Domestic Violence Article
Domestic Violence Survivor's Guide
Domestic Violence Survivor's Guide
By Maricopa County Bar Assoc., Young Lawyers Division, Domestic Violence Committee
Steps for Improving Victim Assistance - Procedure for Using Police in an Emergency:
- Call 9-1-1 and give a brief description of the incident. The 9-1-1 operator has access, by computer, to your address and can dispatch someone in case you are unable to give an address.
- When the police arrive, give a detailed description of the incident.
- Ask the police officers for their names, badge numbers and phone numbers so that you may follow up and obtain police reports and other information. (ask for business card).
- If police will not arrest the suspect or want to arrest the victim, request that the officers' supervisor be dispatched.
- Ask the police officers for a victim assistance pamphlet and program phone number to obtain further information.
- Obtain a police report number while police officers are present. Ask them the location for obtaining a final police report.
- Obtaining a final copy of the police report:
- Try calling the police department before you try to track down the location of the police report. Procedures and locations vary with each police department.
- Go to the same police station where the police officers who took the initial report are employed.
- Give the clerk in the department of records or other designated department the approximate date of the report and, if possible, the report number and the officers present.
- Police reports cost approximately $5.00, depending upon the department. Check to see whether there are circumstances in which the clerk will waive fees in the event that you cannot afford to pay.
There is a list of domestic violence resources by county under the General Info topic and the subtopic Arizona Resources. There are resources for crisis counseling, shelters/safe houses, victim services, counseling for abusers, legal services and justice court locations for orders of protection/harassment.
Orders of Protection and Injunctions Against Harassment
Domestic Violence is a crime.
- You have the right to be safe.
- No one has the right to threaten or abuse you.
- One of the first steps you should take to protect yourself and your children is to get an Order of Protection or Injunction Against Harassment.
- You do not need a lawyer to get one, you can do it yourself.
What are Orders of Protection and Injunctions Against Harassment?
Both Orders of Protection and Injunctions Against Harassment are court orders that will help you prevent future abuse and harassment from another individual if that person has abused or harassed you in the past. Both types of court orders may forbid certain acts, including domestic violence; order a person to stay away from certain places including your residence, your school or your children's school, your work place, etc.; or prohibit a person from making any contact with you.
What is the difference between the two?
The most important difference between the two is who they apply to and what you need to show to get them. You can get an Order of Protection against a spouse, a former spouse, any person who you live with or who you have lived with, someone with whom you had a child and against most other relatives that are related by blood or by marriage.
You must be able to show the court that the person you want protection from has committed or may commit an act of domestic violence. You do not have to be physically injured or hurt to be a victim of domestic violence. You can show that the other person has done or may do any of the following:
- endanger you
- threaten you or intimidate you
- assault you with their body or with a weapon
- interfere with the custody of your children
- restrain you or hold you prisoner
- kidnap you
- trespass on or damage your property
- display a deadly weapon or threaten you with a deadly weapon
- other acts of disorderly contact, etc.
The person only needs to have threatened or abused you once. You do not have to be related to the other person to get an Injunction Against Harassment, but you must be able to show more than a single threatening or abusive event. You must be able to show that the other person has repeatedly harassed, intimidated, threatened, annoyed or abused you within the past year and that those things have upset you; (you must show that you are concerned that the other person's acts have made you fear for your safety or life.
How do I get a court order?
You can go to any city court, justice court or superior court and get a packet of instructions and forms that contain the Petition, a blank Order and a blank Certificate of Service of Process form. Follow the instruction and fill out the sections of the Petition and the Order that ask you why you want the Order and what relief you want. Be as detailed as possible when you fill out the forms, making sure you have the following information if possible:
- your address and phone number (or ask to keep it confidential)
- your employer's address and phone number
- the name of your child(ren)'s school(s) and the addresses and phone number(s) (only if included on Order)
- other addresses you want the other person to stay away from
- the other person's address, phone number, employer, and a description of that person
- any papers showing past civil or criminal court actions against that person
- any old orders against that person
- a list of the things that person has done be specific; include dates, if you called the police or had to go to the doctor or hospital. Bring any police reports, medical records, etc. ormation about your financial situation. Bring old pay checks, bank statements, or anything showing that you get ( government assistance (this is necessary to determine if you qualify for a waiver and/or deferral of fees).
