Child Custody Article
How to Represent Yourself in Maricopa Family Court Part 2: Default Through Discovery
How to Represent Yourself in Maricopa Family Court Part 2: Default Through Discovery
In Part One, we discuss what to do prior to filing your family court action, determining your objectives and strategy, how to draft your initial pleadings, how to respond, and whether to request a motion for temporary orders. In Part two, we will discuss how to represent yourself in Default Proceedings and through Discovery.
Default
In the event you have served a petition on the opposing party and they do not respond, you have the opportunity to file for a default judgment. If the opposing party lives within the state of Arizona, they have 20 days to respond before you can initiate the default proceedings. If they are out of state, they have 30 days to respond. Another wrinkle to consider is that there is a 60-day waiting period before a judge may issue a divorce decree after you file. So, while the default rules allow you to ask for a default after 20 or 30 days, the Judge will not sign a decree of dissolution prior to 60 days after the service of the petition.
In the event that the proper amount of time has passed, you can prepare an Application and Affidavit of Default. Simply create an account to access all of our professional legal documents. Make sure that you bring two copies with you when you go to file the documents. You will need to immediately mail, hand deliver or serve a copy of the documents to the opposing party. They then have an additional 10-day grace period to respond to your initial petition. After the 10 days has passed, you can call the court to schedule a default hearing. In the event that you do not have children, you can submit your documents via mail to the court and await the Judge’s signature without scheduling a hearing.
To get a default judgment, you will need to submit a/an:
• Completed Decree of Dissolution
• Legal Separation or Order of Annulment and two copies
• Parent Information Program Certificate (if it has not already been filed)
• Signed Parenting Plan and two copies
• Completed Child Support Worksheet and two copies
• Order of Assignment and two copies
• Completed Judgment Data Sheet
• Wage information/pay stubs for both parties
• Other financial information such as childcare costs, medical insurance premiums etc.
• 9X12 envelope addressed to the other party with 3 standard current postage stamps and
• Copy of any prior Child Support Orders/Birth certificate for children
A default hearing is very informal. The Judge will ask you questions about what you have included in your decree. The Judge may make changes to what you have included in your decree. Also, you cannot put anything in your decree that you did not include in your petition. The other party is entitled to notice of everything that may end up included in the final paperwork. Alternatively, if you do not have children, you can submit the paper documents to the court for the judge’s signature. If you elect to go this route, make sure you deliver a copy of your documents to the judge’s chambers.
Helpful hint: Consider getting the phone number for the judicial assistant so that you can make follow up calls regarding the status of your documents.
Discovery/ Mandatory Disclosures
In Arizona, evidence that is not properly disclosed cannot be used in trial. On top of that, Rule 49 of the Arizona Family Law Rules of Procedure lays out what you are required to disclose even without the other party asking for the documents. In reality, self represented litigants rarely follow all of the rules and rarely disclose everything that they need to under rule 49. But this list will help you determine what you may want to request and what you are required to disclose. The most important and non-negotiable mandatory disclosure is the Affidavit of Financial Information (AFI). If your case involves child support, spousal maintenance or attorneys fees, you and your ex will need to submit a completed and accurate AFI. This is one of the only disclosure documents that must be filed with the court. Most disclosure documents are handled between the parties.
Rules of Evidence
In family court, the rules of evidence are relaxed unless one party files a “notice of strict compliance.” Under the relaxed rules, all relevant evidence is generally admissible unless it is repetitive or abusive. Generally, if it is relevant to the issues, a Judge will allow you to use the evidence. If a notice of strict compliance is filed, all of the rules of evidence including hearsay and authentication rules apply. If you are going up against an attorney and they have filed the notice, we suggest you seek advice from an attorney. He or she can help you properly prepare your evidence for submission to the court.
Interrogatories
A frequently used and very useful discovery tool is interrogatories. You can send both uniform and non-uniform interrogatories to the opposing party. Interrogatories are questions that must be responded to in writing by the opposing party within 40 days of receipt. This locks in the answer of the opposing party and provides valuable information you can use in making your case. As an example, the uniform interrogatories ask for the party to list all bank accounts, assets, insurance policies, pending litigation claims, etc. If your case has hotly contested issues, consider using the uniform interrogatories as a fantastic discovery tool for your case.
Request for Production of Documents
Like the interrogatories, a Request for Production of Documents asks that the other party deliver to you the documents you are requesting within 40 days of receipt. You can ask for any and all relevant documents including electronic accounting files, criminal convictions, drugs tests, even medical records. This is a fantastic tool to accompany interrogatories.
