Venue: The Importance on Where to File and When to File
A question that might come up before you begin your divorce process, is where and when do I file? This is a very important question, as where and when you file can impact your overall case. Let’s look at a couple of different scenarios.
SCENARIO 1: Husband and his Wife live in Maricopa County. Wife decides to relocate to Pima County without Husband. Wife has lived in Pima County for 4 months. Husband decides that he would like to file for a divorce. He files his Petition for Dissolution and a Motion for Temporary Orders in Maricopa County on May 1st and serves his Wife on May 2nd. Husband finds out that Wife has filed a Petition for Dissolution in Pima County on April 20th. Wife has not served husband yet. Husband, however, receives a Motion to Appear re Temporary Orders from Pima County. What can Husband do to avoid having his case in Pima County?
SCENARIO 2: Husband and his Wife live in Pinal County. Wife decides to relocate to Maricopa County without Husband. Wife has lived in Maricopa County for 1 month with some friends. Husband files his Petition for Dissolution in Pinal County on April 20th and serves Wife on April 22nd. Wife decides she would like to file a Petition for Dissolution in Maricopa County. She files her Petition on May 1st and serves Husband on May 5th. What County will hear the parties’ case?
In both of these scenarios, two petitions have been filed in different counties. It may seem overwhelming and extremely complicated to you when this happens. How is it possible that you could have TWO divorce cases pending? Don’t worry, you won’t continue to have two cases, but there are some steps you should take to protect yourself.
Arizona Statute §12-401 states, “Actions for dissolution of marriage or legal separation shall be brought in the county in which a petitioner is residing at the time the action is filed.” So how does that work when we have two Petitioners, both residing in a different county?
The best argument here is to prove that the Petitioner does not “reside” in the county where they filed. This can be done by showing that the parties were living in a marital residence in the other county, or that the other party has a job in the other county. This argument may work better in Scenario 2, where Wife was only staying with a friend in Maricopa County for 1 month.
Courts have also used the “first to file rule.” This means in Scenario 1, regardless of Wife not serving the Petition upon Husband, she filed first, and therefore, the divorce case would be held in Pima County. The Judge will likely send a notice to Maricopa County directing them to dismiss Husband’s Petition.
So how does one protect themselves to ensure they get to have their case heard in their County? FILE EARLY! Do not wait if you think there is any possibility that your significant other may file in a different county. Also, do not expect to file in any County where you are just “visiting.” If you plan to file in a County, make sure you are actually residing there.
Contributing Attorney: Billie Tarascio litigates family law and domestic violence cases at Modern Law.
i got married on my husbands reservation at the beginning of this year, and now hes already wanting a divorce but i dont want a divorce just yet. if he files for a divorce do i have to give it to him
Feb. 14,2014 Husband and I had a resolution meeting where he was suppose to rollover the per deim of his 401k plus 6k. it is on the paperwork to do so. It is now almost a year over and no surprise, he hasn't done a damn thing or how do I get him to or even know it is the correct amount? what if he has taken it all out by now? please help. I didn't say anything for I hoped he had done it and I just never got the paperwork, but I am pretty sure he didn't even attempt to. what can I do? sue him? hire my lawyer again? can I make him pay for my lawyer if I do have to get her involved again?
my husband and i have been married for 13yrs. i have asked and told him that i want a divorce cause we lost respect for each other and neither of us are happy. dv is within this marriage. i'm tired of the fighting, arguing, etc. do you think the judge would grant my request for dissolution of marriage? i need help with this please. i cant and wont take no more of this abuse from my husband.
If I owned my house before getting married, can I sell it before we're divorced without having to split the money I make from selling it?
I already divorced my x husband and he gave me alimony for 3yrs he is a retired u.s navy my question is do I have part of his retirement pension? We are married for 15yrs.
Husband wants to buy me of home mortgage which is under my name only. I would love to keep the home but I don't want to start a fight so I am considering moving out with my 2 kids. I want to be the primary household for my kids which is why I want them to live with me most of the time. What should I consider when moving out? Will this affect me negatively in or out of court?
My spouse and i both have a retirement plan thru our employer. We are 38 and 40 years old and getting divorced. Since we both have our own retirement plan, do we each get 1/2 of the others during a divorce? this seems silly? How does the court view this scenario? If only one spouse had a retirement plan i could see the division of it but it seems if both parties have a retirement plan, you would just keep your own?
I just found out that my husband went to Vegas and married the woman he was seeing. What are my rights in this situation? Who is the legal wife?
My divorce was final in May of 2007 I have been living with my xhusband since November of 2007. Can we apply for a Stipulation to Dismiss the Court granting of the divorce if we both agree to remaining married?
I have a question regarding The Uniform Services Former Spouses Protection Act. I retired from the military in 2010 and married my current spouse in 2012. We were not married nor had any relationship while I was on active duty. My question is, if my spouse and I are divorced is she protected under The Uniform Services Former Spouses Protection Act? Basically is she entitled to any portion of my retirement pay in case of a divorce?
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