Arizona Revised Statutes & the Arizona Rules of Family Law Procedure
Summary of Content
- PART I. GENERAL ADMINISTRATION
- PART II. PLEADINGS AND MOTIONS
- PART III. PARTIES
- PART IV. SERVICE
- PART V. DEFAULT DECREE AND CONSENT DECREE, JUDGMENT, OR ORDER; DISMISSAL
- PART VI. TEMPORARY ORDERS
- PART VII. DISCLOSURE AND DISCOVERY
- PART VIII. SETTLEMENT AND ALTERNATIVE DISPUTE RESOLUTION (“ADR”)
- PART IX. PRETRIAL AND TRIAL PROCEDURES
- PART X. JUDGMENTS AND DECREES
- PART XI. POST-DECREE / POST JUDGMENT PROCEEDINGS
- PART XII. CIVIL CONTEMPT AND ARREST WARRANTS
- PART XIII. OTHER FAMILY LAW SERVICES AND RESOURCES
What are the Arizona Revised Statutes and the Arizona Rules of Family Law Procedure?
In short, there are both laws and rules that govern Arizona divorce and family law proceedings. Arizona’s laws (i.e. statutes) come from the Arizona legislature. Arizona’s procedural rules come from the Supreme Court of Arizona.
Divorce and family “laws” (set forth primarily in Title 25 of the Arizona Revised Statutes) tell us things such as how the state defines the division of community property, how legal decision making is to be determined, how spousal maintenance and child support is to be determined, and other legal rights and obligations.
The procedural rules (set forth in the Arizona Rules of Family Law Procedure) on the other hand tell us what we are required to do in order to prepare for and present our divorce and family law cases when they are being litigated.
The Arizona Rules of Family Law Procedure set forth the procedural rules that govern all divorce and family law cases, including legal decision making (legal custody), parenting time, paternity, divorce and other family law jurisdiction issues, modification proceedings, enforcement proceedings, division of property and debt, establishment of paternity, alternate dispute resolution, and so forth.
Even if you already have a family law attorney handling your case, it is a good idea to understand the laws and procedural requirements that may apply. Consumers are becoming more and more educated and sophisticated, and more and more information is available to help them understand how the laws and rules apply to their case. For example, are you the type of person that wants to understand your health care options, whether to undergo surgery, what medications are most helpful and what are the risks, etc.? Do you do your own research outside of what your doctor advises? If so, this is equally applicable to your family law proceedings. Many decisions may have to be made during your proceedings. It is helpful for you to have at least some understanding of the rules and laws that apply to your case to help you understand why your attorney is doing certain things (and sometimes to help you identify what your attorney is not doing and should be doing). If you understand the laws and procedures that apply to your case, you may pay less attorney fees and be more able to understand why certain things have to be done and will be in a better position to help your attorney make the best legal and strategical decisions.
Arizona Rules of Family Law Procedure
The following is a summary of the Arizona Rules of Family Law Procedure. We have not covered all the rules herein but have summarized what we consider the most important rules or portions of rules that you should be aware of. The summaries below are merely highlights to provide you with a general understanding. To fully understand all aspects of the rules, you would of course need to read them verbatim.
PART I. GENERAL ADMINISTRATION
Rule 2 (Applicability of the Arizona Rules of Evidence). Unless a party files a timely notice to require compliance with the Arizona Rules of Evidence, some evidence may be admissible at trial that otherwise would not be admissible in the absence of such filing. Most notably, the failure to file such a notice would allow the Court to admit hearsay evidence (i.e. including testimony regarding what the children allegedly said or other people allegedly said even if they are not there to testify). Sometimes we file such notice and sometimes we do not depending upon whether we feel that your case is best handled with less formal evidentiary rules or not. This is something that you and your attorney should decide together.
Rules 4 (Computing and Extending Time). There are many deadlines that apply in family law proceedings. This rule provides how to calculate time deadlines.
Rule 5.1 (simultaneous dependency and legal decision-making parenting time proceedings). This rule applies where there are pending proceedings regarding the children in both the Superior Court and dependency proceedings through the Juvenile Court.
Rule 6 (Change of Judge as a Matter of Right). Each party may strike a judge as a matter of right in a proceeding so long as such notice is timely filed and so long as the judge has not entered rulings regarding any contested issues yet. The rule provides the time deadlines depending upon the circumstances.
Rule 6.1 (Change of Judge for Cause). This rule provides the parameters that a party may notice of change of judge where the judge has shown prejudice or other substantial grounds for such change. This requires stringent proof. Parties are strongly advised to consult with an attorney before attempting this.
Rule 7 (Protected Address). In cases of domestic violence, child abuse etc., a party may be able to protect their address from being disclosed to the other party or publicly.
Rule 8 (Telephonic Appearances and Testimony). This rule sets forth the procedures for appearing at hearings by telephone rather than in person, or having witnesses testify telephonically rather than in person. This is discretionary with the Court. As with most other Court requests, time limits apply.
Rule 9 (Duties of Parties or Counsel). Parties must keep the Court apprised of any changes in addresses, email addresses and telephone numbers. The rule also imposes certain rules upon attorneys who desire to withdraw from representing their clients or where clients change attorneys. The rule also provides for situations where attorneys can provide limited representation regarding only certain issues before the Court.