If the person against whom you are seeking the Order of Protection does not know your address or telephone number, you do not need to list it!
What do I do after I fill out the forms?
After you are finished with the forms, return them to the clerk. You will then be directed to the emergency judge of the day. The judge may ask you to explain what you have put on the forms or may ask you other questions. The judge sees many people each week asking for the same type of protection you want. Do not be embarrassed or nervous; the judge understands that you are trying to protect yourself and your family.
After the judge signs your Order, you must have it personally served on the person. To get it served you take the Petition and Order to the Sheriffs office. They will serve the Order for the statutory fee. You can also hire a private process server to serve the Order for the same statutory fee plus mileage. You will probably be charged a fee for service (usually 45-55 dollars). If you cannot afford the fee, if you show proof of your financial situation, the court may waive or defer those fees. The Sheriff's office serves the Orders when the fee is waived, not private process servers. Orders are not in effect until served.
How do I enforce the Order?
Both types of Orders are valid for 1 year all over the State of Arizona. ALWAYS CARRY THE ORDER WITH YOU. You must have the Order to show if there is violation, and you need to call the police. Make a copy of the Order and keep it in a safe place, but carry the original with you at all times.
If your children have been threatened or injured and are included on the Order, bring a copy of the Order (plus a picture of the person) to each of your children's schools and speak with the principal and teacher.
Once the process server or sheriff serves the Order, the Superior Court files a copy of the Order with the Sheriffs office. If there is a violation of the Order, call the police and show them the Order. Police can arrest the person even if the officer did not see the crime committed. The violation is punishable by up to six months in jail and a $2500.00 fine. Make sure you get the police officer's name and badge number and the police report number. Keep the information, including the date and time you called, with the copy of the Order.
Tell your friends, neighbors, co-workers, and any building security that you have an Order protecting you. Describe the other person and give them a picture if possible so they can call the police if they see that person. An order of protection is not a shield. Please use common sense.
Filing for Divorce or Legal Separation
If you wish to divorce your spouse, you must file documents in court, petitioning for a dissolution. The other alternative to divorce is a legal separation, which also requires filing documents in court. Whether you petition for a dissolution or a legal separation, you are not legally separated from your spouse until the court issues a final decree.
Arizona is a community property state and gives both spouses the right to the marital community. Marital community consists of all assets and debts accumulated incurred during marriage. Both spouses are legally obligated for all debts incurred by either spouse until a Petition for Dissolution or Legal Separation is filed and served on the other spouse. Similarly, both spouses are entitled to that property acquired prior to the date of service of the Petition.
Any property acquired and debts incurred after a Petition for Dissolution or Legal Separation is filed and served is the separate property or obligation of that Petition results in the court issuing final decree.
What is the Difference Between a Divorce and a Legal Separation?
A divorce completely dissolves the marital community and marital status. A legal separation maintains the legal marital status but severs the marital community for purposes of acquiring assets and debts. Unlike a dissolution, a legal separation must be agreed to by both parties, i.e., you need the consent of your spouse to obtain a legal separation.
There are three reasons why you may wish to file for a legal separation rather than dissolution: 1) you have been married less than ten years and wish to receive social security benefits; 2) you need to remain married to receive health and medical benefits under your spouse's insurance plan; 3) your religion prohibits you from seeking divorce. You may petition the court at any time to convert a Petition for Legal Separation to a Petition for Dissolution.
What documents will I need to file for divorce or separation?
Gather as many financial, personal and medical documents as possible, including information about your children. Example documents include:
- Tax returns for the last three years,
- Social security numbers of all family members,
- Credit reports,
- Retirement and pension plan information,
- Bank account information,
- List of personal belongings,
- List of creditors, including addresses, phone numbers, description of debt, amounts owed and monthly payments,
- Medical insurance information,
- Birth certificates and other information related to your children, spouse's and your employer, address, phone number, monthly and gross income.
Relief - You can ask the court to grant you a variety of relief by Decree of Dissolution, including custody of the children, distribution of assets and debts, spousal maintenance, child support, and attorneys' fees. Include domestic violence allegations in the Petition for Dissolution or Petition for Legal Separation if custody is an issue.
