I Can’t Find My Spouse to Serve Them with Divorce Papers

By James Jennings

So you find yourself in a situation where you have filed for divorce – or some other legal action – and you husband or wife has disappeared or you haven’t seen them in years.  This actually is a lot more common than you would think.  So now what?

I remember a few years back an elderly gentleman came into my office looking to divorce his wife.  You see he married her in 1942 in Phoenix during World War II.  He went on to further explain that they had only spent one night together before he shipped out to the Europe to fight in that war.  Unfortunately he had not seen her since.  When he came back stateside she was nowhere to be found.  In essence he had not had contact with her for more than 71 years.  He realized that he had one-foot in the grave so to speak and he did not want her to have a legal claim to his estate should he pass.  He wanted to have his children from another marriage to get his property now that his other wife had died some five years prior to him coming in to see me for a divorce. I’m not even going to get into how his second marriage wasn’t legal because he didn’t divorce his first wife – can anyone say bigamy- but suffice it to say he needed to divorce his first wife.

Arizona Rules of Family Law Procedure (ARFLP) Rule 41(B)  requires all legal documents to be served on the opposing party – in a divorce that would be the Respondent – so that they have notice of the divorce and what they can do to be heard if they want to contest the terms of that divorce. Fortunately, there is a way to obtain a divorce when you have a missing spouse.  The same rule in Sub-part M states that if you do not know the residence of the other party you can serve them legal notice through the newspaper.

… where the person to be served is one whose residence is unknown to the party seeking service but whose last known residence address was within the state, or has avoided service of process, and service by publication is the best means practicable under the circumstances for providing notice of the institution of the action, then service may be made by publication…

Sub-part M goes on to further state how to accomplish this.  First, you must run the legal notice, that being the summons in a newspaper of general circulation once a week for four weeks.

Such service shall be made by publication of the summons, and of a statement as to the manner in which a copy of the pleading being served may be obtained, at least once a week for four successive weeks (1) in a newspaper...”

And this notification must run in the county where the case is filed and the county of last know residence of the person you are trying to serve notice to.

…a newspaper published in the county where the action is pending, and (2) in a newspaper published in the county of the last known residence of the person to be served, if different from the county where the action is pending.

So in the above example of the World War II veteran bigamist, since he filed in Maricopa County and his wife’s last know residence was Maricopa County the publication would only run in Maricopa County.    So he only has to pay for publicizing in just one county, however, if she had live in Navajo County and he filed in Maricopa then he would have to publicize in both counties. (Rule 42 has information about what to do if they reside outside of Arizona’s jurisdiction.)

It also important to note that if you choose this method of service you must have done everything possible to find your missing wife or husband.  The court considers this sort of legal notice as a “method of last resort”.  You just cannot run a legal notice in the newspaper because you want to avoid serving you husband or wife by another method.

Most judges demand that you do your due diligence first.  Judges usually want you to do the following first BEFORE you use the newspaper for service:

  1. Contact family and friends of your spouse and ask if they know where they are;
  2. Contact the military and see if they are in the armed services;
  3. Contact the Arizona Department of Corrections and see if they have been incarcerated;
  4. Do an internet search and see if they turn up;
  5. And finally, do a phone directory search.

If all this fails to bear fruit then most judges will be satisfied that you really did try to find your spouse and you have no other alternative but to serve notice through the newspaper.

Now there are some pros and cons to doing a “newspaper divorce”.

Pros of a Newspaper Divorce

The court will grant you a divorce and you can move on with your life.  Get remarried, buy a house, win the lottery, etc.

Cons of a Newspaper Divorce

A newspaper divorce is like the Sword of Damocles.  Your husband or wife can come back years later and have the case re-opened because they were not “personally” served with divorce papers.

Also, the judge will not order anything to do with the division of property (real or personal), debts, retirement, alimony (spousal maintenance), child support,  child custody (legal decision making authority), parenting time or any other issue other than giving you back your maiden name or restoring any name you ever legally had prior to your current marriage.

This too is all addressed in ARFLP Rule 41(M)

Service by publication is not sufficient to confer jurisdiction upon the court to determine issues of paternity, child support, spousal maintenance, division of marital property, or any other issue requiring personal jurisdiction over a party.

Therefore, if you ever find this person and these issues are important to you then you have to re-open the case and address theses issues.