Rule 10 (Representation of Children). Sometimes a party to a legal decision making and/or parenting time case may have reasons for the appointment of an attorney for the children or to serve the children’s best interests. This rule applies to such appointments.
Rule 10.1 (Court-Appointed Advisor). The Court can appoint a qualified person to investigate the parents and children and make certain recommendations that may be relevant to the Court’s ultimate rulings regarding legal decision making and parenting time. This as well as other options for the appointment of experts is addressed in prior sections of our website.
Rule 11 (Attendance of Minors). Generally, the Court will not allow minors to testify at trial or other evidentiary hearings. Accordingly, if you want your minor children to have a “voice” you will want to seek another appointment to have the children interviewed so that the information they have to offer is considered by the Court. This can be through a full family evaluation, a child interview, a parenting conference, a Court appointed advisor, or other appointments as described in the custody / parenting sections of our website.
Rule 12 (Court Interviews of Children). Courts have the authority to interview the children regarding matters that may be relevant to legal decision making and parenting time disputes. Although authorized, most if not all the judges in Maricopa County refrain from doing so and instead rely upon other professional appointments to obtain information from the children.
PART II. PLEADINGS AND MOTIONS
Rule 23 (Pleadings; Petition and Response). This rule includes procedural requirements for various Court filings. It also includes a section on obtaining a warrant to take physical custody of a child being wrongfully withheld (citing to applicable statutory provisions).
Rule 26 (Signing Pleadings, Motions, and Other Documents; Representations to the Court; Sanctions). This includes language that a party (or attorney) certifies that allegations made are legally supportable and based upon reasonable investigation, and not being made for harassment or other improper purposes. The Court can order sanctions including awarding the other party attorney fees and costs for violations of such requirement.
Rule 35 (Family Law Motion Practice). This Rule sets forth procedures for filing motions during the pendency of the case.
Rule 35.1 (Motion for Reconsideration). After a Court has issued rulings, a party can request that the Court reconsider it’s rulings. There are generally other rules which are better vehicles to address mistakes in rulings made by the Court including Rules 83 through 85 addressed below.
PART III. PARTIES
Rules 36 and 37 address procedures regarding minors and incompetent persons, when a party dies, and transfers of interests in matters involved in the litigation.
PART IV. SERVICE
Rules 40 – 41 (Service of Process) addresses the alternatives to have the other party served inside and outside of the state and out of the country. Most service takes place by “personal service of process” meaning that an official process server serves the other party. A party may also voluntarily accept service of process. Sometimes a party may be served by certified mail, by publication and other methods however strict rules apply as set forth in the rules. Regarding service outside of the country, certain rules may apply in that country as well.
Rule 43 (Service after initial service). This rule regards the procedures necessary to effectively confirm service of various filings after initial service of process, including continued personal service, as well as mailing and emails. Email service must be consented to in writing.
PART V. DEFAULT DECREE AND CONSENT DECREE, JUDGMENT, OR ORDER; DISMISSAL
Rule 44 – 44.2 (Default). In some cases, a party may not respond to the initial petition filed with the Court (i.e. the petition for divorce, legal separation, paternity, etc.). These rules set forth the requirements to obtain a default judgment with or without a hearing. Whether a default hearing is required depends upon the issues presented in the petition and the relief requested. Note that the failure to respond within the 20 or 30 days set forth in the summons does not automatically entitle a party to a default decree or judgment. First an application for default must be filed where after a party is provided an additional 10-day grace period to respond. A party may not receive a default judgment or decree that requests more or different relief from the initial petition.
Rule 45 (Consent Decree, Judgment, or Order). This rule applies where parties come to an agreement regarding all the issues. In such event, the parties can submit a form of decree or judgment to the Court. The Rule sets forth the issues that must be addressed to ensure that all statutory requirements are met. For example, if children are involved a parenting plan that meets the statutory requirements must be included in the form of decree or judgment or a separate parenting plan must be incorporated.
PART VI. TEMPORARY ORDERS
Rule 47 (Motions for Temporary Orders). This rule addresses the procedural requirements to obtain temporary orders (i.e. non-permanent orders that apply pending the outcome of the case). The procedural rules may differ depending upon the issues involved. A motion for temporary orders may regard one or several issues including temporary legal decision making, parenting time, spousal maintenance, child support, division of liquid accounts, exclusive possession of the home, attorney fees, and payment of community debts. The Court generally requires form that the parties each file an Affidavit of Financial Information in the form provided with the rules (this can be obtained online, or if you hire our firm, we will work with you to fill this out). The rule includes the procedures to obtain a hearing on the motion for temporary orders. In some cases, the parties will stipulate to temporary orders so that an evidentiary hearing is not necessary. A response to a motion for temporary orders is not required to be filed, but we generally recommend that we draft a response for our clients. The parties must exchange a list of their witnesses and their evidentiary documents that they intend to present in advance of the hearing.
