Once the petitioner has had the divorce petition and other initial documents served on the respondent, the respondent has twenty days (thirty days in the case of service outside of Arizona) to file a written response to the petition for dissolution of marriage. See rules 32(A)(1) and 42(J), Arizona Rules of Family Law Procedure (“ARFLP”). If the respondent fails to respond within the requisite time, the petitioner may obtain a divorce decree by default.
Default decrees are governed by Rule 44, ARFLP. When the response time has passed (typically twenty days), the petitioner must first file an application for entry of default and mail a copy to the respondent and his attorney, if any. Rule 44(A)(1). The default becomes effective ten days after a proper application for default is filed with the court. Rule 55(A)(2) ARFLP. Weekends and court holidays do not count toward this ten-day grace period. Rule 4(A), ARFLP. If the respondent files his response within the ten-day grace period, the application for default is ineffective.
Once the default has become effective, a default divorce decree may be entered by the court. If the petitioner and respondent have no children together, the wife is not pregnant, and neither party requests spousal maintenance, the default decree may be entered upon motion and supported by an affidavit of either or both parties without the necessity of a court hearing. Rule 44(B)(1)(b). Otherwise, a default hearing before the court is required.
At the default hearing, the petitioner must present a draft decree of dissolution of marriage to the judge. The judge reviews the draft decree to insure that it only grants the relief requested in the petition for dissolution. If the draft decree contains orders/relief not requested in the petition, the judge will not sign it. If the judge feels it is necessary, the judge may schedule additional hearings to determine what relief it may properly grant in the decree.
When the respondent files a timely response to the petition for dissolution of marriage, the petitioner is precluded from obtaining a default decree of dissolution of marriage. Instead, the petitioner must pursue a resolution of the case via settlement or contested court trial. These subjects will be addressed in my posts over the next several weeks.
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