Child Custody Article


How to Represent Yourself in Maricopa County Part 1: Initial Filings

How to represent yourself in Maricopa Family Court Part One: Your Initial Filings


This is the first in a multi-part segment on “How to Represent Yourself in Maricopa County Family Court.” My goal is to give you as much information as possible for you to get the best possible outcome given your objectives.

Determining Your Objectives/Setting Expectations

The first step in family court is that you should determine your objectives. Let’s say you are going through a divorce. I understand your objective is to get divorced. What I am asking is for you to think about what is important to you within your divorce. There are five main issues that will need to be decided:

1. Custody (Legal Decision Making and Parenting Time)
2. Property and Debt Division
3. Child Support
4. Spousal Maintenance
5. Other issues (marital waste, attorneys fees, etc)

Picture your life after divorce with regards to each and every one of the issues above. Be as detailed as possible. Plan your post divorce budget considering where you will live and work. If you have a transition plan to live with family or friends for a brief period of time, think about what your life will look like when you are done with that transition. Deciding you ideal outcome and what is most important to you prior to filing any paperwork is an excellent place to start when you are representing yourself. Consider coming up with your ideal outcome on each issue and then determining what you could live with for each and every issue. Work with a counselor, mentor of friend to do some serious planning.
 
After you have determined your objectives, it is important to understand that the “process” of getting a divorce or going through any family law matter is not a fast one. Setting your expectations to a realistic place will help you get through the process with your mental health in tact and gives you a better chance of meeting your objectives. Plan for a contested case to take a year or more. This is likely to be one of the most stressful events you will endure. Get a support structure in place in advance to help you through the process.

The Initial Court Filings (Petition/Response/Temporary Orders)

The first step in the process of the family court case is the initial filings. This includes the Petition (and all accompanying documents), Affidavit of Service, Response (and all accompanying documents), and potentially filing for temporary orders. You or your spouse must file a Petition for Dissolution with the court and serve the other party. Service must be according to the rules of procedure. Most often this is either through a process server or your spouse accepting service by signing an acceptance of service.

Whoever files the documents first is the “Petitioner” the non-filing spouse is the “Respondent”. You will retain these titles throughout the duration of your case, even in modifications that may come years from now. In reality, it doesn’t really matter if you are the Petitioner or Respondent. There are strategic advantages to both.

What to Include In Your Filing

When deciding how specific you want to be in your petition, ask yourself if your spouse is likely to agree with each and every aspect of what you would like. In the event that the two of you agree on everything, consider filing a very specific petition outlining all of the details of how you would like custody, property division, child support, spousal maintenance and any miscellaneous issues addressed. If you agree on everything, filing a comprehensive petition (with separate parenting plan and child support worksheet) allows the two of you the option to proceed via default. This allows the other party to bypass filing a response (and paying the filing fee for the response).

In the event you and your spouse are not likely to agree on every aspect of the divorce, consider filing a more vague petition with requests such as “child support pursuant to the guidelines” or requesting “an equitable distribution of property and debt”. This allows you to take full advantage of the discovery process without committing yourself to a position that may change.

A Brief Introduction to Discovery

 In discovery, you will have access to information that you may not have previously had. For instance, if you spouse owns a business you may want to have it valuated before you commit to your spouse taking the business in exchange for you keeping the house. You will likely need to discover how much of your retirement accounts are community property (earned during marriage) and how much might be separate (premarital) property. Leaving your petition rather vague gives you the opportunity to gather more information as you refine your position. By becoming educated on the law, you can better assess your position of what is fair or what you can live with during your divorce. It can also help you to negotiate what is really important to you. For instance, let’s say you learn that you spouse spent $50,000 in secret gambling over the last three years. You may have a marital waste claim for $25,000. Instead, you may use that potential claim to settle other issues in the case that are very important to you.

The Response

Likewise, if you are the Respondent filing a response, consider also filing a “counter-petition” to address any issues that your spouse may have failed to mention. Also, you do not need to follow the traditional “admit or deny” format for each paragraph of the Petition. You can instead “plead affirmatively” and tell the court what you want. This allows your Response to be understood without having the Petition read side by side. All of the above guidance and suggestions apply to the response except for the paragraph regarding default. A respondent cannot ask for a default judgment on an initial divorce filing.