Rule 47.2 (Motions for Post-Decree Temporary Legal Decision-Making and Parenting Time Orders). This rule applies when the parties already have parenting time orders and seek to modify the same. If justified, the parties do not have to wait to obtain such modification pending the final trial or agreement but can seek interim temporary modification orders pending the final evidentiary hearing.
Rule 48 (Temporary Orders Without Notice). A party can seek temporary orders without initial notice to the other party under limited circumstances, i.e. where there would be irreparable injury, loss or damage if advance notice of such request was made. If granted, notice must then be provided to the other party and the Court must schedule an evidentiary hearing within 10 days to determine whether such temporary orders granted without notice should continue. This rule is generally used regarding emergency parenting issues, but sometimes is used regarding emergency financial issues as well.
PART VII. DISCLOSURE AND DISCOVERY
Rule 49 (Disclosure). Rule 49 of the Arizona Rules of Family Law Procedure is one of the most important rules that parties to any family law proceeding should be aware of. The rule is intended to make sure each party timely discloses witnesses and documents that the party intends to submit during an evidentiary hearing or trial to the other party (or attorneys). The disclosure requirements apply regardless of whether it hurts the parties’ positions. Strict timelines apply. If you do not list your witnesses and what they are going to testify to in a timely manner you may not be able to have them testify. The same thing goes with documents and other evidence – if such are not timely disclosed you may be precluded from submitting them as evidence. If you do not produce documents requested or that are described in the rule, you could be sanctioned by the Court or not allowed to submit evidence regarding certain issues. The disclosure rule includes certain information that must be disclosed by each party depending upon the issues – i.e. parenting, child support, property and debts, financial statements etc.
Examples of required documents and information set forth in Rule 49:
- In general: All facts, data, legal theories, witnesses, documents and other information relevant to the case.
- Resolution Statement (see forms described at end of this section).
- If parenting issues: protective orders, names of treatment providers, treatment regarding mental health issues, anger management issues, substance abuse issues or domestic violence within the last ten years; Criminal charges against a party or member of the household within last ten years; DCS investigations within the last ten years.
- If child support issues: Affidavit of Financial Information (see forms described at the end of this section); 3 years tax returns, W-2 forms, payroll and other income statements, cost of health care insurance for the children, childcare expenses, special needs expenses.
- If spousal maintenance, Attorney Fees and Costs at issue: Affidavit of Financial Information, tax returns and income statements.
- If property division is at issue: Property ownership documents, bank and other financial account statements going back at least six months prior to filing to the present; life insurance policies, electronically stored financial account statements back at least six months prior to filing to the present; copies of business tax returns and profit and loss statements and electronically stored information for last five years; wills and trusts, list of personal property.
- If debt division is at issue: Copies of all statements regarding credit cards and other debts going back to at least 11 months before the filing of the petition.
- Disclosure of witnesses: Each party must disclose all witnesses they may call at trial, including contact information and what they are anticipated to testify regarding no later than 60 days prior to trial.
- Disclosure of expert witnesses: Each party must disclose all expert witnesses they may call at trial, including contact information, qualifications as to each issue/opinion, and what they are anticipated to testify regarding no later than 60 days prior to trial. This includes any expert witness reports.
The deadlines set forth in Rule 49 may be changed by the Court in its orders or minute entries. Thus, parties and attorneys must make sure that these deadlines are calendared in advance. The disclosure statements are not filed with the Court but rather exchanged only with the other party or attorney.
Rule 50 (Complex Case Designation). In complex cases that may take more time to prepare for or that may require more trial time than the Court may otherwise allow, the parties can file a motion to designate the case as complex.
Rule 51 (General Provisions Governing Discovery). Rules 51 through 65 of the Arizona Rules of Family Law Procedure regard the procedures for obtaining information, documents and other evidence from the other party and/or other sources. These regard requests for discovery that go beyond Rule 49. In general, such discovery must be potentially relevant to the issues and proportional to the needs of the case, the amount in controversy, and the parties’ relative access to the information. Rule 51 provides procedures that a party may object to discovery requests that the party feels are irrelevant or beyond the bounds of discovery. The rule addresses discovery limitations for work product experts (i.e. experts that are not going to be called at trial or are not producing evidence, but merely assisting the party analyze certain issues). The rule also addresses procedures involving obtaining documents and information from experts that the other party lists and payment of expenses charged by the expert. The rule also provides procedures for withholding confidential and privileged documents and notice requirements regarding the same. The rule also provides that any discovery responses that are incorrect or that require supplementation must be corrected or supplemented.
Rule 52 (Subpoena). Rule 52 regards subpoenas to third parties. These can be to produce documents or other evidence, to allow inspections, and for witness’s mandatory attendance at a trial or other court hearing. In general, witnesses are not required to show up for a hearing or deposition (even if they informally agree to do so) absent being properly served with a subpoena. In family law cases, it may be necessary to obtain relevant documents and information from third parties. In some cases, a party will not produce documents from their own business and thus a subpoena to the business may be necessary. The rule sets forth the procedural requirements and necessary language for subpoenas. A subpoena can also be used to inspect a premise (such as a business) and/or the records at the business. This may also include copying electronic records from the place of business to the extent that such may be relevant to the issues. The rule also includes the procedures to object to subpoenas. The rule provides that a person who does not comply with a proper subpoena may be held in contempt of Court under certain circumstances.
