Occasionally, one party initiates a divorce (or some other type of family law case) and the other party simply refuses to participate. When this happens, it can complicate the process of moving your divorce along through the court system. In this writing, we will discuss what happens when one party does not participate in a divorce or family law case in Arizona, and how the case might proceed.
A family law case typically begins with the filing of a petition with a court that has the authority to grant the requests listed out in that petition. See Ariz. R. Fam. L. Pro. 23(a). It is important to list out every request you wish to make in the petition because, if the other party fails to appear and participate after being served, your case might go through a “default” process. In a default context and depending on the circumstances, the only requests that the court may grant are those requests specifically listed in the petition. Also, once a case a decided, a court will usually not go back and grant additional requests later on. Therefore, it becomes critical that your petition include everything you wish to have decided by the court.
After the petition is filed, the petition and any other required documents must then be “served” on the other party. See Ariz. R. Fam. L. Pro. 27 (requiring service of various types of petitions and describing some of the additional documents that must be served with petitions); Ariz. R. Fam. L. Pro. 23(b) (requiring that a petition be served with a summons and an order to appear). “Service” or “service of process” refers to the idea of providing copies of documents so that others in the case know about actions that might be taken by court. See Ariz. R. Fam. L. Pro. 39(a). Generally, a divorce case cannot proceed unless the responding party has been served with the petition and all other required documents. See Ariz. R. Fam. L. Pro. 27; Ariz. R. Fam. L. Pro. 23(b). In Arizona, the gold standard for service of process is “personal service,” which involves having a process server or sheriff personally hand the documents to the person being served or someone of suitable age and discretion residing in their dwelling or usual place of abode. See Ariz. R. Fam. L. Pro. 41(c).
In an ideal scenario, the petition and related documents are personally served and there is no issue with providing notice. However, that is not always possible. If the responding party avoids service of process, cannot be located, or if personal service is impracticable from some other reason, then the Arizona Rules of Family Law Procedure may allow service by an alternative method or, in some cases, publication in a newspaper. See Ariz. R. Fam. L. Pro. 41(l); Ariz. R. Fam. L. Pro. 41(m). Completing service by one these alternative methods is very technical and the all of the rules must be complied with to ensure that the court will allow your case to proceed. In the default context, it is not unusual for a court to closely examine alternative service and refuse to grant requests because of a defect in how service of process was accomplished.
Once the responding party has been served with the petition and related documents, the rules require that party to “respond by filing a response to the petition.” Ariz. R. Fam. L. Pro. 28. “In the event the opposing party in one of these proceedings does not file a response, the party who filed the action will have the right to file for a default and receive a default judgment . . . .” Id. A default judgment is a decision by the court, made in the absence of input from the responding party to the case. A default judgment is largely the same as any other judgment, except that some judges are quicker to disturb a default judgment because of concerns about service of process or other technical matters that might be raised later on.
The process for obtaining a default judgment is broken down into two parts. Compare Ariz. R. Fam. L. Pro. 44(a) with Ariz. R. Fam. L. Pro. 44.1(a); compare Ariz. R. Fam. L. Pro. 44(a) with Ariz. R. Fam. L. Pro. 44.2(a). Once a party has been served and the time for the filing of their response has passed, you may initiate default proceedings by filing an application for entry of default. See Ariz. R. Fam. L. Pro. 44(a). This application for entry of default must be mailed to the responding party, and it lets the other party know that if they fail to take action a default judgment might be entered. See id. The responding party then has an opportunity to resolve the default by filing a response or other appropriate document with the court. See id.
If, despite receiving service of process and a subsequent application for entry of default, the responding party still has not responded to the petition within the prescribed timeframes, you may then make a request that the court enter a default judgment. See Ariz. R. Fam. L. Pro. 44.1; Ariz. R. Fam. L. Pro. 44.2. The request may be made by motion or, in some instances, must be made in person in a hearing before the assigned judge or commissioner. See Ariz. R. Fam. L. Pro. 44.1; Ariz. R. Fam. L. Pro. 44.2. If the court requires a default hearing, it is important to note if the other party appears, the court is required to “allow that party to participate in the hearing to determine what relief is appropriate or to establish the truth of any statement.” See Ariz. R. Fam. L. Pro. 44.2(d). In a default judgment, the court may enter orders dividing property, establish paternity, as well as establishing or modifying child custody, child support, spousal support, and other appropriate relief permitted under Arizona law for the type of petition that was filed.
If you are considering initiating or are involved in a court action regarding a family law matter, and need the guidance of an experienced and compassionate law firm, do not hesitate to contact Huffman-Shayeb Law, PLLC to set up a consultation and discuss your options. The attorneys of Huffman-Shayeb Law, PLLC can help guide you through both contested and uncontested family law cases in Arizona court system.
Disclaimer: This publication is for educational and informational purposes only, and represents Huffman-Shayeb Law, PLLC’s understanding of the present state of Arizona law. This publication does not constitute legal advice or counsel, and should not be construed as a comment on the merits of any particular case. It should be noted that the laws and requirements of the State of Arizona may change at any time and that this information may not be complete or correct.
