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.
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