What can I do if I have requested items from the opposing part or counsel in my Arizona family law case, but they won’t answer my requests?

If a formal discovery or production request was made on the opposing party or their counsel, but they refuse to turn the items over without proper objection, then a “motion to compel” can be filed with the court.

Rule 65, Arizona Rules of Family Law Procedure, (“ARFLP”) allows for a motion to compel to be filed if a party has failed to make disclosure required by Rule 49, 50, 57, 58, 60, or 61.  If a motion to compel must be sought, then the requesting party may also request that the court order appropriate sanctions against the offending party.

Keep in mind, that no Motion to Compel may be sought or considered unless a separate statement of the requesting party is attached to the motion certifying that, after personal consultation and good faith efforts to do so, the parties have been unable to satisfactorily resolve the matter.

If the requesting party is represented by counsel and/or has incurred attorney fees and costs by filing an appropriate motion to compel, then the court, after affording an opportunity for the other side to be heard on the issue, can require the party whose conduct necessitated the motion to pay the requesting party the reasonable expenses incurred in making the motion, including attorneys’ fees, unless the court determines that the motion was filed without the requesting party first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party’s nondisclosure, response, or objection was substantially justified or that other circumstances make an award of expenses unjust.

This is just a basic overview of the relief available. For more specific information regarding this or any other family law issue it is suggested that you contact the discounted, experienced attorneys at the law firm of Ariano & Reppucci, PLLC.

What Items Must I Disclose In My Arizona Family Law Case?

First and foremost, today’s Blog post, although highly informative is extremely dense and better described as boring. With this stated, if you are a party to a Family Law matter in Arizona and your case requires disclosure, then I would recommend the following as a must read.

Rule 49, Arizona Rules of Family Law Procedure (“ARFLP”) govern disclosure and discovery practice in Arizona Family court matters.  Rule 49 sets forth that the requirements of the Rule are minimum disclosure requirements for every family law case. Unless otherwise provided for in the Rule or agreed to by the parties, within forty (40) days after the filing of a response to an initial petition, each party shall disclose in writing to every other party the information set forth below:

A. Resolution Statement. Each party shall disclose a written Resolution Statement in a form that substantially complies with Rule 97, Form 4 or 5, as applicable, setting forth any agreements and a specific, detailed position the party proposes to resolve all issues in the case, without argument in support of the position.

B. Child Support. In a case in which child support is an issue, each party shall disclose the following information:

1. a fully completed Affidavit of Financial Information on a form substantially in compliance with Rule 97, Form 2;

2. proof of income of the party from all sources, specifically including complete tax returns, W-2 forms, 1099 forms, and K-1 forms, for the past two (2) completed calendar years, and year-to-date income information for the current calendar year, including, but not limited to, year-to-date pay stub, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, worker’s compensation benefits, unemployment insurance benefits, disability insurance benefits, recurring gifts, prizes, and spousal maintenance;

3. proof of court-ordered child support and spousal maintenance actually paid by the party in any case other than the one in which disclosure is being provided;

4. proof of all medical, dental, and vision insurance premiums paid by the party for any child listed or referenced in the petition; 

5. proof of any child care expenses paid by the party for any child listed or referenced in the petition;

6. proof of any expenses paid by the party for private or special schools or other particular education needs of a child listed or referenced in the petition; and

7. proof of any expenses paid by the party for the special needs of a gifted or handicapped child listed or referenced in the petition.

C. Spousal Maintenance and Attorneys’ Fees and Costs. If either party has requested an award of spousal maintenance or an award of attorneys’ fees and costs, each party shall disclose the following information:

1. a fully completed Affidavit of Financial Information on a form substantially in compliance with Rule 97, Form 2; and

2. those documents set forth in subdivision B(2) above.

D. Property. Unless the parties have entered into a written agreement disposing of all property issues in the case, or no property is at issue in the case, each party shall provide to the other the following information in every action for dissolution of marriage or for legal separation:

1. copies of all deeds, deeds of trust, purchase agreements, escrow documents, settlement sheets, and all other documents that disclose the ownership, legal description, purchase price and encumbrances of all real property owned by any party;

2.copies of all monthly or periodic bank, checking, savings, brokerage and security account statements in which any party has or had an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure;

3. copies of all monthly or periodic statements and documents showing the value of all pension, retirement, stock option, and annuity balances, including Individual Retirement Accounts, 401(k) accounts, and all other retirement and employee benefits and accounts in which any party has or had an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available during this time period, the most recent statements or documents that disclose the information;

4. copies of all monthly or periodic statements and documents showing the cash surrender value, face value, and premiums charged for all life insurance policies in which any party has an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available for this time period, the most recent statements or documents that disclose the information;

5. copies of all documents that may assist in identifying or valuing any item of real or personal property in which any party has or had an interest for the period commencing six (6) months prior to the filing of the petition, including any documents that the party may rely upon in placing a value on any item of real or personal property;

6. copies of all business tax returns, balance sheets, profit and loss statements, and all documents that may assist in identifying or valuing any business or business interest for the last two (2) completed calendar or fiscal years with respect to any business or entity in which any party has or had an interest; and

7. a list of all items of personal property, including, but not limited to, household furniture, furnishings, antiques, artwork, vehicles, jewelry and similar items in which any party has an interest, together with the party’s estimate of current fair market value (not replacement value) for each item.

