Divorce & Annulment Article


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.


Comments:

QUESTIONS

  • my husband is in prision for domestic violence agg/assault on me. in his divorce papers he is wanting his 6 yoa son to have maditory visit every other weekend . I do not feel this is reasonable and should not be his choice. Is there a law pertaing to this.
  • What to do with an exwife that has not followed the judge orders on the separation of goods after the divorece was done. She is still taking money from my account,she has taken things from my home, how can I get her out of my life and make her return all the money and goods she has taken afte the divorce?
  • I cannot seem to find the forms for a covenant marriage divorce.
  • I am currently married but we have been living very separate lives since 2011. My spouse has just "married" someone else. I have checked with the courts and there is no marriage certificate filed, however I was informed if they are presenting as a married couple, sent out wedding invitations, etc.. that this still falls under A.R.S. 13-3606(A) Anti-Bigamy Act. I will not be the one to actively pursue divorce as I took sacred vows and getting divorced was not one of them though I will not be difficult if a divorce is presented to me. In the interim what he is doing is wrong so what do I do?
  • Where can I find a divorce packet for a covenant marriage?
  • My wife signed a online prenatal that was notarized that basically stated her debt is hers and mine is mine and her finances are hers and mine are mine. We tried to make it work for 3 1/2 years but it’s not working. I brought a house while we were married and put $75,000 down, all my money. We are both on mortgages though. She agreed if we divorced the $75,000 I put down. I would get back and would split any extra money from the sale of the house. Now she has changed her mind and wants to keep the house but there is no way she can buy me out. What are the chases I get my $75,000 back after
  • Filing for divorce how do I answer this question when I owned my house before we got married and we have nothing but debt shared? How do you request that the court divide the community, joint and common property between you and your spouse?
  • My ex wife moved to another state with our children, she does not work, and I ssupport their household financially, however it is all considered child support as it is writen in the decree. I ensured the decree stated I could claim the children on my taxes so long as I am up-to-date with my payments. Due to the condition, there is a form she is required to sign. I am up-to-date but she refuses to sign. What are my options to enforce the decree?
  • I'm in the process of filing for divorce. What is the best way to serve papers to my husband, who is currently in AZ State Prison? I have not had contact w/him for over 2 years, & do not wish to take them to him personally.
  • I just found out that my husband went to Vegas and married the woman he was seeing. What are my rights in this situation? Who is the legal wife?

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OTHER LEGAL RESOURCES

  • State Bar of Arizona
    www.azbar.org
  • Maricopa County Bar
    www.maricopabar.org
    Referral number 602-257-4434
  • Pima County Bar
    www.pimacountybar.org
    Referral number 520-623-4625
  • National Domestic Violence Hotline
    800-799-7233
  • Bankruptcy Court Self Help Center
    866-553-0893
  • Certified Legal Document Preparer Program
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