Finally, newspaper divorces take around four months to complete from beginning to end if they are uncontested.  That’s a full thirty days longer than the typical divorce that is served by a different method.

The good news is Discount Divorce & Bankruptcy is extremely experienced in handling newspaper divorces.  We have done thousands in the past twenty years.

We will manage all aspects from setting up the publication in a newspaper that will be accepted by the Court as a proper newspaper.  We will prepare all required affidavits that have to filed and sent to the judge.  And finally, we will set the required hearing up with appropriate judicial officer so that your divorce will be finalized.

I always feel a little bit sorry for people that try to do a newspaper divorce without assistance of a professional like us.  It’s sort of like trying to do surgery on your dog without a veterinarian.  You’d better dig a hole first because the chances of success are slim.  If your intend to serve notice by publication and you want it done right the first time call us.

If you have any questions regarding a specific legal matter or legal strategy you should contact an attorney for legal advice.  If you would like to get started on a family law or bankruptcy case call us today, 602-896-9020, email us at discountdivorce@msn.com, or visit our website at DiscountDivorcePro.com.

We invite you to subscribe to Discount Divorce & Bankruptcy Twitter account: @discountdivorce and Facebook page: facebook.com/discountdivorce Both of these social media sites have value information.

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Saving Your Marriage

By James Jennings

I have people come into the office after they got served divorce papers and tell me that they don’t want to get divorced.  I also I people call me and tell me they want a divorce but their spouse will not sign the divorce documents because they won’t give them a divorce.  The grim reality is this: if someone wants out of a marriage in Arizona then the court is not going make two people stay married.  The court will grant the divorce.

This is not to say that there is no hope.  You can try counseling, you can take a break from one another by filing a legal separation instead of pursing the nuclear option (divorce).  You can try talking with one another -especially if children are involved and seeing what’s in their best interest.

The court also has some services that might be able to resolve your issues in a divorce.  One such service is Conciliation Services.  The process begins with filing a request – which Discount Divorce and Bankruptcy can assist you with.  Once the request is filed for Conciliation Services the court will put the divorce process on hold for 40 days.

The meeting with Conciliation Services is usually within 4 weeks of filing the request.  You’ll meet with a staff member who has at least a Master’s Degree in in Mental Health and 2 years of experience in counseling or social work.  These people can speak to each of you intelligently about parenting time disputes, legal decision making, and other family issues that may be of concern to you.

However, in the long run if Conciliation Services doesn’t work then it may be time to move on and accept the fact that the marriage is over.  You may have to learn to let go and focus on what’s best for the children and your life by concentrating the divorce case and navigating the best outcome for all involved.

I like what Tupac Shakur, an American rapper and actor said:

“You can spend minutes, hours, days, weeks, or even months over-analyzing a situation; trying to put the pieces together, justifying what could’ve, would’ve happened… or you can just leave the pieces on the floor and move the [expletive] on.”

If you have any questions regarding a specific legal matter or legal strategy you should contact an attorney for legal advice.  If you would like to get started on a family law or bankruptcy case call us today, 602-896-9020, email us at discountdivorce@msn.com, or visit our website at DiscountDivorcePro.com.

We invite you to subscribe to Discount Divorce & Bankruptcy Twitter account: @discountdivorce and Facebook page: facebook.com/discountdivorce Both of these social media sites have value information.

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The Myth of Gender Bias in Child Custody Cases

By James Jennings

We’ve all heard it at one time or another, “Women always get custody of the children.  It’s so unfair!”  Well is that really true?  Do women ALWAYS get custody of the children?

How about this one, “She won’t allow me to see the kids so that means I can’t see them anymore.”  That’s the one that really gets my goat.  You stop being a father because she said.  Really?

From a legal perspective, the Family Court in Arizona is obligated to focus on the best interests of the children.  Ariz.Rev.Stat. §25-403 is the statue that the court must take into consideration when determining which parent will have legal decision making authority (what most people call custody) and what the parenting time (what most people call visitation) will be in all cases regarding minor children.

§25-403(A) says in part:

The court shall determine legal decision-making and parenting time, either originally or on petition for modification, in accordance with the best interests of the child. …

You noticed what the standard here is?  The standard is: “… in accordance with the BEST INTEREST of the child”.

Does it say anything about male or female, mother or father, or anything else about gender?  No, the law is completely gender blind when it comes to custody determinations.  The only thing that the law cares about is the children and what is best for them.

