Child Custody Article


How to Represent Yourself in Maricopa County Part 1: Initial Filings

How to represent yourself in Maricopa Family Court Part One: Your Initial Filings


This is the first in a multi-part segment on “How to Represent Yourself in Maricopa County Family Court.” My goal is to give you as much information as possible for you to get the best possible outcome given your objectives.

Determining Your Objectives/Setting Expectations

The first step in family court is that you should determine your objectives. Let’s say you are going through a divorce. I understand your objective is to get divorced. What I am asking is for you to think about what is important to you within your divorce. There are five main issues that will need to be decided:

1. Custody (Legal Decision Making and Parenting Time)
2. Property and Debt Division
3. Child Support
4. Spousal Maintenance
5. Other issues (marital waste, attorneys fees, etc)

Picture your life after divorce with regards to each and every one of the issues above. Be as detailed as possible. Plan your post divorce budget considering where you will live and work. If you have a transition plan to live with family or friends for a brief period of time, think about what your life will look like when you are done with that transition. Deciding you ideal outcome and what is most important to you prior to filing any paperwork is an excellent place to start when you are representing yourself. Consider coming up with your ideal outcome on each issue and then determining what you could live with for each and every issue. Work with a counselor, mentor of friend to do some serious planning.
 
After you have determined your objectives, it is important to understand that the “process” of getting a divorce or going through any family law matter is not a fast one. Setting your expectations to a realistic place will help you get through the process with your mental health in tact and gives you a better chance of meeting your objectives. Plan for a contested case to take a year or more. This is likely to be one of the most stressful events you will endure. Get a support structure in place in advance to help you through the process.

The Initial Court Filings (Petition/Response/Temporary Orders)

The first step in the process of the family court case is the initial filings. This includes the Petition (and all accompanying documents), Affidavit of Service, Response (and all accompanying documents), and potentially filing for temporary orders. You or your spouse must file a Petition for Dissolution with the court and serve the other party. Service must be according to the rules of procedure. Most often this is either through a process server or your spouse accepting service by signing an acceptance of service.

Whoever files the documents first is the “Petitioner” the non-filing spouse is the “Respondent”. You will retain these titles throughout the duration of your case, even in modifications that may come years from now. In reality, it doesn’t really matter if you are the Petitioner or Respondent. There are strategic advantages to both.

What to Include In Your Filing

When deciding how specific you want to be in your petition, ask yourself if your spouse is likely to agree with each and every aspect of what you would like. In the event that the two of you agree on everything, consider filing a very specific petition outlining all of the details of how you would like custody, property division, child support, spousal maintenance and any miscellaneous issues addressed. If you agree on everything, filing a comprehensive petition (with separate parenting plan and child support worksheet) allows the two of you the option to proceed via default. This allows the other party to bypass filing a response (and paying the filing fee for the response).

In the event you and your spouse are not likely to agree on every aspect of the divorce, consider filing a more vague petition with requests such as “child support pursuant to the guidelines” or requesting “an equitable distribution of property and debt”. This allows you to take full advantage of the discovery process without committing yourself to a position that may change.

A Brief Introduction to Discovery

 In discovery, you will have access to information that you may not have previously had. For instance, if you spouse owns a business you may want to have it valuated before you commit to your spouse taking the business in exchange for you keeping the house. You will likely need to discover how much of your retirement accounts are community property (earned during marriage) and how much might be separate (premarital) property. Leaving your petition rather vague gives you the opportunity to gather more information as you refine your position. By becoming educated on the law, you can better assess your position of what is fair or what you can live with during your divorce. It can also help you to negotiate what is really important to you. For instance, let’s say you learn that you spouse spent $50,000 in secret gambling over the last three years. You may have a marital waste claim for $25,000. Instead, you may use that potential claim to settle other issues in the case that are very important to you.

The Response

Likewise, if you are the Respondent filing a response, consider also filing a “counter-petition” to address any issues that your spouse may have failed to mention. Also, you do not need to follow the traditional “admit or deny” format for each paragraph of the Petition. You can instead “plead affirmatively” and tell the court what you want. This allows your Response to be understood without having the Petition read side by side. All of the above guidance and suggestions apply to the response except for the paragraph regarding default. A respondent cannot ask for a default judgment on an initial divorce filing.

