Child Custody 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:

QUESTIONS

  • I am non custodial parent. I have come to realize that my ex wife is putting my children's mental and emotional well being at harm. is there anything i can do to get them back? She allows her abusive boyfriend around my kids, on various occasions they have witnessed serious domestic violence in one occasion her boyfriend was arrested and she did an order of protection for her and protected persons included my children, within a week she dismissed the order of protection, and allows him to be around my kids. They are still dating. i have police reports, is there possibility to get them back?
  • My boyfriend and i just split up and he took my child away and said I'm never goin to seee him again. If i went to court for this could i lose my baby? He works and i dont but im starting my online schooling, I live with my mom and she help me out. My child can't be without me I raised him, I havent left his side.  What would the chances of me having him be and of not being able to see him again? if you could get at me asap please.

  • When do the courts allow a child speak on their behalf? My boyfriend's daughter has expressed concerning verbal and mental abuse by her mother whom has primary custody. what can we do?
  • My In- Laws currently have custody of my nephew I want to know how I can transfer custody and how much will it cost?
  • I will be going through a divorce soon but I want to know a little before I jump into it. I really want to go for full custody and I feel for numerous reasons I would get it. My ex is in the military and I feel it would be good on my part of the battle because he will end up deploying again as well as the chance of him being stationed out of country or even out of state. Is there anything you could tell me?
  • My ex husband wont let my 13 year old son live with me and my son is threatening to run away from him and he was drawing pictures of himself dead. I am afraid of what he will do if he has to be there. He lives in kingman az and I live in texas. I need to know how I can get custody back from here. I tried to hire a lawyer and she was going to charge me 4000$. I cant afford that. Since he is 13, how would I get him to the court to tell the judge he does not want to be there he wants to be here with me. Please help me asap. Thanks
  • f I have a 10yr old son ,the father has never been in his life. I do not ask for child support.I want to get full custody rights. Whats the process that i need to take?
  • My ex-husband and I were divorced in Maricopa County in 2004; we have both since moved back to Michigan and would like to move the case here. We have lived here for more than a year. We are unable to locate the forms we would need to file with Maricopa County to request a release of jurisdiction. Any assistance with form numbers or where to locate them would be greatly appreciated!
  • I have 2 children that were born out of wedlock but paternity was established and I am their biological father. The mother of my children placed an order of protection on me but she recently dropped it. Prior to the order of protection we had a mutual custody agreement but it wasn't court ordered. Now that the order o protection is dropped she doesn't want to go back to our original agreement. She won't let me take my children without supervision or let them sleep over. With all this being said does she have the legal right to do this? What are my legal rights for visitation with my kids?
  • The father of my 18 month old son decided to break up with me recently and am very upset because of the breakup. I asked him to give me time before i could be able to allow "visitations" (nothing has been done by court yet). he doesnt want to respect my decision and is threatening me with calling the police if i won't let him see my son. Can he do that? can i file a protection order to help me "buy time"? can i be the first to contact the court so that i am able to stipulate the custody and parenting time terms?

STORIES

  • He told me that I could actually get all the money I needed by using my home as collateral. . .
  • If you get a divorce, make sure your date of birth is on the Decree if your name is changing!. . .
  • I just helped my mother, age 89, deal with her Medicare HMO. . .

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