This notion that men should automatically be deemed an inattentive, emotionally distant and a poor caretaker by virtue of his chromosomal makeup is silly.  Just as much a woman be presumed inherently skilled at care taking, being attentive to the emotional needs of her children, or a more nurturing parent purely by virtue of her uterus. All aspects of humanity are relative and the good people over at state legislator know this to be true.  That’s why they had the good sense to pass such an awesome law.

I have seen a lot of my male clients get custody of their children solely on the fact that it was better for the kids to have dad make all the major decisions regarding the kids than it was for mom to do it.  Women like men can have their faults and sometimes those faults are not conducive to raising a child.

The court looks at a lot of factors when determining who gets custody.  §25-403 has a whole laundry list of things that help judges make this determination.

The court shall consider all factors that are relevant to the child’s physical and emotional well-being, including:

1. The past, present and potential future relationship between the parent and the child.

2. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest.

3. The child’s adjustment to home, school and community.

4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.

5. The mental and physical health of all individuals involved.

6. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.

7. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.

8. Whether there has been domestic violence or child abuse.

9. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.

10. Whether a parent has complied with chapter 3, article 5 of this title.

Number 10 is the required Parent Information Program or PIP class that all parents must take in a divorce, legal separation, annulment or paternity case filed in Arizona.  Don’t take this required class and you may find yourself not getting custody.  See Ariz.Rev.Stat. §25-351 for more details.

11. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.

It is obviously, not all men make great fathers just like all women are not vindictive. The majority of cases I see involve two parents whose lives together didn’t work out, want what is best for their children and understand the role each parent plays. But divorce does strange things to people. They will sometimes act out of character and with the urging of friends and attorneys take on a “win at all costs” attitude. And when this takes place it is invariably the child that ends up losing the most.

If at all possible, both parents should work together and ask the court for Joint Legal Decision Making (Joint Custody).  Joint Legal Decision Making doesn’t mean that the children live half of the time with mom and the other half of the time with dad.  It means that BOTH parents will work together in making the decisions regarding the upbringing of their kids.   The will work in concert in deciding what school they go to. What doctors they see and what the treatment plan is should they become ill and so on.

I know from experience that most judges are happy to award Joint Legal Decision Making.  It far better to have two parents working together for their children than it is for one.

If you need assistance in preparing a Joint Legal Decision Making Parenting Plan as part of your case call me.  I have twenty years of experience and we can discuss all the options available to you so that you can come up with a plan that will work for you and pass the requirements of both the law and the court here in Arizona.

I like what Jane Dee Hall, the 20th Governor of Arizona said, “At the end of the day, the most overwhelming key to a child’s success is the positive involvement of parents.”

A truer thing has never been said.  Governor Hall was a wise woman.

If you have any questions regarding a specific legal matter or legal strategy you should contact an attorney for legal advice.  If you would like to get started on a family law or bankruptcy case call us today, 602-896-9020, email us at discountdivorce@msn.com, or visit our website at DiscountDivorcePro.com.

We invite you to subscribe to Discount Divorce & Bankruptcy Twitter account: @discountdivorce and Facebook page: facebook.com/discountdivorce Both of these social media sites have value information.

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A Change in Community Property Laws for Arizona

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By James Jennings

Senate Bill 1309 has passed and come August of 2016 will take effect.  SB1309 changes in the wording of Ariz.Rev.Stat. §25-318 and creates Ariz.Rev.Stat. §25-318.02.

In a nutshell it will make it very expensive for convicted criminals to be awarded any community property in a divorce or legal separation.  The changes to the community property statue,  Ariz.Rev.Stat. §25-318 and the newly created Ariz.Rev.Stat. §25-318.02 basically states that anyone convicted of a felony that carries a sentence of 80 years to life, with or without the possibility of parole may not be awarded community property unless the parties to the case have agreed to it.

Moreover, if one spouse has already been ordered to make installment payments to the other spouse, and the receiving spouse is subsequently convicted of a crime and sent to prison, the spouse making the payments can ask the court to modify his or her ongoing payment obligations.

This substantial change to the community property laws of Arizona is very punitive to felons with lengthy prison terms, but does lessen the burden of the other spouse so he or she can move on with their life in my opinion.

For more information about how this may effect your legal rights contact an attorney.

You may read SB1309 at: http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/52leg/2R/laws/0159.htm&Session_ID=115