Motion For Temporary Orders

Finally, both Petitioner and Respondent may file a “Motion for Temporary Orders” along with the Petition or the Response. The request for temporary orders allows you to request that the court implement an order for temporary spousal maintenance, child support, use of the home, payment of the bills, attorneys fees, etc. In my experience about half of all cases have a temporary order in place. This is because divorce may take a year or more. In the mean time, arrangements have to be made. If the parties are unable to agree on the details of the arrangements, the court will need to put orders in place that allow for parenting time, payment of bills, and where someone will live. Other issues that may need to be addressed include where the kids will go to school, whether or not a child will be given a certain medication, travel arrangements between visits. Any issue that cannot be decided by the parties may be decided by the court as long as it falls within one of the five topics outlined above. Final Thoughts The next installment in the series will cover rule 49 mandatory disclosures and other discovery tools available to you.

Contributing Attorney Writer: Billie Tarascio litigates family law and domestic violence cases at Modern Law.


Comments:

QUESTIONS

  • my girlfriend was arrested for domestic violence. The cops left my son with me. The next day i had to go to work, so i left him with my parents. She took the cops over there and got him since she knew i was at work. Now she will not let me see him at all. She wont return my txts, to let me know how hes doing. I keep texting her that i want to know and see my child but she doesnt respond. What court papers do i need to file? I want to get him back right away. I want custody of him. I can provide a better home for him because shes at her parents. which alot of people live there.
  • me and my partner just seperated after twenty years. We have two kids together. I want to know who has legal custody of the kids.
  • Do I need an attorney to represent me in court for visitation time with my 10 year old son?
  • I gave my ex verbal notice of my relocation with my 4 year old, 2 mos prior to the relocation. He was receptive and understood my reasoning. I sent a letter cert. mail and it was returned to me because he failed to pick it up. So I then hired a process server, which was successful. Its now 4 days before my moving date and he has served me w/ a summons to establish parenting time and custody. My position at work has already been filled and I'm to be out of my apartment by the 5th. Am i obligated to stay in the state now? Or can i temporarily relocate?
  • We have temporary guardianship of our granddaughter. Both her parents are drug abusers. We would like to have a more permanent type of guardianship or custody. Our concerns are how can we do this and how would our granddaughter keep her AHCCS? We have insurance through my husbands work, but our granddaughter would lose her mental health support if her AHCCS were to stop. What can we do to keep her safe and keep her mental health support?
  • Post Decree Modificiation for Legal Decision Making and Parenting time: The court vactated a BIA attorney hearing due to a report not being available and moved to dismiss the entire Petiton and place the case on the inactive calander. Opposing party requesting trial with no new evidence? Can I object? Or request a evidentiary hearing as we just had trial Oct 2017 (10 months ago).
  • Will the court order extracurricular activity to be granted if a 14 year old presents the topic to the court?
  • I have a dughter who i want custody of, her grandmother says she has custody. Grandmother says that her daughter, amanda gave up her rights to our daughter. I was in prison while this was going on and they told judge they didnt know where i was. anyway, her environment is very bad for her. I have a fiance of 3 years and decided i dont care if my daughter hates me and doesnt want to live with me i cant continue to let her live like she is. it is not good for her well being. how do i get a hold of documents to find out who has custody and if mom gave up all rights? mom is in jail now.
  • If the father is out of work, behind on child support and does not have a vehicle, does this effect his rights to decisions and time with the child, of 4 years of age?
  • My daughter is refuseing to go to her Dads for Thanksgiving.Itryed to talk her into going but she refuses. She toled her father she does not want to go. He's threatening cort, saying she has no rights and her opinion don't matter. I toled him she is not a baby anymore she does have her own mind,and her opinion does matter she is a person too We do have quort papers but there from when she was a baby She is now a preteen. I don't feel right forcing her to go when she is flat refuseing i toled her she can stay home if she dont want to be there that bad.am i right? Or wrong?

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