Rule 53 (Protective Orders Regarding Discovery Requests). Rule 53 applies to a party or person that objects to certain discovery requests and the procedures necessary to make such objection. Sometimes the Court may enter confidentiality orders regarding discovery that includes requests for confidential or otherwise sensitive information.
Rule 57 (Depositions by Oral Examination). During a case a party or his or her attorney may want to take the deposition of the other party or potential witnesses. Usually the depositions take place at one of the attorney’s offices or at the Court reporter’s office. If a party is represented by counsel, his or her attorney will ask verbal questions which the other party must answer under oath (unless an exception applies such as attorney-client privilege). If a party is not represented by an attorney, he or she can ask the questions him/herself. The other side can object to the questions however such objections are very limited pursuant to the rules. The court reporter simultaneously records and types the questions and answers being presented and if requested will produce a transcript which can be used during an evidentiary hearing or trial if proper procedures are followed. The rule sets forth the procedures and requirements for depositions and the use of depositions. Depositions can be very useful to obtain information and positions that have not been disclosed by the other party. Depositions can also be used to identify positions of the other party so that it will be difficult for them to change their positions at trial (i.e. by showing inconsistent testimony). Depositions can sometimes be used to show that the other party is being untruthful. Depositions can also be used to ensure that all information has been disclosed and that there are no other documents or information available which has not been produced. Regarding witness depositions, many of these purposes apply as well.
Rule 59 (Using Depositions in Court Proceedings). This rule provides the procedural requirements for using a deposition at trial. First, a party or his / her attorney must designate in advance what portions of the deposition transcript the party intends to use. It is very rare that a Court will merely admit an entire deposition transcript. The rule also addresses objections to the admissibility of a deposition transcript or portions of a deposition transcript.
Rule 60 (Interrogatories to Parties). Interrogatories are specific written questions directed to the other party. Such may be requests for information regarding issues involving legal decision making, parenting time, spousal maintenance, property and debts and various other issues. The Court has approved certain questions in the form of Uniform Interrogatories which a party may choose from to direct to the other side. These are form questions that are relevant to many divorce and family law cases. Non-Uniform Interrogatories are written questions that do not fall within the scope of the Uniform Interrogatories that a party may ask the other party. The rule addresses the procedures and rules applicable to these questions and the other party’s answers or objections.
Rule 62 (Production of Documents and Things and Entry onto Land). It is standard in divorce and family law cases to submit a Request for Production of Documents to the other party unless the client already has all documents relevant to the issues. In family law cases, it is fairly standard to request between one and three years of documents even though the disclosure rules only go back six months to a year. In some instances, a party may request documents going back many years if relevant to issues such as separate property claims. A Request for Production can also include the production or inspection of electronic records from the other party. The rule also addresses procedures regarding the objection to certain requests – i.e. whether they are privileged, unduly cumbersome, irrelevant, etc. The rule also addresses requests for entry onto land – i.e. such as the marital residence or other properties for appraisal purposes, inventorying personal property located at the premises, taking photos or video and for other reasons. This rule only applies to requests between the parties. If requests are made to non-parties, such must be through the subpoena process identified in Rule 52.
Rule 63 (Physical, Mental or Behavioral Health, and Vocational Evaluations). This rule provides that a party may request the other party to submit to a physical, mental health and/or vocational evaluation by an expert. This generally arises when a party claims that he or she cannot work full time or at all, which is relevant to spousal maintenance and child support issues. This may also arise in parenting time and legal decision-making cases if a party claims that the other party has mental health or other conditions that are relevant to such issues.
Rule 64 (Requests for Admission). Although limited in nature, Requests for Admission can be helpful to pin the other party down to admitting to a specific contention. This can be helpful for motions for summary judgment and other aspects of a case. This can regard specific facts or the application of specific legal principles. This can also apply to confirming the accuracy of specific documents or reports. If a party does not respond within the time limitations, the Court is to presume that such statements are in fact true.
Rule 65 (Failure to Make Disclosures or to Cooperate in Discovery, Sanctions). This rule addresses the procedures to force a party to make certain disclosures or to comply fully with discovery requests described in the other rules if the party fails to so comply. The rule sets forth the procedural requirements including that the parties attempt to resolve the discovery dispute before filing motions to compel discovery or disclosure to the Court. The Court sets forth the penalties that the Court may impose if a party continues to violate the disclosure rules and/or continues to fail to comply with the Court orders regarding discovery. Such potential penalties include a party being precluded from presenting certain evidence, paying the other party’s attorney fees and costs as well as other potential penalties and sanctions. The rule also includes the process of obtaining Court permission to use untimely disclosed witnesses or evidence at a trial or hearing. The rule also addresses the parties’ requirement to preserve electronically stored information (i.e. on computers, social media accounts, emails, texts etc.), and penalties if a party destroys or otherwise interferes with the ability to obtain the same.
PART VIII. SETTLEMENT AND ALTERNATIVE DISPUTE RESOLUTION (“ADR”).
