Other Family Issues 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 a grandmother of four children and their mother continues to take them to GA every year and bring them back every year. This year she is taking them for good, but they dont want to be there. I am looking for a way to get them back to MS, but i dont have money for a lawyer. She had the law on her side so I am asking if there is a way to get my grandchildren back home with me?
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I was a stay-at-home mom for the majority of my marriage. During that time I accrued some student loans. In our separation agreement we each agreed to pay half of that, and any other, debt. A lawyer I spoke with stated that I am eligible for alimony (we were married 9 years and I stayed home for 6 of them), but my spouse takes great exception to this. He believes that since I did not contribute, monetarily, I should not be entitled to alimony. What should my expectations be?
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Does the Family Medical Leave Act cover taking time off for an in-law that needs help for medical care?
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My Mom is disabled, she should be doing physical therapy but she refuses to help herself and wont let us help her, she ignores her health completely and sits around all day drinking and taking her prescription pills and is in and out of the hospital, she's becoming a danger to herself and refuses to see it. what are the laws to putting her into a rehab or nursing home.
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When a child turns 19 is a parent legally responsible for that child. For example, a child moves out of home and is making poor choices, if something were to happen is the parent liable.
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Can I call the police on my parents if they choose not to give me my birth certificate, social security number, clothes, and school things such as books? i left my house to be at my boyfriends and they are not giving me any of my stuff what do I do? how do I get it back?
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My wife and her almost 21-year-old sociopath son have made my life intolerable. I want to leave. Other than my mortgage and appliances that I am contractually responsible for, do I have to maintain a house that I am not living in?
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I currently live out of state with my children. My ex's lawyer and him have manipulated the truth and twisted things around to make things go in his favor knowing I would not be able to afford the legal counsel to continue the fight. Can I somehow stop him from using that lawyer in the future? How can I find a lawyer now that my family and I are tapped out and we are still paying legal fees? We still have several issues and I would like a mediator/lawyer to correct things however, I do not know where to start now that we are in another state and I can't afford legal counsel. What do I do?
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My husband is going to prison, we have a three year old and one more on the way. He is our sole income provider, will I be able to get any kind of income support while he is gone??
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My ex husband recently passed away and his only children were named sole beneficiaries in the divorce decree(irrevocable).The decree states that he was to maintain a policy through his employer but his widow insists he only had one policy that she purchased and maintained through AFLACK. How can my children find out if they are entitled to any monies from this or any other policy that could be hidden. His widow insists that she has nothing and that he had no will
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