What if I have been served with papers for divorce or separation? Do NOT ignore the papers that have been served on you and do NOT wait until the last minute to respond. The Summons will give you important information on deadlines that you must meet to protect your legal rights. Within twenty (20) days of receiving the papers, you must respond to the Petition for Dissolution or Legal Separation by filing a Response with the Clerk of the Court. This will give you the opportunity to challenge child support and custody issues, division of assets and liabilities and other important matters. If you fail to respond to a petition for divorce or legal separation, a default judgment will be entered against you and your spouse will receive everything asked for in the petition. The Family Lawyers Assistance Program can assist you with your response. Call them early enough to schedule an appointment. Their telephone number is 602-506-7948.
What does it cost to file for or respond to a Petition for Dissolution or Legal Separation?
The fee to file either petition is $170.00 - $200.00. The fee for responding to either petition is $125.00 - $150.00. These fees are subject to change and vary depending on County. The fees can be waived if you meet the financial requirements for the waiver and if you request a form for a waiver from the Superior Court at the time of filing either your petition or your answer. You fill out an application for a waiver and deferral of fees at the filing window. The clerk will then provide you with an order waiving or deferring fees if you qualify.
This may be done for the initial filing fee as well as the service of process fee, but an application and order must be completed for both. The Petition for Dissolution must be personally served upon your spouse. The Response need only be mailed, not personally served.
Order to Show Cause Re Temporary Orders
Once the divorce, legal separation, or custody papers have been filed, how do I get the court to order temporary child custody, child support, spousal maintenance, and the like?
You need to file an Order to Show Cause Re Temporary Orders (OSC). Relief that can be requested in temporary orders includes custody of minor children, child support, spousal maintenance, division of income, exclusive use of the marital residence, attorneys' fees, use of a vehicle or other property, payment of debts, and medical insurance coverage. You can get these forms from the Self Service Center at the Superior Court building (in Maricopa County).
Before the OSC hearing, who has custody of the children?
In a divorce or legal separation, until a temporary order regarding custody is in place, both parents have 100% right to retain custody of minor children. Therefore, it is important to immediately file for temporary custody. Often the parent receiving temporary custody is eventually awarded final custody because a judge will be inclined to maintain the status quo and will order custody according to a child's present living arrangement and environment.
When I file for an OSC, do I include details about the domestic violence?
Absolutely. This needs to be set forth in the petition. Arizona law provides hat the court shall consider evidence of domestic violence when determining which parent gets custody of minor children.
How long does it take to get temporary orders in place so that I can start letting child support or spousal maintenance?
Often a hearing on an OSC for temporary orders is not granted for several months. In a situation where a spouse has been cut off from all community income, does not have a job, or there is reason to believe that the other party will commit harm to the children and should have only supervised visitation, Then a Motion to Accelerate should be filed along with the OSC. Even with a Motion to Accelerate, the hearing may not take place for 4 to 6 weeks.
Once I receive temporary orders for child support, spousal maintenance. etc., does that ensure I will be paid?
No, a temporary order for support will not guarantee that you will actually receive that support. Also, it may be necessary to enforce a temporary order through a contempt proceeding which will take additional time. Filing an OSC for temporary orders is not a substitute for careful pre-filing preparation. You need a plan for how you will survive once you leave an abusive situation. Put money away or be prepared to borrow funds from family until child support or spousal maintenance payments begin.
Creditor/Debtor Issues - Managing debt while dealing with family relationships poses a variety of concerns.
Here are some commonly asked questions.
If necessary, how do I decide which bills to pay and which not to pay?
Keep in mind, as long as you are married, you and your spouse considered a "community" in the eyes of the law. Legally, you and husband share community property and community debt. What does this mean?
In most instances, assets you and your spouse acquire during the marriage are one-half yours, including bank accounts, personal property and real property. Likewise, you and your spouse share debt incurred during the marriage. Even if one of you makes a purchase or credit charge without the other's knowledge, you both have community responsibility to pay.
When in the separation or divorce process am I free of community responsibility?
Simply filing for separation or divorce does NOT sever the community. The community ends upon the date the Petition for Dissolution or Legal Separation is served upon the other spouse and as long as that Petition results in the entry of a final decree. In that case, debts incurred after the date of service of a Petition for Dissolution of Marriage or Legal Separation is the separate obligation of that spouse who incurred the debt.
