Default Divorce- How a Legal Paraprofessional Can Help

When going through a divorce in Arizona, the process can become more complicated if one party fails to respond or participate in the proceedings. This can lead to what is known as a Divorce by Default.

If your spouse fails to file a response to your divorce application and affidavit of default, you may be able to move forward with the divorce without their participation.

In the state of Arizona, default divorce decrees can be obtained through a legal process that involves requesting a default hearing. However, handling the legal complexities of default divorces can be overwhelming and confusing. This is where a family law legal paraprofessional, such as De Novo Law, can help.

A family law legal paraprofessional can provide valuable assistance throughout the default divorce proceedings, from helping you understand the process to ensuring that all required documents are properly filed. Additionally, they can also facilitate divorce mediation if both parties are open to resolving their issues outside of court. 

So, if you find yourself in a situation where your spouse fails to engage in the divorce process, know that there is professional help available to guide you through the Divorce by Default process. 

We will cover the following topics:

• What is a Divorce by Default 
• How Does the Divorce Process Work
• Consequences of a Default Divorce in Arizona
• Setting Aside a Default Judgment in Divorce
• How Mediation Works in a Default Divorce
• Frequently Asked Questions About Divorce by Default in Arizona 
• How an Arizona Family Law Paraprofessional Can Help

What is a Divorce by Default 

A divorce by default in Arizona occurs when one spouse (the respondent) fails to respond to the divorce petition filed by the other spouse (the petitioner) within a specified timeline.

If the respondent resides in Arizona, they must respond within 20 days; if outside Arizona, the timeframe extends to 30 days.

Failure to respond within these periods allows the petitioner to seek a default judgment from the court.

How Does the Divorce Process Work 

The process for a default divorce in Arizona follows a specific legal pathway, beginning with the filing of the divorce petition and potentially concluding with a default judgment if one party does not respond.

Here’s an overview of the steps involved:

1. Filing the Divorce Petition: The process begins when one spouse (the petitioner) files a petition for the dissolution of marriage with the appropriate Arizona court. This petition outlines the petitioner’s terms for the divorce, including aspects like property division, child custody, and spousal support.
2. Serving the Divorce Petition: The petitioner is required to serve the divorce petition to the other spouse (the respondent). This service must be carried out according to Arizona’s legal requirements, often through a process server or by certified mail.
3. Waiting for the Response: After being served, the respondent has a specific timeframe to respond. If residing in Arizona, the respondent has 20 days to file a response; if outside Arizona, the timeframe is 30 days. This response should address the claims and terms laid out in the petition.
4. Filing for Default: If the respondent fails to respond within the given timeframe, the petitioner can then file an application for default with the court. This application signifies that the respondent has not participated and the petitioner seeks a default judgment.
5. Additional Waiting Period: Upon filing for default, the court typically allows an additional 10 days for the respondent to respond. This is a final opportunity for the respondent to become involved in the divorce proceedings.
6. Default Divorce Hearing: If the respondent still does not respond, the court may schedule a default hearing. At this hearing, the petitioner may be required to provide evidence or testimony to support their requests in the divorce petition.
7. Issuing the Default Decree: Based on the information presented, the judge can issue a default decree of divorce, which legally dissolves the marriage and typically grants the requests made by the petitioner in the absence of any contest from the respondent.

Throughout this process, it’s important for both parties to be aware of the timelines and requirements set by the Arizona Revised Statutes to ensure their rights and interests are adequately represented and protected.

Consequences of a Default Divorce in Arizona

In Arizona, when one spouse fails to respond to a divorce petition, it leads to a default divorce, which has considerable consequences.

The petitioner often obtains their requested divorce terms, including property division, spousal support, and child custody. 

In this community property state, property division in a default divorce may favor the petitioner. Child custody and support decisions are made in the children’s best interests but often go uncontested in default cases. Spousal support is typically awarded as per the petitioner’s request if uncontested.

A default judgment is binding and final, leaving the non-responding spouse with limited options to contest.

This can lead to unfavorable financial and custody outcomes for them. While courts aim for fairness, they may adjust excessively unfair demands.

It’s beneficial to respond timely to divorce proceedings and consider seeking legal advice for a clearer understanding of the process.

Setting Aside a Default Judgment in Divorce

In certain circumstances, it is possible to set aside a default judgment in a divorce case in Arizona.

This action involves asking the court to nullify the default decree and reopen the case, allowing the previously non-responsive spouse to participate in the divorce proceedings.