Rule 66 and 67 (Duties to Consider and Attempt Settlement by Alternative Dispute Resolution (“ADR”). These rules set forth the general expectation that parties attempt to settle the issues without a trial or other evidentiary hearing. The term alternate dispute resolution is a general term that encompasses in part a number of alternatives that the parties may utilize to assist in settling or otherwise resolving issues outside of a trial by the Court including the appointment of a judge pro-tem to conduct a settlement conference, private mediation, collaborative law process, family law arbitration and Conciliation Court services.
Rule 67.1 (Collaborative Law Proceedings) describes the procedures and rules involved with the Collaborative Law Process. Such process requires both parties’ agreement. This can be a helpful process to settle cases, but there are certain drawbacks including the possibility of a party not being able to keep their same attorney or experts if the case does not settle.
Rule 67.2 Uniform Family Law Arbitration Rules. This outlines the procedures and rules applied when parties agree to having an arbitrator (usually an experienced family law attorney) hear the case and make the decisions rather than a judge. This can be advantageous as the parties can retain a more experienced person to make the decisions as some judges have not developed substantial experience yet in the area of family law and/or may not be able to provide enough trial time for complicated issues.
Rule 67.3 (Private Mediation). This Rule applies the procedures and rules when parties agree or the Court orders private mediation. The mediator is a neutral party (usually a family law attorney) that assists the parties in resolving their issues. Unlike an arbitrator, a mediator does not make decisions but only assists and facilitates agreements between the parties with the hope of avoiding a trial. Such process is confidential, meaning that the parties cannot cite to things said or positions taken during mediation if a trial is necessary. Upon request to the Court, a mediator may be designated a judge pro-tem so that any mediation agreement can be deemed fully binding on the spot. The Rule addresses the parties providing mediation statements prior to the mediation so that the mediator can read such statements and be on notice of the parties’ initial positions and suggested settlement terms in advance. Such includes disclosures such as Affidavits of Financial Information and documents and information regarding assets and debts. The mediation memorandums are confidential and are generally not provided to the other party.
Rule 67.4 (Settlement Conferences). The Court may order the parties to attend a settlement conference with a judge pro-tem. This is very similar to a mediation but is generally shorter in duration. Unlike the mediator, the parties do not pay for the judge pro-tem’s time. The Court requires that the parties provide full disclosure of relevant information and documents prior to the settlement conference and must provide a settlement conference memorandum regarding the parties’ positions, lists of assets and debts and coverage of other issues in the case. Like private mediation, such proceedings are confidential, and the settlement conferences memos are not exchanged between the parties. If agreements are reached, the judge pro-tem has the authority to make such agreements binding between the parties. The judge pro-tem is usually an experienced family law attorney. The settlement conference is usually held at the judge pro-tem’s private office but can also be held at the Court.
Rule 68 (Conciliation Court). This rule regards a division of Family Court that addresses the possibility of settlement or reconciliation of the parties’ marriage in appropriate situations. This division also handles certain assessments and evaluations regarding legal decision and parenting time including parenting conferences and child interviews. The division also provides educational services to parties. The rule includes the procedures for requesting such services and the parameters of the same. Either party can file a petition for conciliation services to assist in preserving a marriage or settling legal decision making and parenting time issues. In certain circumstances the case is put on hold for up to sixty days (or longer if Court ordered) while the parties explore resolution or the preservation of the marriage. If there is an Order of Protection in place or domestic violence is alleged, this may affect a parties’ ability to obtain services to preserve the marriage or to address parenting issues with the other party present.
Rule 69 (Binding Agreements). This rule addresses agreements reached between the parties that are signed or agreed to before a judge, judge pro-tem, court appointed mediator or Court reporter. Such agreements are presumed valid and binding and a party must establish certain factors in order to overturn such agreements.
Rule 71 (Sanctions). This rule is more general and provides authority for the Court to impose sanctions (penalties) and award attorney fees and costs if a party does not comply with any of the Arizona Rules of Family Law Procedure. This rule also provides the Court with authority to exclude a party’s evidence at trial or dismiss their claims altogether due to such violations under certain circumstances.
Rule 72 (Family Law Master). If the parties stipulate in writing, the Court may appoint a Family Law Master with specific expertise in certain issues. This expert is paid for by the parties. Depending upon the parties’ stipulation, the family law master may make rulings or may make recommendations to the Court. The Family Law Master – if part of the stipulation – may essentially act as the judge in the case. The rule provides procedures for contesting the Family Law Master’s recommendations and or decisions. This is essentially what many attorneys call a “rent a judge”. The role of the Family Law Master may be limited to certain aspects (such as discovery and disclosure) or may address all issues that would otherwise be before a judge. Like a family law arbitrator, this can be advantageous to the parties who want to have a decision maker who has substantial experience in family law or can provide more time for an evidentiary hearing or trial than a judge may be able to provide. A Family Law Master may handle any aspects of a family law case including legal decision making and parenting time to complex financial issues such as business valuations, separate property claims, spousal maintenance etc. The Court cannot appoint a Family Law Master under this rule however unless both parties agree to such appointment.
