publications - family law

Default Divorce Decrees

The Other Party Did Not Respond. Can I get a Default Decree of Dissolution of Marriage?

In most cases there are two separate procedures involved in obtaining a dissolution decree by default. First, one must get an Entry of Default, wait for 10 days notice to pass, and if no answer is received schedule a default hearing. See below for more details. Once an entry of default has been made the petitioner requests a hearing, and the default decree should be issued. Arizona Rules of Civil Procedure (A.R.C.P.) 55(a); and second, the entry of a Default Decree. Arizona Rules of Civil Procedure (A.R.C.P.) 55(b).

If a respondent does not respond to the divorce petition within the appropriate amount of time, the petitioner can file an application requesting the Clerk of Court to enter the default. A copy of the Application must be mailed to the respondent at his or her address, if the respondent is being represented by an attorney a copy must also be sent to their representative or, if their whereabouts are unknown, the Application for entry of default must say so. A.R.C.P. 55(a)(1). The default is effective ten days after it is filed. A.R.C.P. 55(a)(2). In calculating the 10 days the first day is excluded and the last day is counted. Intermediate Saturdays, Sundays and legal holidays shall not be included in the computation. If the last day falls on a Saturday, Sunday or legal holiday, the repondent has until the close of the next judicial business day to file a response. A.R.C.P. 6(a). If the respondent responds within those ten days, the default will not proceed. A.R.C.P. 55(a)(3). Special restrictions will apply if the party being defaulted is a member of the military. The Soliders' and Sailors' Civil Relief Act. 50 U.S.C.A. App. §520. In such a case, the party seeking the default should contact an attorney.

Once the default is effective, the petitioner must contact the court to schedule a default hearing. A.R.C.P. 55(b). However, the default hearing on a petition for dissolution of marriage or for a decree of separation may not be held until sixty days after the date of service or acceptance of service of the original petition. A.R.S. § 25-329. If a party has appeared in a case, he or she is entitled to a written notice of the application for default judgment at least three days prior to the hearing on such application. A.R.C.P. Rule 55(b)(2).

The petitioner must prepare and bring an original and copies of a Decree of Dissolution of Marriage. Issues to be covered in the Default Decree include child custody, child support, the division of marital property, and debt. It is best to contact the Clerk of the Court for the county in which you are filing to determine how many copies you will need to bring. At the default hearing, the judge will ask several questions to determine that a default decree is appropriate and will then sign the decrees during the hearing.

Local rules in some counties require that the respondent be mailed a copy of the default decree within 24 hours of its entry. Maricopa County Rule 6.2(d), Pima County Rule 8.2(d), and Pinal County Rule 3.6.

What if I just found out that my spouse has a default hearing scheduled, and I didn't know about it?

A.R.C.P. 55(c) authorizes a court for good cause to set aside a default before entry of the default decree. Good cause refers to a substantial reason amounting in law to a legal excuse for failing to perform a required act. The party seeking to set aside the default hearing must file a motion supported by an affidavit. Richas v. Superior Court, 133 Ariz. 512, 652 P.2d 1035 (1982). The supporting affidavit must specify and establish: (1) good cause for the failure to defend, (2) a substantial and meritorious--deserving defense, and (3) diligence--the attention and care required in seeking relief. Daou v. Harris, 139 Ariz. 353, 678 P.2d 934 (1984). Be aware, it is not enough to simply declare that the moving party has a meritorious defense. The affidavit must set forward the facts that constitute that defense.

What if I just found out that my spouse had a Default Decree of Dissolution of Marriage entered against me?

After entry of the decree the court may vacate its judgment pursuant to A.R.C.P. 60(c). Ordinarily, the grounds for vacating a judgment are mistake, inadvertence--lack of attention, surprise, or excusable neglect. Richas v. Superior Court, 133 Ariz. 512, 652 P.2d 1035 (1982).

The motion to vacate must be filed within a reasonable time which is usually not more than six months after entry of the default decree. A.R.C.P. 60(c).