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 son is 5 years old, his father is on the birth certificate. He has never lived with the father, he went to prison 2 weeks after he was born and has been in and out since then, What legal rights does he have?? And what would I need to do to gain soul custody? I have no contact with him.
  • A rocky marriage just worse.I have been living away from my children since May 2013. I had limited communication with my 2 children until the end of November 2013 when all communication with them stopped. All communication stopped with spouse the end of December. My numbers were blocked from calling... He said on 2/9/14 that he is filing for divorce. What are my options of getting the children or at least shared custody?
  • I have a son who his father and I aren't married but the father is on the birth certificate. His father just got out of prison and threatens me with leaving the state with my son. How do I get soul custody of my son?
  • I am currently expecting a baby. The father of my baby left me when I was 7 months, but has stated he wants to be in the baby's life. He is a habitual marijuana smoker, heavy drinker, and the people he surrounds himself with are not the kind of influences I want around my child. He moved in with his mom, who keeps a very dirty house and has been in and out of the hospital with MRSA for the last couple of years. I do not feel like he can provde a safe and stable environment for my daughter. He believes he will get joint custody. What actions do I need to take to ensure this does not happen?
  • My wife and I are divorcing and we currently have three adopted children and are currently fostering another- underkinship care. My wife does not want to adopt him and I do. I plan to adopt him. She has stated that she will complain he has molested and beat up the other kids in the home to have him removed. There is only one incident that has been recorded with CPS. She has not told me or the case worker of anything else. Can I adopt him even after we are divorced and how do I protect him against untruths?
  • Can the child decide where to live
  • i have raised my 14 yr old son by myself since he was 1 year old. his mom left and i have not seen her in about 13 years. my problem is that i never signed the birth certificate. up until now i havent had any problems enrolling him in school but last year they told me i have till this upcoming school year to get on his birth certificate. i have no idea what steps i need to take to get this taken care of. his name is exactly my name so i think that should help. please help
  • My husband and I have been separated for 7 months, I have our 3 year old son with me in Arizona with family and my husband stayed in our home in Colorado. He hasn't seen or attempted to see our son and speaks on the phone with him MAYBE once a month, he hasn't supported him financially this whole time even though he has a steady job. My contact information has remained the same this whole time as well. I have never denied him access to our son he chooses not to contact him would his actions be considered a form of abandonment
  • If I'm on the birth certificate an the child lives with me has my lastname an she's 6 years old can another man say his the father an want dna test done
  • i have a one year old son i am not married to the father as it turns out he is a mean drunk.i want to move back home to needles ,calif .. I am scared cause he tells me i cant leave with our son.CAN I LEAVE

STORIES

  • He told me that I could actually get all the money I needed by using my home as collateral. . .
  • Age discrimination in the workplace. . .
  • He told me that I could actually get all the money I needed by using my home as collateral. . .

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