Rule 72.1 (Retirement, Benefits, Stock Options, and Other Employment Related Compensation). This rule authorizes the court to appoint an expert attorney or other professional to help divide retirement, stock options and other employment related assets that are subject to complex federal and state laws. Such includes providing the appointed professional with the authority to require the disclosure of relevant documents regarding such assets.
Rule 73 (Family Law Conference Officer). The rule authorizes the Court to appoint an attorney or other professional to meet with the parties and other persons with knowledge to assist the parties in resolving issues regarding parenting time, legal decision making, child support, spousal maintenance, the identification and division of assets and debts and other possible issues. The Family Law Conference Officer is not supposed to make any decisions or make any recommendations to the Court outside of merely documenting the parties’ agreements.
Rule 74 (Parenting Coordinator). The parties can agree to a Parenting Coordinator to help them resolve disputes after a parenting plan has been issued by the Court by agreement or following trial. This rule is another opportunity for the parties to avoid Court proceedings and to have an expert handle parenting and legal decision issues that may come up. This appointment must be agreed to between the parties, as well as the duration of the appointment. The expert is usually appointed for one year, although the parties can stipulate to a longer appointment. The person agreed to is usually a psychologist or other mental health professional. This expert cannot make recommendations to change legal decision making or to substantially change parenting time, but rather helps the parties address the day to day issues that may come up that are not in the parenting orders. Examples include proper and professional communications between the parties, the role of new spouses and significant others, problems that the children are having, working out vacation schedules, parenting styles, school choice issues, and various other parenting issues that may arise. This is most helpful where the parties have joint legal decision making as a parenting coordinator would have a more limited role where a party has sole legal decision-making authority. Other than making decisions regarding legal decision making and substantial changes in parenting time, a Parenting Coordinator can make decisions regarding other parenting issues (subject to limited Court review) if the parties are unable to resolve such issues by agreement.
PART IX. PRETRIAL AND TRIAL PROCEDURES
Rule 76 (Resolution Management Conference). Fairly early in the proceedings the Court will schedule a Resolution Management. The purpose is to explore whether the parties can reach agreements on some or all the issues, and to set forth certain procedures for the parties to follow pending a trial on the issues if the issues cannot be resolved by agreement or stipulation. If agreements can be reached, the Court verify the agreements and make them binding. The Court may also refer the parties to mediation, a settlement conference or other alternate dispute procedure. The Court may impose additional or different discovery and disclosure deadlines, and in some cases may schedule a trial date during the Resolution Management Conference. The rules require the parties to submit a written Resolution Management Conference Statement (the rules include a form the parties can utilize for this). The main reason for this rule is to make sure the case does not get stalled and that the parties are aware of deadlines and provided opportunities to resolve the issues short of trial.
Rule 76.1 (Scheduling Conference; Scheduling Statement; Pretrial Statement). Sometimes the Court may schedule an additional Scheduling Conference (apart from the Resolution Management Conference) to address procedural issues including discovery and disclosure, setting trial dates and regarding other matters that may come up from time to time.
The rule also addresses Pretrial Statements. When the case is scheduled for trial, the parties are required to file a joint or separate pretrial statement depending upon the Court’s order. Such is a written document filed with the Court that sets forth each parties’ version of the relevant facts, applicable law, the parties’ positions on each disputed issue, the list of exhibits to be presented at trial, the witnesses that will be testifying at trial and other information and documents as stated by the rule. This is an extremely important document as a party may not be able to introduce evidence, witnesses or arguments if not addressed in the pretrial statement. The parties are also required to identify any objections that they may have to the other party’s witnesses and exhibits. Again, the parties may waive the right to make any objections if not included in the pretrial statement. The rules include a form that the parties may use to assist them in drafting their pretrial statement.
Rule 76.1. (Sanctions for Failure to Participate in a Court Proceeding). This rule provides the Court authority to sanction a party for failing to appear at a hearing or to submit Court ordered filings. Such may include fines, paying the other party’s attorney fees and costs, or excluding some or all the other party’s claim including dismissing their requests for relief.
Rule 77 (Trials). If the Court does not otherwise set a trial date at one of the hearings identified in the rules, a party can file a motion with the Court to set the case for trial. The rule provides the procedures and requirements for doing so.
PART X. JUDGMENTS AND DECREES
Rule 78 (Judgment, Attorney Fees, Costs and Expenses). Rule 78 cover items that Courts need to include in the judgments, what you will need to include in forms of judgment submitted to the Court for approval, rules regarding the finality of judgments (relevant to appeals), claims for attorney fees and costs and other issues. Such rule also addresses objections to forms of judgment submitted by the other party or attorney.
Rule 79 (Summary Judgment). This rule addresses the procedures available to request summary judgment. What this means is that a party submits a motion asking the Court to determine an issue as a matter of law and that a trial is not necessary regarding the issue. Motions for summary judgment are not very common in divorce and other family law cases because one can only obtain summary judgment if there are no genuine issues of material fact. However, under certain circumstances a motion for summary judgment may be helpful in limiting the issues before the Court. For example, we may file a motion for summary judgment asking to confirm whether a premarital agreement is enforceable or may file a motion for summary judgment regarding a “legal” claim from the other party that is contrary to Arizona law. If granted, this can reduce the number of issues involved in a trial.
