Divorce is never easy. In general, one party will file a divorce complaint to be served to the other party. Then both parties come together to complete the process of legally dissolving the marriage. In certain circumstances, there is a failure of the receiving party to acknowledge the divorce proceedings. This can result in what the courts call a default divorce.
Divorce Options in Arizona
Mediation is one approach that can help improve outcomes, but it requires open communication and the ability to work together. 1 In mediation, the two parties come together with a third party who acts as a mediator. This process can take place in a law office or in a space that works as a neutral ground for both parties.
Through mediation, the splitting couple makes important decisions together concerning property division and child support. Successful mediation can expedite the divorce process and set a solid foundation for the fair division of assets and healthy co-parenting. In mediation, you may not need the assistance of separate attorneys for each party since you are making decisions collaboratively with your ex-partner.
Most divorce proceedings are accomplished in a court of law. In a court setting, it is normal for each party to retain their own attorney to clearly and effectively communicate their needs to a judge. This is ideal for divorces that may be more complicated due to assets, property, or children. In this scenario, both parties present their side of the situation to a judge who will make the final decisions regarding child support and the division of assets and property.
On some occasions, one party may be uncooperative. They may even ignore the paperwork and refuse to take part in the proceedings. When this happens, a default divorce could be granted. A default divorce can move along quickly, but this speed often comes at the expense of the served party’s wishes or desires.
The Divorce Process
In Arizona, any divorce begins with one party petitioning for divorce. The petition will detail the reasons (or grounds) for the divorce and include contact information for the other party involved. The person filing for the divorce has a responsibility to ensure that the other party is served the Petition for Dissolution of Marriage.
This is an official document the Clerk of Court issues. It clearly states that the receiving party must file a response to the petition that admits or denies any listed allegations and also provides the served party the means to add any counter allegations to the case. This response must be in writing and is then filed with the court. There is a specific timeframe within which the court must receive the petition.
It is crucial that this important paperwork isn’t ignored. Most receiving parties will choose to hire a quality attorney at this point. An attorney can help ensure that the response is well-developed, meets the needs of the receiving party, and is submitted on time to the right location. It is also important that the response is in written form.
A verbal acknowledgment of the petition doesn’t stand up in court. So even if the receiving party told the filing party what they wanted out of the proceedings, without it in writing, that communication can be ignored in a court of law. If there is a failure to respond, the filing party can continue with the divorce. This is known as a default divorce.
What Makes a Default Divorce Different?
The process of default divorce differs drastically from other divorce proceedings. A default divorce is a proceeding where one party receives a judgment of divorce based on the other party’s failure to file a response during the timeframe provided by law. The circumstances that can allow for this type of divorce vary.
These circumstances include:
- Non-filing spouse refuses to participate
- The filing spouse is unable to locate the other
- Both parties agree to enter a default judgment
Default Divorces tend to process faster since the demands and desired outcomes of the divorce are one-sided. This can lead to less than ideal settlements for the party who failed to respond to the initial divorce filing.
In Arizona, a spouse has 20-30 days to submit their written response concerning the divorce decree. 2 It depends on if the receiving party was properly served as well as whether that person resides in the state of Arizona. Twenty days are the norm for those living in Arizona and 30 days for those living out of state. If this time passes and there is still no formal, written response, the filing party will need to file an Application and Affidavit of Default within the court. This application also needs to be sent to the spouse, who will have 10 days to respond. If they continue to fail to respond within the deadline, you can request a default hearing.
Default Divorce Proceedings
The hearing process for default divorces can proceed rather quickly once it has been determined that no response will be received. Odds are the filing party will be the only one in attendance at the hearing. The judge will have questions that need to be answered and will vary depending on the jurisdiction. The judge will normally check to make sure that the filing party meets the residency requirements for a marriage dissolution in Arizona.
A judge will determine if the marriage is truly irreconcilable and can’t be salvaged through marriage counseling. The judge will also ask if there is a pregnancy or other extenuating circumstances involved. The judge will conclude by asking if the terms of the dissolution are fair when it comes to property division.
If a child is shared, a judge will also confirm that the orders surrounding custody and child support are in the child’s best interest. 3 Once the judge has asked all the required questions, they will sign a Default Divorce Decree. This decree needs to be served to the former spouse within three days.