Motion For Temporary Orders

Finally, both Petitioner and Respondent may file a “Motion for Temporary Orders” along with the Petition or the Response. The request for temporary orders allows you to request that the court implement an order for temporary spousal maintenance, child support, use of the home, payment of the bills, attorneys fees, etc. In my experience about half of all cases have a temporary order in place. This is because divorce may take a year or more. In the mean time, arrangements have to be made. If the parties are unable to agree on the details of the arrangements, the court will need to put orders in place that allow for parenting time, payment of bills, and where someone will live. Other issues that may need to be addressed include where the kids will go to school, whether or not a child will be given a certain medication, travel arrangements between visits. Any issue that cannot be decided by the parties may be decided by the court as long as it falls within one of the five topics outlined above. Final Thoughts The next installment in the series will cover rule 49 mandatory disclosures and other discovery tools available to you.

Contributing Attorney Writer: Billie Tarascio litigates family law and domestic violence cases at Modern Law.


Comments:

QUESTIONS

  • My divorce and custody order was done in Arizona. My ex husband and I both moved out of state over a year ago. Is our court order from Arizona still valid or do we need to go back to court? Thank you for your help!
  • can a grandparent with temorary sole and legal custody give the child to a foster home when there is a birth parent able and wanting to care for them? would the courts allow this? (the parent is in another state.)
  • The issue of Right of First Refusal has come up. Can the Right of First Refusal be customize to fit our needs, or does AZ law always require one parent to notify the other parent when they can not watch the child during their scheduled time, even if it is only for an hour or two. Can the plan be written stating that if the absents is longer than 8 hours than the Right of First Refusal applies, but if the time is less than 8 hours the parent has the right to contact the grandmother to watch our child? The grandmother has been involved in our child's life since birth. Custody is joint. Thanks
  • MY SON'S FATHER AND I HAVE NEVER BEEN MARRIED, NEVER LIVED TOGETHER AND HAS BEEN IN AND OUT OF MY SONS LIFE SINCE HE WAS 2 WEEKS OLD. HE IS ON THE BIRTH CERTIFICATE BUT IVE PHYSICALLY AND FINANCIALLY SUPPORTED MY SON WITHOUT A DIME FROM HIS FATHER OR HELP FROM HIS FATHERS FAMILY. HE'S MISSED ALL BIRTHDAYS, HOLIDAYS, ETC. HOW CAN I GET FULL LEGAL CUSTODY OF MY SON AND HOW EXACTLY WOULD THE PROCESS WORK IF HIS FATHER COMES AND GOES? I AM NOT LOOKING FOR CHILD SUPPORT. I JUST WANT LEGAL DOCUMENTATION SO THAT HE IS NOT ABLE TO TRY TO TAKE MY SON FROM ME. SOMEONE HELP??
  • Can i fight for my childs custody and visitations rights ?
  • Is it illegal for a mother to hold her child financially hostage from the father? ex: “you can see your child but you have to pay me $650 to see him”
  • I am trying to file for full custody for my 2 year old son. He lives with me full time since my ex husband has moved out of state. Since he has left he has no paid child support either. My problem is that I don't know his address or where exactly he works. I feel like I should be able to ask him but he always dodges the questions. His family doesn't really like me and blames me for the divorce. I filed originally through pinal county. Do i have to file through them again?
  • My children's mother dropped the kids off with me December 31, three days after my agreed weekly visit not wanting to be responsible for taking care of them anymore. Ive got documentation and witnesses that she dropped them off with the intent to sign over her rights as a mother so she could do as she pleases. How do I protect myself legally so she cannot come and go taking them from a stable home after not being in contact once for the past five weeks? She dropped them off at my job with only the clothes on their backs. I am employed and have constant care for them, how do I protect myself?
  • where do i go to find information on parenting classes
  • I filed for emergency custody of my daughter. It was granted. We returned to court within the 10 days and the judge kept it in place for the time being and scheduled a meditation a few months out. I no longer feel the emergency custody is necessary. Can I cancel it without having to go through the meditation process?

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  • State Bar of Arizona
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    Referral number 602-257-4434
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    Referral number 520-623-4625
  • National Domestic Violence Hotline
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