Usually a divorce proceeding is a very confusing and emotional time, so it is a good idea to be clear about what will happen. Once it is evident that the marriage is over, you will be involved with the legal system. Since divorce involves so many important areas of life, including children, property, assets and your emotions compounded with the fact that the law must cover from the most amicable of proceedings to the most acrimonious, there are a multitude of procedures to protect everyone and do it in a fair manner.
If you and your spouse are thinking about getting a divorce or have already decided and would like to speak with a divorce attorney, please contact us or give us a call at (480) 467-4348. Divorce is a complicated enough situation as it is, working with an experienced family law team can make all of the difference. We want to make sure that both parties are set up for a successful future and that their children, if there are any, are thought of first and are prepared for the best situation possible.
The First Legal Step to Divorce
The first step is to file a petition that requests that the court legally ends the marriage and issues court orders necessary to deal with property, debts, and financial support if children, custody, parenting time and support need to be detailed. It is important to consider every facet that you would like to acquire and in what way, as the court follows these guidelines you have set and does not give you anything that has not been requested.
Preliminary Injunction
Once you have filed for divorce, the Clerk of the Court issues the preliminary injunction. This legal document prevents both the husband and wife from taking a multitude of actions while they are settling the divorce. The actions that are restricted try to cover all those important areas of life that need to be dealt with in some way.
It covers children, property, assets, conduct of both parties, insurance and the manner in which the court proceedings will take place. These ordinances of law attempt to set the rules under which a fair settlement can take place.
What are the Restrictions?
There are of course restrictions when it comes to the preliminary injunction, which is explained in full depth in ARS 25-315. The following are orders that will be directed at each party in the divorce:
Children
The children must remain in the province of Arizona. If they are going out of the state, then written permission of the other parent must be obtained.
Property of the Marriage
This involves any property owned by both parties known as joint property; property that is owned by both people, known as common property; and property that is called community property, such as earnings. Both parties may not hide, distribute to others, or remove in any way the property, nor may they take out a loan on the same property. In order to conduct business, you may need to transfer property or if the sale of property is needed for the necessities of life, such as food, shelter, clothing or legal fees, this can be arranged through a lawyer on an individual basis.
Insurance
The insurance must be kept as it existed for the family and that includes hospitalization, dental, medical, automobile and disability insurance.
Behavior
Both parties may not injure, molest, threaten, or physically assault each other.
Consequence for Infractions
Since the injunction is a court order, the least that will happen is that you will be deemed as in contempt of court. You could be arrested and charged with interfering with judicial procedure. Your spouse could have this issue made part of the divorce proceedings.
Making the Injunction Legal and Binding – Service of Papers
After the petition is filed in court, it needs to be served to the opposing party. Included in the package served to the opposing party is the court filing, petition for dissolution, annulment or legal separation, the Summons, and any other court paper related to the case. The serving of the papers can be done by law enforcement or a licensed process server, or another party that can gain a signature from the other party.
The respondent can just sign the papers without involving a third party. This is best if both of the parties agree that a divorce is necessary. However, if there is any disagreement or if domestic violence has taken place, this course of action is not recommended.
This action must be completed and documented at the court or the person filing the injunction can be charged with interfering with a judicial proceedings. It must be completed within 120 days of filing for divorce.
The local law agency can be made aware of this situation by filing a certified copy of the order at their office. If changes are made then there is a requirement to notify the police of these changes with a certified copy of the changes to the order.
The person receiving the information must sign the acceptance or waiver of service and this waiver must be filed with the court.
Problems with Notification
In some cases, the person filing for divorce does not know where the other party is living. In that case, serving of the papers happens in a different way. It is published in a newspaper for four consecutive weeks. But if the notification is completed in this manner, the person filing for divorce cannot have the court request support for them or the children during the proceedings.
Replying to the Petition
The respondent files a Response with the court either agreeing with the conditions of the divorce or by asking for different court orders. This course of action must take place within 20 days if the respondent is living in the state of Arizona or within 30 days if they are living elsewhere.
What Happens with No Response
If nothing is received, the proceeding moves forward and the court grants the initial requests as written and the divorce is declared as finalized. This is known as getting a divorce by default.
How Does Further Communication Happen?
In most cases, further contact is needed because there may be need to negotiate conditions of the divorce or other details in the case. From this point on, communication can take place officially by being mailed to the spouse or to the respective attorney, as long as that attorney files the papers with the court.
The key is that all communication must be filed with the court. There may even be some interim hearings or status conferences as negotiations try to work out the differences. This process can take some time, but the partners can avoid a trial by agreeing to all of the issues to reach a Consent Decree.
When is the Divorce Finalized?
If a trial is needed, it is heard before a judge who will either call for more information or make decisions based on the evidence presented to them. This process can take some time depending on whether the judge is satisfied with the information presented. Then, the Preliminary Injunction may start the process that may lead to a divorce. At any point in the process, the couple can agree to remain married or proceed with the steps to a divorce decree.
Call the Family Law Team at (480) 467-4348 to discuss your case today.