages, debt statements, bank statements, property appraisals, pay stubs, taxes, police reports, and any other item like text messages, recordings, photos, and medical records that may be used as evidence down the road all need to be exchanged. To be clear, none of this is filed with the court. A copy is provided to the other party or their attorney within the 45-day period that is termed the “Initial Disclosure” period. Unfortunately, some people will need to update the documents as time goes by, so you must continue to disclose (or provide additional information about financial and other issues) until the day of your divorce trial. Disclosure is probably the least understood step in a divorce, but it is very important because each of you have a better chance of reaching a reasonable result when you are both working with the same information.

If you do not disclose the documents timely and properly, you cannot use these documents (“evidence”) during your trial and the judge may hold you in contempt for failing to follow the mandatory disclosure rules.

RESPONSE FILED—Step Nine: Can we Settle this?

Settlement or Consent Decree: Just because the other party filed a Response does not mean all roads lead to a lengthy court trial. As soon as the disclosure period has passed, you can begin to negotiate. If a settlement is reached, it must be written down and signed by both parties in front of a notary either in the form of a settlement agreement or a Consent Decree (available on the court website but there is no packet #.) The Consent Decree and/or Settlement Agreement can be submitted to the assigned judge for approval as long as you are past the 61-day waiting period. Remember, the waiting period is mandatory in Arizona so even if an agreement is reached right away, you cannot submit that agreement to the judge assigned to your case unless 60 days have passed since the date the other party was served.

Mediation: Mediation is also a great tool to utilize. Free mediation for parenting time and legal decision-making is available in Pima County. Mediation is actually required before the judge will make any final orders. This service is a free and wonderful opportunity to try and reach your own solution for your family moving forward. Even if you can’t agree on everything, having a partial agreement will greatly decrease the overwhelming prospect of preparing for a divorce trial. The free mediation can only be used for parenting time and legal decision-making issues. If there are other issues that you think you could settle if given the opportunity, then private mediation may be something to consider. It is much cheaper than hiring a litigator for a divorce trial, and allows you a broad range of creative solutions for all the issues in your divorce. Unlike court ordered mediation for parenting plan issues, Mediation with a private mediator, requires that both parties be willing participants. If the mediation is successful, then a consent decree and any settlement agreements will be prepared by the mediator and submitted to the court for approval. Once submitted, your divorce will be final.

Early Settlement Conference: Another, often overlooked, path to settlement that is free is an Early Settlement Conference.  If there are extenuating circumstances, you may be a good candidate for this request.

Extenuating circumstances could be:

• One party is ill
• One party needs to travel or move soon
• One party is facing jail time, or
• The market is volatile or good as far as property sales or retirement valuation AND there are only a few issues that need to be settled,

You would explain to the judge what issues remain and why the parties would benefit from an early chance to settle things. The settlement will be granted if the judge assigned to your case thinks that you qualify and would benefit from this chance to settle early. If the request is granted, an order will be issued with a date and instructions on how to find out the time and place. You will also need to prepare a Resolution Statement so that the judge running your settlement conference clearly knows the issues and what your proposed solutions are. If spousal maintenance or child support are at issue, an updated financial affidavit will also need to be filed. If you filed an affidavit in the last four months and nothing has changed, then you won’t need to file a new one. If the conference is successful, your divorce will be finalized and you will be provided with a minute entry or a consent decree.

There are many other forms of alternative dispute resolution available in our court system. This article is not meant to be an exhaustive list of possible ways to divorce without a court trial, so I encourage you to research those methods if an amicable settlement is what both parties are hoping for.

RESPONSE FILED—Step Ten: Settlement options are not working, how do I get a trial?

Once the disclosure period is over, you must submit a Resolution Statement that identifies all remaining issues and your proposed resolution.

Then, you need Packet #14—Trial Preparation.

This packet has several necessary documents, but they will not be submitted all at once.

First, you will complete the “Motion to Set and Certificate of Readiness.” Follow the instructions in the packet carefully as to how many copies you need and where each copy should be delivered.