If bill collectors call or write to me. what should I do?
Under federal law, the Fair Debt Collection Practices Act, a bill collector cannot harass you. Bill collectors must follow certain rules and regulations. They may not:
- Call you about a bill before 8:00 a.m. or after 9:00 p.m.,
- Contact your neighbors, friends or relatives about your debt,
- Threaten you, your relatives or friends with criminal prosecution or any form of harm or harassment,
- Threaten to publish or publish your name as a person who does not pay bills, except in credit reports,
- Make false claims that they are lawyers or law enforcement officials or other governmental officials,
- Contact your employer for any reason other than to verify employment or arrange a wage attachment,
- Threaten to take your property without a judgment,
- Claim they will increase the debt when you have not agreed, in writing, to pay attorneys' fees, service fees or other charges.
If any of these have happened to you, you may wish to write your creditor a letter, stating the following: "I have received numerous phone calls and letters from you concerning bills I haven't paid. As I have informed you, I cannot pay due to circumstances beyond my control. Pursuant to 15 U.S.C. Section 1692(c), I am giving you formal notice to cease all further communication except for the reasons specifically set forth under the law."
What should I do if I'm billed unfairly?
If you believe you do not owe the money, or the amount you owe is incorrect, write a letter immediately. Explain why you do not agree with the bill and ask for a record of what you owe and, if applicable, the date; and amounts of any payments you have already made. Be sure you've dated, signed and kept a copy of the letter.
If the bill collector has reported the debt to a credit reporting agency, write the credit reporting agency and tell them the bill is in dispute.
How can I know what's on my credit report?
To obtain a copy of the credit report in person or by mail: In Maricopa County you can pick up credit reports in person at Credit Data Southwest. There are two locations: 1825 East Southern in Tempe, and 4344 West Indian School in Phoenix; or you can request a copy of your credit report by mail from Trans Union Corporation, P. 0. Box 7000, North Olmsted, Oh 44070.
There is usually a charge for individual or joint credit reports. However, if you have been denied credit within thirty (30) days of your request provide a copy of the denial letter and there will be no charge for the report.
Can creditors repossess my belongings?
Under the law, there are two types of creditors: UNSECURED and SECURED. Most credit is unsecured. An UNSECURED creditor would have to sue you, win the lawsuit and obtain a judgment in order to collect the debt. Even then, the creditor is limited as to the property he or she can take under Arizona law.
Some credit is secured. A SECURED creditor has the option of taking back the property that secured the underlying debt. For example, if you have purchased an automobile on credit and stop making payments, the creditor can take the automobile back. The creditor cannot however breach the peace or otherwise threaten or harass you.
If a bill collector or repossession agent comes to your home, it is your choice whether to speak with him or her. You can refuse to talk to a collector, and you should tell the repossession agent you refuse permission for the repossession. You may advise them they are trespassing and you will call the police if they do not leave.
What happens if I file for bankruptcy?
Filing for bankruptcy is an important decision and should be examined in he context of whether you are filing for a legal separation or divorce. Keep in mind that the Order for legal separation or divorce determines when the community will be severed. If you file for bankruptcy before the order is entered, then the time period between the bankruptcy filing and the order finalizing the divorce is extremely important: your spouse can till incur debts during that period, you could be held responsible for those debts, and the bankruptcy will not discharge those debts. You will, in other words, be responsible for those community debts during that window period. You may wish to consider filing for bankruptcy AFTER the dissolution or legal separation is final.
You can only obtain Chapter 7 liquidation relief every six (6) years. You can file a Chapter 13 reorganization after a Chapter 7 only if you have regular income. It will be your responsibility to repay new debts you incur after filing for bankruptcy. In a bankruptcy, certain debts CANNOT be discharged, including:
- Child support and spousal maintenance payments;
- Certain income taxes;
- Debts for writing bad checks or committing fraud, under Chapter 7;
- Most student loans.
There may be other debts, which cannot be discharged. You may wish to consult with an attorney who is experienced in bankruptcy law to ask her or him whether bankruptcy is a viable option for you, or whether you need to file for bankruptcy at all. If you have no personal or real property at this me, then bankruptcy may not be necessary.