Rule 80 (Declaratory Judgment). Like motions for summary judgment, this rule is not used often in divorce and family law cases, but maybe helpful in narrowing legal issues or factual issues. Sometimes having a short evidentiary hearing on an issue can help focus whether alternate claims and positions need to be made at a final trial. Accordingly, a motion for a declaratory judgment can be helpful in some limited situations.
Rule 82 (Findings and Conclusions by the Court; Judgment on Partial Findings). This rule regards requests for findings of fact and conclusions of law. If a party does not request findings of fact and conclusions of law, a Court does not have to provide very much of an explanation regarding its findings and judgments unless the statutes require such findings (such as legal decision-making cases). As such, if a party needs to appeal a decision, there may be a lower possibility of success in reversing a trial court’s rulings if a party does not request findings of fact and conclusions of law. If requested, a Court must explain what facts led to its decisions and the legal principles relied upon. In cases which a trial appears very likely, it may be a good idea to make such requests especially in cases that involve complex financial and legal issues.
Rule 83 (Altering or Amending a Judgment). This is one of the most important rules available to ask a Court to change its decision short of a formal appeal. Sometimes a motion under Rule 83 is first filed to see if an appeal is necessary. If the Court changes it’s ruling pursuant to a Rule 83 motion, an appeal may not be necessary. The Rule sets forth the procedures and time limitations for filing such a motion and responding to such a motion. The major grounds to file such a motion include: (1) the court did not properly consider or weigh certain evidence; (2) irregularity in the proceedings, (3) misconduct of the other party, (4) accident or surprise that could not reasonably have been prevented, (5) newly discovered material evidence that could not have been discovered with reasonable diligence, (6) an error by the Court regarding admission or rejection of evidence, (7) mistakes made by the court regarding facts, calculations etc. necessary to the ruling, and (8) the decisions were not supported by the evidence or are contrary to law. A court can open the proceedings and allow the introduction of new evidence if warranted under this rule. A timely filed motion under this rule extends the time for one to file a notice of appeal to the Court of Appeals.
Rule 84 (Motion for Clarification). This rule applies where a party does not necessarily seek to change a ruling but believes that further clarification is necessary if a ruling is subject to more than one reasonable interpretation.
Rule 85 (Relief from Judgment or Order). If a party misses the deadlines under Rule 83, they will want to review Rule 85 to see if a judgment can be changed. Although different factors apply between the rules, there is some overlap in practice. Rule 85(a) provides that a Court must correct any clerical mistakes or omissions. Rule 85(b) is the most cited to portion of the rule. This allows the Court to alter or set aside it’s judgment based upon certain factors such as mistake or excusable neglect by one of the parties, newly discovered evidence that was hidden by the other party or could not have been discovered with reasonable diligence, fraud by the other party, the judgment is void, the judgment has been satisfied, or other reasons justifying relief. Most of these motions must be filed no later than six months after the judgment is final. Some exceptions apply such as when a judgment is legally void, or where a party commits fraud upon the Court itself – then no time limitations apply. Unlike Rule 83, this rule does not extend the time to file an appeal to the Court of Appeals.
Rule 89 (Enforcing a Judgment for a Specific Act). This rule can be used in conjunction with a request for contempt against a party that is not following Court orders. Under this rule, a third party can be appointed to do what the violating party is supposed to do at the violating party’s expense (such as selling a home or other property, transferring account balances etc.). The rule includes other procedures available to the Court to enforce it’s orders.
PART XI. POST-DECREE / POST JUDGMENT PROCEEDINGS
Rule 91 (Modification or Enforcement of a Judgment). This rule sets forth the procedural requirements to file a petition to modify or enforce a judgment. Generally (under the statutes) a property or debt division order is never modifiable (i.e. a party would have to file a motion under Rule 83, Rule 85 or a timely filed appeal if a party felt that the Court did something wrong). Child support is always modifiable so long as there is a significant and continuing change of circumstances. The same thing applies to spousal maintenance awards as child support unless the parties previously agreed to language in the decree that the spousal maintenance award is non-modifiable. The rules have changed regarding mediation requirements. In the past, Courts would often reject motions to modify legal decision making and parenting time unless the parties first went through mediation. The most recent Rule 91 changes make it clear that such requirement cannot be imposed. The Court can order the parties to attend mediation before any final decision is rendered, but not as a pre-requisite to filing the petition to modify. The rule addresses what is necessary to include in a petition to modify and what must be submitted with such petition (i.e. such as the parties’ Affidavit of Financial Information).
Rule 91.1. (Post-Judgment Petition to Modify Spousal Maintenance or Child Support). This rule sets forth additional procedures (in addition to Rule 91) specific to requests to modify spousal maintenance or child support, including the requirement that each party file their Affidavit of Financial Information (Such are available in the Court forms attached to the rules). As a procedural requirement, a party filing such a petition to modify must establish the existence of substantial and continuing changes in circumstances that support the requested modification (such as changes in incomes, changes in parenting time, changes in costs, and/or other circumstances that establish that facts are different than what they were when the last order was entered, and thus provides a basis for the Court to proceed further with the case).
