How do I get a divorce by default?
There are several steps to get a divorce by default (but first you must wait until the time for the Respondent to file a Response has run out):
The Petitioner first must file an application form with the court and mail a copy of it to the Respondent. The application form may be called different things in different counties (usually either an "Application for Default" or "Notice of Default"). This form tells the court that the Summons and Petition were served on the Respondent and that the Respondent has not acted in time. When the form is filed, the clerk notes in the court file that the Respondent has defaulted. This is called "entering" the default. Sometimes the form to be filed combines both parts and is called an "Application for and Entry of Default."
Even though the Respondent has failed to file a Response, a copy of the Petitioner's application for a default must be served on the Respondent if the address of the Respondent is known. This may be done by mailing a copy to the Respondent (first class mail). If the Petitioner knows the Respondent is represented by an attorney, a copy must also be mailed to the attorney.
The Respondent then has another ten days to file a Response.
If the Respondent still does not respond to the court, the Petitioner must appear before the court to provide information the court needs before ending the marriage by default. The above information assumes that the Respondent lives in the State of Arizona and was not served by publication.
Why is the default application mailed to the Respondent?
Although the Respondent has failed to act in time and the default has been entered in the court record, the default does not become effective for 10 days after the application is filed. Within that time, the Respondent is given another opportunity to file a Response. If the Respondent acts within this ten-day period, the case will proceed as if there were no default.
Is a divorce automatically granted when the ten days run out?
No. If the Respondent continues to be in default after the ten-day period has expired, the court may end the marriage and make other necessary orders without the Respondent participating. First, the court must hear evidence from the Petitioner to be sure there is reason to dissolve the marriage and to be sure all issues of property, children, support and any other issues are dealt with.
How does the court hear evidence for a default divorce?
A court session called a "hearing" is scheduled before a judge or commissioner of the court at a particular time at the courthouse for the court to obtain the necessary information. The Petitioner must appear before the court to give information or answer questions. Usually the hearing is brief and informal. If a person does not have an attorney, the judge or commissioner asks questions about the Petitioner's residence in Arizona, the breakdown of the marriage, property and financial support issues. If children are involved, the court will also inquire about custody, parenting time and child support.
How soon can the default hearing be scheduled?
By state law (section 25-329, Arizona Revised Statutes), the court may not hold a default hearing for at least sixty days after the date that the Summons and Petition are served on the Respondent (or the date the Respondent accepts or waives service, if that is the way service was made). This is the earliest time a person may ask the court for a divorce by default.
How do I know when the default hearing will be held?
The way default hearings are scheduled is not the same in all counties. For example, in Maricopa County, the Petitioner must prepare a form called a "Request for a Default Hearing" and mail it to the court with a large self-addressed envelope. The court file is reviewed and if all papers are in order, the Petitioner will then be mailed a notice that a default hearing has been scheduled for a certain date and time. In Pima County, time is set aside each afternoon for hearing default cases and the Petitioner may choose the most convenient day. Check with the Clerk of Superior Court in your county to learn what to do.
Who prepares the Divorce Decree?
The Petitioner prepares the Decree for signature by the judge or commissioner. When preparing the Decree, it is important to repeat as closely as possible what was requested in the Petition. When a case ends by default, the court generally cannot issue orders that differ from what the Petition originally requested. (For example, if the Petition does not ask for financial support for a spouse, the Decree cannot order that the Respondent pay support.) The Decree should deal with all property, debt, support and child-related issues. It is likely that the judge or commissioner will not sign the Decree if different or additional things are requested. The Petition, then, must be as specific and complete as possible when it is filed.
Careful. We don't want to learn from this.