Request for Admissions
Requests for admissions are used less frequently than the two tools above, but can provide valuable information and insight for less money than the cost of a deposition. In a request for admissions, the opposing party is asked admit/deny questions and must either admit or deny the questions that you ask.
Depositions
Arguably, depositions are the most powerful discovery tool available to you as a litigant. A deposition allows you to ask any question that you would like of the opposing party (with few exceptions) under oath and on the record. This gives you the ability to test out questions and determine the opposing party’s demeanor and ability to answer difficult questions. It also locks down their story. You can depose both parties and witnesses by serving a “Notice of Deposition” upon the party or witness(es) you intend to call. Then, you will want to schedule a court reporter to take the deposition. Give yourself enough time to get the written transcript well before trial.
Subpoena
A subpoena allows you to get documents from third parties such as banks, or command a witness to attend a hearing. A subpoena must be issued by the clerk of the court and served upon the intended recipient.
Each discovery tool can help you to achieve a given objective. As always, know your strategy and what you must prove to determine which tools to use. Consider the cost benefit analysis of each decision and take advantage of either a certified legal document preparer, lay legal advocate, or an attorney for further information.
Contributing Attorney Writer: Billie Tarascio litigates family law and domestic violence cases at Modern Law.
Comments:
Default
In the event you have served a petition on the opposing party and they do not respond, you have the opportunity to file for a default judgment. If the opposing party lives within the state of Arizona, they have 20 days to respond before you can initiate the default proceedings. If they are out of state, they have 30 days to respond. Another wrinkle to consider is that there is a 60-day waiting period before a judge may issue a divorce decree after you file. So, while the default rules allow you to ask for a default after 20 or 30 days, the Judge will not sign a decree of dissolution prior to 60 days after the service of the petition.
In the event that the proper amount of time has passed, you can prepare an Application and Affidavit of Default. Simply create an account to access all of our professional legal documents. Make sure that you bring two copies with you when you go to file the documents. You will need to immediately mail, hand deliver or serve a copy of the documents to the opposing party. They then have an additional 10-day grace period to respond to your initial petition. After the 10 days has passed, you can call the court to schedule a default hearing. In the event that you do not have children, you can submit your documents via mail to the court and await the Judge’s signature without scheduling a hearing.
To get a default judgment, you will need to submit a/an:
• Completed Decree of Dissolution
• Legal Separation or Order of Annulment and two copies
• Parent Information Program Certificate (if it has not already been filed)
• Signed Parenting Plan and two copies
• Completed Child Support Worksheet and two copies
• Order of Assignment and two copies
• Completed Judgment Data Sheet
• Wage information/pay stubs for both parties
• Other financial information such as childcare costs, medical insurance premiums etc.
• 9X12 envelope addressed to the other party with 3 standard current postage stamps and
• Copy of any prior Child Support Orders/Birth certificate for children
A default hearing is very informal. The Judge will ask you questions about what you have included in your decree. The Judge may make changes to what you have included in your decree. Also, you cannot put anything in your decree that you did not include in your petition. The other party is entitled to notice of everything that may end up included in the final paperwork. Alternatively, if you do not have children, you can submit the paper documents to the court for the judge’s signature. If you elect to go this route, make sure you deliver a copy of your documents to the judge’s chambers.
Helpful hint: Consider getting the phone number for the judicial assistant so that you can make follow up calls regarding the status of your documents.
Discovery/ Mandatory Disclosures
In Arizona, evidence that is not properly disclosed cannot be used in trial. On top of that, Rule 49 of the Arizona Family Law Rules of Procedure lays out what you are required to disclose even without the other party asking for the documents. In reality, self represented litigants rarely follow all of the rules and rarely disclose everything that they need to under rule 49. But this list will help you determine what you may want to request and what you are required to disclose. The most important and non-negotiable mandatory disclosure is the Affidavit of Financial Information (AFI). If your case involves child support, spousal maintenance or attorneys fees, you and your ex will need to submit a completed and accurate AFI. This is one of the only disclosure documents that must be filed with the court. Most disclosure documents are handled between the parties.
Rules of Evidence
In family court, the rules of evidence are relaxed unless one party files a “notice of strict compliance.” Under the relaxed rules, all relevant evidence is generally admissible unless it is repetitive or abusive. Generally, if it is relevant to the issues, a Judge will allow you to use the evidence. If a notice of strict compliance is filed, all of the rules of evidence including hearsay and authentication rules apply. If you are going up against an attorney and they have filed the notice, we suggest you seek advice from an attorney. He or she can help you properly prepare your evidence for submission to the court.
