THE AURIT CENTER

Does It Matter Who Files First for Divorce in Arizona?

Filing for divorce in Arizona can be painful, even when both spouses understand that it is time for the marriage to end. Arizona is a no-fault divorce state. This means that when one spouse decides to move forward with divorce, the process begins and will end in divorce. However, rather than one person filing unilaterally in litigation, which causes conflict, spouses can decide to move forward together in divorce mediation.

Divorce mediation is a process in which an impartial mediator helps spouses reach agreements on all the issues of their divorce, so that spouses never enter a courtroom.

Even if both spouses decide to have a healthier divorce process in mediation, one spouse will be the “Petitioner” and one spouse will be the “Respondent.” Here are some considerations to help you decide whether you want to be the one to initiate a divorce or to receive divorce papers.

Petitioner vs. Respondent

In Arizona, there are no legal consequences or advantages for who is listed as the “Petitioner” and who is listed as “Respondent.”

If you file for the divorce, you will be known as the Petitioner. This person will file a petition for divorce, which is a paper asking the court to legally end a marriage. Your spouse will be the Respondent, because he or she has the opportunity to file a response to the Petition.

In the litigation-court process, the Petition is likely to list specific requests or demands for the Judge to issue orders regarding address property, debts, and financial support. When children are involved, the petition also requests specifics regarding legal decision making, parenting time, and child support.

In the divorce mediation process in Arizona, it is important to find a mediator who will also file your Petition. In mediation, rather than specific demands, your Petition will simply request that all assets and debt division and support issues be decided fairly, and parenting issues be decided in the best interests of the children. The Petition will state that spouses in private mediation will agree all specifics.

The mediation approach greatly reduces the conflict by beginning the divorce process together and without unilateral demands, contrasted with the litigation approach where a Petition may contain extreme demands that are formally served on the other spouse.

In litigation the Petition is commonly “served” on the Respondent with formal service of process, which can be stressful, emotional and cause additional conflict.

This is compared to mediation, in which no one is “formally served.” Rather, there is Acceptance of Service, which usually occurs during a mediation session with both spouses present.

Cost Differences

When considering divorce litigation, there is a cost difference for the Petitioner and the Respondent. In Maricopa County, Arizona, the Petitioner’s filing fee is $338. The Respondent’s filing fee is $269.

In this situation, many spouses decide to divide both fees equally rather than separate fees for the Petitioner and Respondent. Spouses can divide fees however they believe most fair under their own circumstances. Full service divorce mediation firms can prepare and file all documents.

A Public Matter

One of the many advantages of divorce mediation is privacy. In Arizona, all communications and documents exchanged in mediation are confidential. Only the Petition and Final Divorce Decree are part of public record. This is contrasted with litigation, where anything that happens in court is a matter of public record.

Family matters should be kept as private as possible due to the sensitive nature of divorce issues. Sometimes, only one spouse wants the divorce, or one spouse in the marriage is more emotionally ready for the divorce and is more comfortable being the initiator. In some cases, strong religious beliefs may make a spouse uncomfortable with being the Petitioner.

Mediation allows communication about this situation with your spouse. Perhaps together, you can decide who is most comfortable with being seen publicly as the initiator of the divorce. Even if one spouse is not ready for the divorce, knowing what is coming can make accepting divorce papers easier. These discussions most commonly happen during mediation, as people feel safe and secure to have this sensitive conversation. A qualified mediator can manage healthier communication.

Better Prepared

In the case of divorce mediation, the majority of spouses begin the process before ever filing for divorce. The decision of who will be the Petitioner does not need to be made before beginning mediation. In fact, you may be better prepared – at least emotionally – to begin mediation before a Petition filing has been made.

In litigation, before filing, the Petitioner may get assets organized and “prepare for attack” using the element of surprise on his or her spouse formally “serving” the Petition unexpectedly. We see this approach causing high conflict once the opposing spouse learns of the Petitioner’s actions. It is a tactic that in most cases is needlessly employed and can cause such erosion of trust that future mediation

Of course, surprise does not need to be an element in a divorce.

Having time to prepare for a divorce mentally and emotionally is important for both spouses. The mediation “gold standard” approach would entail the mediator explaining the contents of the Petition to both spouses together. The Petitioner signs the Petition when both spouses are present. This drastically lowers conflict because of the total transparency and joint ownership over the action.

Likewise, the “service” element also happens when both spouses are present in an easy and no-conflict manner.

Peaceful beginnings and endings

What a Petition says, when a Petition is filed, and how a Petition is served will set the tone for the rest of your divorce. The impact of this first divorce move should not be underestimated.

A Petition that takes extreme positions that is formally served by total surprise is often perceived as the first shots in a divorce war. Spouses should be mindful about how they begin their divorce process – especially when they have minor children.

The decision of when and how to receive divorce papers should be decided together when possible. An experienced divorce mediator can ensure that the Petition and Service are low-conflict and make the process easier to bear. By approaching these parts of the divorce in a way that removes fear and potential misunderstandings, divorce has an opportunity to remain amicable throughout the divorce mediation process.

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