The judge will then issue a “Family Law Trial Notice” to both parties. This notice is VERY important because it lays out all the deadlines for filings and the dates you must appear in court. If you have children and haven’t attended mediation, you will also be receiving an order for mediation. In order to prepare for your trial, you must complete the following list. NOTE: You must complete the list by the court’s deadline. You will find the deadline in the Trial Notice.

• Disclosure Updates
• Complete and file a Pretrial statement
• File updated financial affidavits
• Inventory of Property and Debt
• Proposed Parenting Plan
• Exchange exhibits with the other party; Provide copies of your exhibits in advance to the Clerk’s office on the second floor if you have more than 15
• Attend mediation and all settlement conferences and pretrial conferences

These items may not apply to your case as everyone’s case is different, but when self-representing, this is when you must dig in and do the work. A failure to meet the deadlines and properly prepare will equal a result that will likely make you unhappy. For example, if you do not complete a pretrial statement the court can sanction you and not allow you to present any evidence or testimony on the day of your divorce trial. You must take ownership in this final leg of the process if you plan to self-represent in court.

You will be given a final opportunity to settle before the hearing, and I recommend settling as much as is humanly possible in order to limit the issues you have left, as well as, limiting the number of major decisions you are delegating to a complete stranger: i.e., the judge.

If you have any questions about the above list, I highly encourage you to seek legal advice from an attorney.

RESPONSE FILED—Step Eleven: How do I prepare for Trial?

Unfortunately, there is no step-by-step guidance I can provide here because every trial is different. Here is some general direction.

1. Preparation is your best friend. You must know your case inside and out. I recommend writing each issue on a separate sheet of paper and recording what you want and what the other party wants as far as outcomes for that issue. Then start writing down in bullet points what the judge needs to hear that supports your position or pokes holes in the other party’s position, as well as, the evidence you have to support what you tell the judge. For example, if your spouse is asking that you pay $1000.00 a month in spousal maintenance, you would need to break down precisely why this amount is unreasonable and what you can afford to pay using evidence like your pay stubs and monthly bills. Remember, all potential evidence must be identified and provided to the other party BEFORE the hearing. So, do not put off preparation to the day before or your evidence will not be allowed.

2. Take time developing testimony and determining if there is a witness that would help your case. For example, is there a friend or family member that was a first-hand witness to an event that you are depending on in your case? Any witnesses must be named in your pre-trial statement. If you have one person who can testify that you are a good parent, that witness will be enough, unless there is another person who can add something substantially different and overall, help your fact picture.

3. Don’t focus only on your case. You must look carefully at the other party’s pre-trial statement and attempt to anticipate what they will say. This allows you to prepare evidence that can disprove their claims or at least not be caught off guard.

4. Prepare questions for the other party. This is formal court. You are not just having a conversation with the judge and the other party. You have to testify and then ask questions to the other party. There are also rules of evidence and rules of court procedure that you need to keep in mind during a trial or hearing.

5. Tell your story. This is your life. No one knows it better than you. Try to identify evidence and witnesses that serve a purpose. If you can’t identify how it helps your case, then you probably want to use it for emotional reasons. Generally, evidence and witnesses serving only for emotional purposes will not help your case.

6. Emotionally Prepare. You will likely not get everything you are asking for so it’s best to emotionally prepare for an unwanted outcome. You also may not get a ruling in court. Judges can take the matter “under advisement” where they have 60 days to issue a ruling. The ruling will be mailed to you.

7. If you have children, you must find a way to walk out of the courtroom and co-parent.

As stated many times, every case may require a different approach or process based entirely on your facts and circumstances. It is not an easy process, but if you commit to it and work at it, you can do it. As a lawyer, I do believe that seeking legal advice along the way is recommended, if not required. Utilize the resources you have available.

If you would like to set up a consult or have questions about the flat rate services I provide, please feel free to contact Family Law Legal Consulting at 520-304-1722.