Interrogatories
A frequently used and very useful discovery tool is interrogatories. You can send both uniform and non-uniform interrogatories to the opposing party. Interrogatories are questions that must be responded to in writing by the opposing party within 40 days of receipt. This locks in the answer of the opposing party and provides valuable information you can use in making your case. As an example, the uniform interrogatories ask for the party to list all bank accounts, assets, insurance policies, pending litigation claims, etc. If your case has hotly contested issues, consider using the uniform interrogatories as a fantastic discovery tool for your case.
Request for Production of Documents
Like the interrogatories, a Request for Production of Documents asks that the other party deliver to you the documents you are requesting within 40 days of receipt. You can ask for any and all relevant documents including electronic accounting files, criminal convictions, drugs tests, even medical records. This is a fantastic tool to accompany interrogatories.
Request for Admissions
Requests for admissions are used less frequently than the two tools above, but can provide valuable information and insight for less money than the cost of a deposition. In a request for admissions, the opposing party is asked admit/deny questions and must either admit or deny the questions that you ask.
Depositions
Arguably, depositions are the most powerful discovery tool available to you as a litigant. A deposition allows you to ask any question that you would like of the opposing party (with few exceptions) under oath and on the record. This gives you the ability to test out questions and determine the opposing party’s demeanor and ability to answer difficult questions. It also locks down their story. You can depose both parties and witnesses by serving a “Notice of Deposition” upon the party or witness(es) you intend to call. Then, you will want to schedule a court reporter to take the deposition. Give yourself enough time to get the written transcript well before trial.
Subpoena
A subpoena allows you to get documents from third parties such as banks, or command a witness to attend a hearing. A subpoena must be issued by the clerk of the court and served upon the intended recipient.
Each discovery tool can help you to achieve a given objective. As always, know your strategy and what you must prove to determine which tools to use. Consider the cost benefit analysis of each decision and take advantage of either a certified legal document preparer, lay legal advocate, or an attorney for further information.
Contributing Attorney Writer: Billie Tarascio litigates family law and domestic violence cases at Modern Law.
Comments:
QUESTIONS
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I am from Texas and had 2 children which reside in Texas with my ex. I want to know how can i get visitstion rights, where to file, and if I can get them during school breaks. The reason I ask is because i went back to Texas to visit them and my ex didn't let me see them and she won't even answer my phone calls.
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Me and my ex wife have shared custody of our six year old daughter for the past 5 and half years. My ex wife now wants to move from chandler to queen creek, changing my daughters school to the queen creek area. I stated this was not fair because my drive would increase to 15 extra miles per trip, adding more drive time during my visitation days. Is this a fair assumption on my part? If we go to court what should I expect from a judge's descision?
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I am divorced and my ex took my children out of the state of arizona. She didnt give written notice of this and she lied to me and the children that she was moving some where else in the state what can I do to get my children back???
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I am a father of a 5 year old and my ex is using meth, she's denying it now, but the signs are there and my ex mother inlaw has asked me to get full custody. How can I get emergency custody of my child?
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i am a low income family with 2 daughter ages 3 and 5. I need a good attorney that wont charge me too much. I heard about Modest Means and that they help low income families with family law situations. can u give me any info as to how I can get started with them or a list of attorneys that accept Modest Means? thank you
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I have 3 year old from a man who I was never married to. He has been paying court order child suppprt since my son was born. He is on birth certificate. When we went to court for child support, It was only for child support when we went to court not for anything else. I am wanting to move to texas with my fiancée, who wants to marry before I move to Texas but before I do I want to make sure I can move there with my son without any problems. I know my sons dad will want to fight it. Can he keep me from taking my son.
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I am the non-custodial parent and currently have a parenting Plan in effect. It will be due for modification at the end of August. My question is if I wish to modify the parenting plan and do not have agreement from the other parent, what must I do and by what time. Another question, will the current parenting plan stay in effect if I do not file for a modification of parenting time?
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I was divorced from my husband at the time me and him were both really bad off, I was granted joint custody, but only supervised visitation until I completed drug classes, took u.a.s and could prove I had a place to live and was remaining sober. I have been sober for 2 years now, my ex doesnt have my children now either his parents do, they have temporary guardianship. How do I get the guardianship removed and getr my custody of the children. The judge already said i had it i just had to do those things and I have.
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Filed for divorce in NM a year and a half ago, moved to AZ in January of this year, have custody of my 2 children. Father still lives in NM rarely calls or writes kids and hasn't visited once. Paperwork in NM was not fully filed for visitation or custodial but divorce was finalized. How do I gain full custody in AZ now that we live here and have established our lives.
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Where can I find a court approved parenting class?
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