What if I cannot pay my rent?
If you do not pay your rent on time, your landlord must give you a written notice telling you that you have 5 days to pay the rent in full, plus any late fees agreed to in your written lease agreement. If you do not pay the amount within the 5 days, your landlord can file an action for Forcible Entry and Detainer. A copy of the summons and complaint will be served upon you, and will require you to appear in court in 3 to 5 days. If judge finds in favor of the landlord, you will have 5 calendar days to move out. If you have not moved out by the fifth day, your landlord can go back to court and ask for a Writ of Restitution. This will be served on you by a constable or sheriff's officer and they can forcibly remove you and change the locks on the door.
What if I can only pay some of my rent?
Your landlord does not have to accept a partial payment of your rent. However, if your landlord does accept any portion of your rent after you are in default, he or she cannot evict you for your failure to pay the total rent for that month unless you agreed otherwise in writing at the time you paid a portion of your rent.
Can my landlord charge me late fees if they were not agreed upon in my lease?
No. Your landlord can only charge you late fees if they were agreed upon in a written lease agreement.
Can my landlord turn off the water or other utilities, or lock me out of my home if I do not pay my rent?
Absolutely not. If your landlord wants to evict you, he or she must use the court system to do so. If your landlord shuts off your water or utilities, or locks you out of your home without first obtaining a court order, he or she is in violation of the law and you are entitled to damages from your landlord in the amount of two months rent.
How much can my landlord charge for a security deposit?
Your landlord cannot charge you an amount that will equal more than one and one-half months rent for a security deposit, including any amount that may be nonrefundable. All security deposits are fully refundable unless otherwise stated in writing in your lease.
What if I do not have a written lease?
If you do not have a written lease agreement, you are probably on a month-to-month lease. This means that either you or your landlord can terminate the lease upon 30 days written notice. Keep in mind, if you do not have a written lease your landlord may terminate your lease for any reason at all or for no reason. The 30-day notice must cover one full rental period. Thus, the notice must be given on or before the day your rent is due, and the lease will terminate at the end of the next full rental period. In some cases, you may be on a week-to-week basis. This is true if your rent is due once a week instead of once a month. If so, either you or your landlord can terminate your rental agreement upon 10 days written notice.
What obligations does my landlord have to me?
Your landlord must maintain a safe and livable environment. This includes complying with building codes, keeping common areas safe and clean, supplying heat, air conditioning, and hot and cold running water, and keeping appliances, sanitary equipment, and air conditioners in working order.
Can my landlord make me do the repairs and supply the water, heat and air conditioning in order to make my residence livable?
In most cases, the answer is no. Under Arizona law, your landlord has a duty to do these things and cannot delegate that responsibility to you. In very limited circumstances, such as if you rent a house rather than an apartment, and you agree in writing to assume these responsibilities, then your landlord can delegate these responsibilities to you. The obligation to make the residence safe and habitable always rests with the landlord. In all cases, however, your landlord can require you to pay utilities.
When is my landlord allowed to enter my apartment?
Your landlord may enter your apartment to make general repairs either with your permission or by giving you two days written notice. If there is an emergency, your landlord can enter your apartment without your permission. Your landlord cannot enter your apartment during odd hours or to harass you.
If my landlord refuses to fix things in my apartment, can I refuse pay my rent?
No. You must always pay your rent or you can be evicted from your apartment. If repairs are needed that affect the health and safety in your apartment, you must give your landlord written notice that you want him or her to fix them. Keep a copy of the written notices for your records. If, after 10 days, your landlord still refuses to make the repairs, you can hire a licensed contractor to make the repairs for you. You can pay contractor up to $300 or one-half of your rent, whichever is more, and deduct this amount from your next months rent.
If I call the building code inspector or the health department on my landlord, can my landlord evict me?
No, not even if you have a month-to-month lease. Arizona law states that if a tenant files a complaint with the housing code authorities, all eviction proceedings filed by the landlord within six months after the tenant's complaint are presumed to be retaliatory. If the court determines t your landlord's conduct is retaliatory, you are entitled to damages in the amount of two months rent. However, your landlord can evict you during those six months if you violate your lease or fail to pay your rent.
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