Rule 91.2 (Post-Judgment Petition to Enforce Spousal Maintenance or Child Support). This rule applies when one of the parties has not complied with the Court’s child support and/or spousal maintenance orders. These procedures are in addition to Rule 91. Such includes requirements for a calculation of all sums claimed to be due (rather than just a general statement that a party has not complied). This rule also covers requests for reimbursement of the child’s medical, dental, vision and other health care costs.
Rule 91.3 (Post-Judgment Petition to Modify Legal Decision Making or Parenting Time). This rule sets forth the procedural requirements to modify legal decision making and/or parenting time in addition to Rule 91. Again, such petitions must set forth detailed facts regarding why the Court should change its prior orders.
Rule 91.4 (Post-Judgment Petition to Relocate or Prevent Relocation). Most of the rules regarding relocation are set forth by Arizona Revised Statutes Section 25-408. This rule clarifies what statutes and rules must be adhered to in relocation cases.
Rule 91.5 (Post-Judgment Petition for Enforcement of Legal Decision-Making or Parenting Time; Warrant to Take Physical Custody). This rule applies when one of the parents is not complying with the Court’s legal decision making and/or parenting time orders. The rule requires that a party seeking an order of enforcement must provide detailed facts of the orders that the other party is violating and how such orders are being violated. The rule cites to other rules and statutes that apply to such proceedings. In some cases, the Court may issue a warrant so that an officer of the law can remove the child from the other parent’s custody.
PART XII. CIVIL CONTEMPT AND ARREST WARRANTS
We addressed civil contempt in the enforcement portion of our website. A request that a party be found in Contempt of Court is one of the remedies available when a party has failed to comply with a Court order, judgment or decree.
In short, the remedy of contempt is where the Court orders compliance with its orders and has the authority to force the party to do so. General contempt remedies are incarceration, court fines, having to pay the other party’s attorney fees and costs, having to participate in parent education or other remedial programs, and various other options that the Court has at its disposal. In family law cases, the remedy of “civil” contempt is generally available (as opposed to criminal contempt). As such, the penalty of incarceration is limited to forcing a party to comply with an order as opposed to punishing a party for failing to follow such order. Civil contempt can only be used to the extent necessary to effectuate compliance and to compensate the other party for his or her losses (such as attorney fees and costs). As noted in the enforcement section of this website, the Court does not always have the authority to hold a person in contempt of Court depending upon the language of the judgment or decree and based upon the type of violation.
Rule 92 (Civil Contempt and Sanctions for Non-Compliance with a Court Order). A petition to enforce the Court order must first be filed to commence the enforcement proceedings. This rule sets forth the information that must be included in such petition, obtaining an Order to Appear before the Court, service of process requirements, and procedural rules applicable to the evidentiary hearing. No person can be held in contempt without an opportunity to be heard at an evidentiary hearing. Certain defenses to being held in contempt include showing that the failure to comply was not willful, the inability to comply, or that the violation was remedied before the hearing. Except in cases of repeated offenders, the Court will generally allow a party the ability to remedy the failure to comply with the Court order prior to ordering the incarceration of such person.
Rule 94 (Civil and Child Support Arrest Warrants). In addition to statutory requirements addressed in Arizona Revised Statutes Sections 25-681 et seq, this rule sets forth procedural requirements that must be fulfilled prior to a Court issuing a child support or civil arrest warrant to apprehend a party held in contempt. Such is often issued when the violating party fails to appear for a Court hearing that he or she is ordered to appear.
PART XIII. OTHER FAMILY LAW SERVICES AND RESOURCES
Rule 95 (Other Family Law Services and Resources). This rule provides the Court with authority to order parties to engage in certain behavioral or mental health services, substance abuse programs, parent education programs and other services or programs that the Court feels will serve the best interests of the children. The Court must determine that such services are within the financial means of the applicable party or parties.
This is different than the Parent Education Program (also called the Parent Information Program) that all parents are required to attend by statute upon the commencement of initial legal decision making / parenting time proceedings.
The rule also addresses the Court’s authority to order supervised exchanges of parenting time, to refer a domestic violence victim for support services, to appoint persons such as real estate special commissioners with regard to divorce property issues, to requests the services of the Department of Child Safety, and various other appointments and referrals.
DIVORCE AND FAMILY LAW FORMS:
Rule 97 (Family Law Forms). Family law forms that comply with the rules are made available by the Supreme Court of Arizona at:
Arizona Family Law Procedure Forms
We have not identified every form available below but have listed a few of the most important forms that you may need in your case.
- Form 2 – Affidavit of Financial Information
- Form 5 – Proposed Paternity Resolution Statement
- Form 6 – Default Information for Spousal Maintenance
- Form 7 – Uniform Family Law Interrogatories
- Form 8 – Consent Decree of Dissolution of Marriage (Divorce) With Children
- Form 12 – Inventory of Property and Debts
- Form 13 – Order to Appear; Pre-Judgment/Decree
- Form 14 – Order to Appear Post Judgment/Decree
- Form 16 – Pretrial Statement