Do Both Spouses Have to Be Present for Divorce?
By Heather Baker-Mushkatel on July 17, 2020
Couples seeking a divorce in Arizona have a complex legal road to travel. By the time you begin the process, you may already be separated. One or both of you may have moved out of town or state. That leaves the question of whether both spouses must be present in court to get a divorce in Arizona.
Under Arizona law, any spouse may seek a divorce (known as a dissolution of marriage) as long as he or she has been a resident of the state for at least 90 days. It doesn’t matter where the marriage took place. In addition, your spouse does not need to be a resident of Arizona or present in the state for you to file a petition for divorce.
Divorce cases are heard in Superior Court. Although legal representation is not required at a divorce hearing, you’ll be expected to follow all the rules that an attorney would. For this reason, it’s a smart idea to talk with a Phoenix divorce lawyer at Mushkatel, Robbins & Becker PLLC to learn what happens at a divorce hearing in Arizona and how we can help.
With over 50 years of combined experience, our dedicated attorneys are committed to helping you achieve the best possible results in your divorce case. Call or contact us today for a free consultation.
What Happens at a Divorce Hearing?
If you and your spouse have minor children, Arizona law requires the court to hold a divorce hearing prior to granting a divorce decree.
At the hearing, the judge will ask everyone to be seated. Then he or she will usually inquire if any agreements have been reached between the parties. If they have, those agreements will be shared on record.
The court will also decide any unresolved issues arising from the divorce, such as child custody, child support, division of property, and alimony. In Arizona, courts are required to decide these issues before rendering a divorce decree.
Because questions of debt division, co-parenting, and spousal support can become very heated in court, working with an experienced divorce attorney who can advise you on these matters can ensure that you make the decisions that are fair and right for you.
How Should I Prepare for a Divorce Hearing?
Prepare for your divorce hearing by obtaining copies of the documents you have already filed with the court in connection with your divorce petition. This should include the summons, notice of right to convert health insurance, joint preliminary injunction, and creditor notice. Although the court will have these documents, you should keep copies for your own records. If you choose to hire a lawyer, he or she will ensure that these documents are in order for you.
Next, you should confirm that your spouse has been given proper notice of the hearing. A divorce in Arizona cannot be granted until at least 60 days after the spouse has been notified of your intent to file. If your spouse has not filed a response to your divorce complaint or has not hired an attorney, you can mail a copy of the notice of hearing to your spouse by certified mail with a return receipt requested. If you get the return receipt back, you can use that as proof to show your spouse was notified of the hearing.
If you have questions about whether you have fulfilled the court’s requirements to proceed with a divorce hearing, you should contact an attorney for help right away.
Do I Have to Go to Court to Get a Divorce?
Yes. Divorce decrees are issued by the court in Arizona. You will need to go to the courthouse in the county in which you live to file a petition. If the court orders a hearing in your case, you will need to appear before a judge before the dissolution can be finalized.
Are There Penalties If My Spouse Goes to the Hearing, But I Don’t?
If you received notice and failed to attend your divorce hearing, your spouse can file for a default judgment. A default judgment means that the court will grant your spouse exactly the relief they request, assuming that he or she presents some evidence to support the request.
If the court grants a default judgment against you, you will have an opportunity to motion to set aside the judgment, but you will need to prove excusable neglect in your failing to appear in court.
Can Divorce Paperwork Be Filed by Mail?
The divorce process starts by filing a petition for dissolution of marriage. The courts provide paperwork packets that you can complete to file the petition. However, these packets must be hand delivered to the court clerk and cannot be mailed.
What If My Spouse No Longer Lives in Arizona?
If your spouse has moved from Arizona, you still must notify him or her of the petition for divorce. Once the petition is filed, you must “serve process” on your spouse. This means that the court papers are handed to the spouse officially, usually by a sheriff, constable, or licensed process server.
Alternatively, if you know your spouse’s address, you may mail the divorce petition through registered mail with restricted delivery. By choosing the restricted delivery option, only your spouse may accept and sign for the mailing, so you will have proof that the petition was put into your spouse’s hands.
If you do not know your spouse’s exact address, or if your spouse is avoiding service processors or mailings, you can request the court allow you to serve notice by publication in the newspaper where your spouse lives once a week for four consecutive weeks. However, in order to use service by publication, you must show that you have made reasonable efforts to locate and serve your spouse by in-person delivery or registered mail. Service by publication is also not permitted in cases involving child support, division of property, or alimony.
Compassionate Legal Services for Difficult Family Decisions
Divorce is never easy. Fulfilling all of the legal requirements to get the process underway can be even more stressful. Let Mushkatel, Robbins & Becker PLLC take the load off. Contact our Arizona divorce lawyers for a free consultation today.
Heather Baker-Mushkatel is an Arizona native who focuses in the area of family at Mushkatel, Robbins & Becker, PLLC. Heather also has substantial experience in criminal defense law, including a background as a public defender in Maricopa County. Heather earned her undergraduate degree from the University of Wisconsin-Madison and obtained her Juris Doctorate from Brooklyn Law School. She is a highly active member of state and local bar associations who has served on several panels to educate young lawyers and law students.