In some circumstances, the receiving party may choose not to respond because they agree to everything in the filer’s petition. Under such circumstances, the process should continue forward rapidly. Your other option would be an uncontested divorce through a consent decree. This decree will cover all the important information of the marriage and its breakdown, much like the information that would be included in a standard petition for dissolution of marriage.
Risks of Default Divorce
Any type of divorce comes with unique challenges and risks. Even in the most amicable divorces, there is still stress and risk involved. 4 When it comes to default divorces, there are unique risks for both the petitioner and the receiving party. For the petitioner, there is a chance that the former spouse could fight the default divorce process. This would require adequate proof that the petitioner didn’t put in the effort to locate their spouse and serve the petition correctly.
Failing to properly serve the receiving spouse changes proceedings dramatically and could even cause a court to reopen and amend a completed default divorce. Even if the decision ultimately stands, this process is still a hassle. It can take up a lot of time, resulting in additional attorney fees.
The respondent also has a number of risks to consider. It is understandable that divorce can feel overwhelming, and it can make it difficult to respond within the timeframe you’re legally required to. 5 However, not responding can result in the biggest decisions being made without your input. The largest risk is your voice and concerns going unheard.
The judge will base his decisions on the allegations and decisions covered by the initial petition. This petition often covers several issues, such as property division and support payments. With no response on file, the judge may make a decision that doesn’t represent what you would have liked to accomplish through the divorce proceeding. As a respondent, you can petition the court if you feel as though you weren’t properly served or notified. If you find yourself in this situation, it is important to contact a divorce attorney who understands the complex rules and guidelines of divorce proceedings in Arizona.
How Long Does a Default Divorce Take in Arizona?
In most cases, divorce finalization in Arizona requires a mandatory 60-day waiting period after the divorce petition is filed. The time frame largely depends on the type of proceeding. With mediation, the process can move along rather quickly since the two parties have a willingness to work together.
In court proceedings, this largely depends on disagreements concerning major issues in the petition. Depending on the severity, this could drag divorce proceedings into months, sometimes years, of court sessions before a final decision is met. A default divorce, however, tends to move quickly.6
A default divorce can be finalized at the default hearing. This means that you’ll have the mandatory response time from the initial petition, which is 20-30 days, as well as the 10 days they are given to respond to the Application and Affidavit for Default. This means your default divorce could be finalized in as little as 30-40 days if everything goes smoothly.
Default Divorce in Arizona
Proceeding with a divorce is never easy. In Arizona, you have a few different options for divorce proceedings. Divorce proceedings all begin the same with a Petition for Dissolution of Marriage. What follows largely determines the path of the divorce. A default divorce is rarely the ideal situation but can happen due to the failure of the other party to respond.
In many instances, this means the filing party will receive exactly what they were hoping to get through the divorce proceedings. This can also mean that the other party gets no say in terms of the divorce, potentially including custody of minor children. This process can move extremely fast since there is no back and forth to work through.
Sources:
- Hahn, R. A. Kleist, D. M. (2000). Divorce Mediation: Research and Implications for Family and Couples Counseling. The Family Journal, 8(2), 165–171. https://doi.org/10.1177/1066480700082009a
- Divorce Proceedings. (2018). The Judicial Branch of Arizona. https://superiorcourt.maricopa.gov/family/divorce-proceedings/
- Vezzetti V. C. (2016). New approaches to divorce with children: A problem of public health. Health psychology open, 3(2), 2055102916678105. https://doi.org/10.1177/2055102916678105
- Dew, J., Britt, S., Huston, S. (2012). Examining the relationship between financial issues and divorce. Family Relations, 61(4), 615–628.
- Lehr, R., & MacMillan, P. (2001). The Psychological and Emotional Impact of Divorce: The Noncustodial Fathers’ Perspective. Families in Society, 82(4), 373–382. https://doi.org/10.1606/1044-3894.186
- Sbarra D. A. (2015). Divorce and health: current trends and future directions. Psychosomatic medicine, 77(3), 227–236. https://doi.org/10.1097/PSY.0000000000000168
Jonathan Roeder is one of the founding partners of The Valley Law Group. He is an Arizona native who has dedicated his life and career to the service of others. After graduating salutatorian of his high school class, Jonathan attended beautiful and prestigious Pepperdine University, where he majored in Political Science. During his tenure at Pepperdine University, his passion for helping others grew after securing a clinical position with a residential treatment center for juveniles with substance addictions. Post-graduation, Jonathan returned to Arizona and served as a residential manager for mentally and physically disabled homes.