Divorce & Annulment Article
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.
Comments:
QUESTIONS
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My husband and I have a covenant marriage and now I wish to file for divorce. What extra paperwork is necessary for me to do that?
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My husband wants a divorce and only married 9mo. He moved his girlfriend into our home yes I am still in the home also! This is adultery and illegal in the state of AZ! Our home loan is in his name only but title is in both. We started the paperwork before marriage but closed on the home after married. We have a car loan in both our name. He is telling me that his lawyer said I’m not in titled to anything because he is the one who pays the bills. He is a City Emp with retirement and savings similar to a 401k. He is pushing to sign the divorce papers now and leave with nothing. I helped build!
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I live in Arizona and my spouse lives in Texas. I do not have any residence or employment information on him. Do I file for divorce in AZ or do I file in TX? I have had no contact with him since 2012. We have no children or property and I prefer to file on my own due to financial issues. Thank you.
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Hello. I am finally attempting to get a divorce from my husband. I am from WA State and fled to get away from him and his family who were threatening my children and I. We have one small child together. When he was a child his mom changed his last name, not legally from his birth name to her maiden name. And we were married with her maiden name, not the name on his birth certificate. My question is does this make our marriage legal?
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I LEFT MY HUSBAND AND HAD TO START COMPLETELY OVER SO I CASHED IN MY 401K...IS HE ENTITLED TO THAT MONEY IF WE WERE ONLY MARRIED A YEAR AND I ACCRUED IT BEFORE WE WERE MARRIED?
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How long does it take for a divorce to finalize in that state os Arizona?
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Please describe what the courts look at for "best Interest for the child". Do they take into account what the child(ren) want?
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My husband filed for a divorce. Do I have to file a response or can I just let it default after the 20 days if I agree with everything on the paperwork I was given in regards to the property he wants?
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What to do with an exwife that has not followed the judge orders on the separation of goods after the divorece was done. She is still taking money from my account,she has taken things from my home, how can I get her out of my life and make her return all the money and goods she has taken afte the divorce?
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does the parent paying for the insuranse for the child have to pay what ever the insurance does not cover
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