Here are key aspects to understand about this process:

1. Grounds for Setting Aside a Default Judgment: The most common grounds include showing that the default was a result of mistake, inadvertence, surprise, or excusable neglect. For example, if the respondent did not receive the divorce papers due to an error in service or had a significant reason that prevented them from responding, these could be valid grounds.
2. Timeliness: The request to set aside a default judgment must be made promptly after the default judgment is entered. Arizona law generally requires that this motion be filed within a reasonable time, in no case exceeding six months after the decree is entered, except under extraordinary circumstances.
3. Filing a Motion: The process begins by filing a motion to set aside the judgment with the same court that issued the default judgment. This motion should clearly state the reasons why the default judgment should be set aside, supported by relevant legal arguments and, if possible, evidence.
4. Hearing on the Motion: After the motion is filed, the court typically schedules a hearing to allow both parties to present their arguments. The petitioner (the spouse who obtained the default judgment) will have the opportunity to contest the motion.
5. Court’s Decision: The decision to set aside a default judgment rests with the court and is based on the specifics of the case. The judge will consider the reasons for the non-response, the promptness of the motion, and any potential prejudice to the petitioner.
6. Legal Representation: Given the complexity and the strict timelines involved, seeking legal advice from a qualified divorce attorney or a family law paraprofessional is highly recommended. They can help in preparing and presenting a compelling case to the court.
   

How Mediation Works in a Default Divorce

In the context of a default divorce in Arizona, the role of mediation can be limited, but it still holds potential value.

Mediation typically involves both spouses working with a neutral third-party mediator to negotiate and resolve issues amicably.

However, in a default divorce, since one party is non-responsive, traditional mediation as a tool for mutual agreement is not feasible in its standard form.

Despite this, if the non-responding spouse becomes active in the process after a default has been filed but before it’s finalized, mediation can be introduced to resolve any pending issues.

This scenario allows for a more collaborative approach to finalizing the divorce terms, potentially leading to a more mutually satisfactory resolution than a court-ordered judgment.

It’s important to note that while mediation can offer a platform for negotiation and compromise, its effectiveness in a default divorce scenario largely depends on the participation and willingness of both parties.

In cases where the non-responding spouse remains uninvolved, the divorce process continues toward a default judgment without the benefits of mediation.

Frequently Asked Questions About Divorce by Default in Arizona 

1. FAQ: What happens if I move out of state after my spouse files for divorce but before a default judgment is issued?
   • Answer: Moving out of state does not automatically prevent a default judgment. If you were served with divorce papers and did not respond within the legal timeframe, the court in Arizona can still issue a default judgment. It’s crucial to file a response or consult with a legal professional regardless of your relocation.
2. FAQ: Can a default divorce be contested after the judgment if I was unaware of the original divorce filing?
   • Answer: Yes, under certain circumstances. If you were not properly served or genuinely unaware of the divorce proceedings, you might have grounds to contest the default judgment. This typically involves proving that you were not properly served and filing a motion to set aside the judgment.
3. FAQ: How does a default judgment affect my credit score?
   • Answer: A default judgment itself does not directly affect your credit score. However, if the judgment involves financial obligations like spousal support or debt division and you fail to meet these obligations, it could negatively impact your credit.
4. FAQ: What is the impact of a default divorce on joint business assets?
   • Answer: In a default divorce, the court may allocate business assets according to the petitioner’s request if it seems fair and within legal guidelines. 
5. FAQ: How does a default divorce impact immigration status if my residency is based on my marriage?
   • Answer: A default divorce can affect immigration status if your residency is conditional based on your marriage. 
6. FAQ: Is it possible to negotiate the terms after a default divorce judgment in Arizona?
   • Answer: Once a default judgment is entered, the terms are generally considered final. However, if both parties agree, they may be able to modify certain terms post-judgment, especially those related to child custody or support. Legal advice is recommended for such modifications.
7. FAQ: Can default divorce proceedings address retirement accounts and pensions?
   • Answer: Yes, retirement accounts and pensions can be divided in a default divorce. However, without a response from the non-filing spouse, the court may allocate these assets based on the petitioner’s requests and legal guidelines, potentially without consideration of the non-filing spouse’s interests.
8. FAQ: How does a default judgment impact child visitation rights?
   • Answer: In a default divorce, child visitation rights may be determined solely based on the filing spouse’s petition. If the non-responding spouse wishes to have visitation rights, it’s important to respond to the divorce petition to ensure these rights are considered.
9. FAQ: Is it possible to recover attorney’s fees in a default divorce case?
   • Answer: Yes, in some cases. Arizona courts may order one party to pay the other’s attorney fees, especially if there is a significant disparity in financial resources. However, this is not automatic and depends on the specifics of the case.
10. FAQ: What if I was serving in the military and could not respond to the divorce petition in time?
    • Answer: The Servicemembers Civil Relief Act (SCRA) provides protections for military personnel who cannot attend court proceedings, including divorce cases. If you were on active duty and unable to respond, you might be able to have the default judgment set aside under SCRA provisions.