Divorce: Arizona Divorce Proceedings

I have a friend who moved his family (consisting of his wife and two elementary school age children) to Arizona in January of last year. He did so over his wife’s objections to leaving her extended family. About two months after moving to Arizona his wife grew too homesick to stay any longer. One day while my friend was at work, his wife packed her bags, loaded up her car and moved herself and their children back to Florida. Within a week after his wife left him, my friend decided to file for divorce.

Although I am not licensed to practice in Arizona, my friend contacted me about how to go about filing for divorce. His first question concerned whether he could legally file for divorce in Arizona when his wife and children now lived in Florida. His second question dealt with grounds for the divorce. Specifically, whether his wife leaving him for a little over a week and telling him that she would not return constituted grounds for divorce. His third question was whether he was required to obtain an attorney to represent him in his Arizona divorce proceeding.

Arizona Divorce: Residential Time Limits
The answer to his first question could be found with a simple appeal to the Arizona Divorce Statute. In Arizona, either spouse must have lived in Arizona for at least ninety (90) days prior to filing for divorce. This meant my friend would have to either file in Florida or wait an additional three (3) weeks before filing.

Arizona Divorce: Grounds for Divorce
Unlike some states, Arizona does not require that one of the spouses prove blame or responsibility in order to end the marriage unless the marriage is a “covenant marriage.” Instead, the court is simply required to answer in the affirmative the question of whether the marriage is "irretrievably broken." “Irretrievably broken” means the parties have differences or disputes that cannot be settled which are so serious that they have caused the marriage to totally and completely break down.

As my friend did not have a “covenant marriage” this post does not address that type of marriage. Suffice it to say that Arizona divorce law prohibits a court from granting a divorce after such a marriage unless one of the parties can prove adultery, abandonment, physical abuse or regular substance abuse or both spouses agree that the marriage should end. A “covenant marriage” is a marriage where both parties agree to limit grounds for divorce prior to their getting married.

Arizona Divorce: Self Representation
Arizona did not require that my friend obtain an attorney to file his divorce papers. However, I advised him that in addition to being without the benefit of an experienced attorney to guide him through the process, he would be required to abide by the same statutes, rules and procedures as an attorney would. This includes the proper and timely filing of legal documents, observing proper courtroom decorum and having at least a working knowledge of the divorce process. In the end, he chose to retain an Arizona divorce lawyer.

Another legal fact of interest is that in Arizona the court cannot grant a divorce until at least sixty (60) days after the other spouse is first served with the original court papers.

Enhanced Life Estate Deed Revisited

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Mediation: Small Claims in Florida

This topic may seem a little dry to some of you so if you want to bypass the legal information and go straight to the somewhat humorous anecdotes, skip down to the paragraph titled "Some Words of Caution."

And now for the post.

I've had several people e-mail me with questions about Florida's lawsuit procedures in civil "small claims" court cases. In response, this post is intended to shed a little light on one particular area of Florida Small Claims Court: Mediation. If you are suing or have been sued in a Florida Court I hope this post is helpful.

Three Separate Divisions
As a general rule, Florida's Civil lawsuits are handled by one of three separate divisions, most often depending on the amount of money involved in the case: (1) the Circuit Civil Division, (2) the County Civil Division, or (3) the Small Claims Division. Cases where the amount sought in the suit is $5,000 or less usually belong in the Small Claims Division.

Small Claims Mediation (Pre-Trial)
It is always interesting to me to see the expression on a defendant's face when he or she first finds out that most of the Florida Rules of Civil Procedure DO NOT APPLY in Small Claims court. To begin with, discovery (i.e. depositions, interrogatories, production requests, etc.) is generally either extremely limited or altogether prohibited. If you file suit in Small Claims court thinking you are going to be involved in a full-blown, knock-down, drag-out fight you need to think again. "A pound of flesh nearest the heart" has very little place in Small Claims court. Short, sweet and to the point is what Small Claims is all about.

The Nuts and Bolts of the Small Claims Process
It has been my experience that Small Claims court is primarily designed to help the two parties work their case out prior to trial. This design is typified by the process itself. Once suit is filed the Small Claims court (often the same judge who runs County Civil) sets a Mediation, or Pre-Trial, date. The Pre-Trial date requires both parties to show up on a set date, sit down with a mediator and try to work things out.

In practice it works like this. Suit is filed and the defendant is served with the papers. The suit papers contain a Pre-Trial date instructing both parties to appear before the Court on a certain date. There are usually a number of other cases and parties scheduled to appear on the same date and at the same time. The judge will then call roll (yes, just like elementary school) and the parties answer "present," "here," or some other respectful reply to the judge. If both parties to a case appear, the judge will assign the case to a mediator. The parties will go into a separate room in the Courthouse and try to work their case out. If the case cannot be worked out, the parties will then return to the Courtroom. The judge then assigns a trial date (usually within 30-60 days). The judge will not take testimony at Pre-Trial and no witnesses are required.

Some Words of Caution
The following things should be avoided with regard to Pre-Trials:

(1) Do not leave your cell phone turned on while in the Courtroom. I saw a guy get stared down, yelled at, held in contempt of court, handcuffed and taken to jail all because of his cell phone. In all honesty, if the guy had not answered the phone in open court only the first two would have happened. The judge was clearly not running for re-election;

(2) Do not answer "Uh-huh" when the judge calls your name. You guessed it-stared down and yelled at;

(3) Do not tell the judge "Judge, you don't know what the H--- you're talking about." The judge will likely skip staring you down and yelling at you and just send you straight to jail; and

(4) Do not miss the Pre-Trial. If you miss the Pre-Trial the judge will dismiss the case (if you are the Plaintiff) or enter a judgment against you (if you are the Defendant).