E. Debts. Unless the parties have entered into a written agreement disposing of all debt issues in the case, each party shall provide to the other the following information in every action for dissolution of marriage or for legal separation:

1. copies of all monthly or periodic statements and documents showing the balances owing on all mortgages, notes, liens, and encumbrances outstanding against all real property and personal property in which the party has or had an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available during this time period, the most recent statements or documents that disclose the information; and

2. copies of credit card statements and debt statements for all months for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure.

F. Disclosure of Witnesses. Each party shall disclose names, addresses, and telephone numbers of any witness whom the disclosing party expects to call at trial, along with a statement fairly describing the substance of each witness’s expected testimony. A party shall not be allowed to call a witness who has not been disclosed at least sixty (60) days before trial, or such different period as may be ordered by the court.

G. Disclosure of Expert Witnesses. Each party shall disclose the name and address of each person whom the disclosing party expects to call as an expert witness at trial, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which  the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness, and the name and address of the custodian of copies of any reports prepared by the expert. A party shall not be allowed to call an expert witness who has not been disclosed at least sixty (60) days before trial or such different period as may be ordered by the court.

H. Continuing Duty to Disclose. The duty described in this rule shall be a continuing duty, and each party shall make additional or amended disclosures whenever new or different information is discovered or revealed. Such additional or amended disclosures shall be made not more than thirty (30) days after the information is revealed to or discovered by the disclosing party.

I. Additional Discovery. Nothing in the minimum requirements of this rule shall preclude relevant additional discovery on request by a party in a family law case, in which case further discovery may proceed as set forth in Rule 51.

For help with preparation of disclosure items listed above or for further clarification of the items listed above or for questions regarding any other Arizona Family Law matter please contact Attorney Ryan M. Reppucci of the Discount Law Firm of Ariano & Reppucci, PLLC at 602-515-0841.  

Physical, Mental and Vocational Evaluations of Persons In Arizona Family Court Cases

Rule 63, Arizona Rules of Family Law Procedure, (“ARFLP”) provides authorization, in certain situations, for the court to order that a party to a Family Court action submit to a physical, mental or vocational evaluation.

Rule 63, expresses that, with regard to Arizona Family Law Cases, when the mental, physical, or vocational condition of a party or any other person is in controversy, the court may order that person to submit to a physical, mental, or vocational evaluation by a designated expert or to produce for evaluation the person in the party’s custody or legal control.

The order may be made only on motion for good cause shown and upon notice to the person to be evaluated (unless the person to be evaluated is a minor child of one or both of the parties), and to all parties and shall specify the time, place, manner, conditions, and scope of the evaluation and the person or persons by whom it is to be made. The person to be evaluated shall have the right to have a representative present during the evaluation, unless the presence of that representative may adversely affect the outcome of the evaluation.

Rule 63 can be an invaluable mechanism in custody cases where the physical or mental health of one or more of the parties is in question. Meaning that in some way, the requesting party believes that another’s ability to “parent” because of mental or physical defects is paramount to the court’s custody determination. This Rule should not be employed in all cases, nor used to simply harass a party. There are very limited and specific reasons why requests should be made under Rule 63. For more information on whether your case warrants relief under Rule 63, it is strongly suggested that you meet with an experienced Arizona Family Lawyer prior to filing such request.

Finally, Rule 63 provides very specific requirements both procedurally and timing that must be met in using or suggesting evaluators to conduct such examinations. For this reason it is again urged that prior to making this request with the Court, that one meet with an experienced Arizona Family Law Attorney.

Having used Rule 63 many times and in many cases, Ariano & Reppucci, PLLC can assist during your free consultation in determining whether your desired Rule 63 request is reasonable. Ariano & Reppucci, PLLC, Arizona’s 24 Hour Family Law Firm can be contacted at 602-515-0841 or by visiting www.familyattorneys-arizona.com  

Early Resolution Conferences (ERC) v. Resolution Management Conference (RMC) in Arizona

An Early Resolution Conference (ERC) is generally scheduled when both parties are unrepresented. The ERC is conducted by a conference officer, and during the time set (usually up to 2 hours), the parties and the conference officer discuss which issues have been agreed and which are still in dispute. If all issues are agreed, the conference officer may be able to write up the agreement and take it to a judge to sign and finalize the divorce. If there are still disputed issues, the conference officer will provide a date that the parties return to court to see the judge for a trial.

A Resolution Management Conference (RMC) is generally scheduled when one or both parties are represented by counsel. The RMC is conducted by the judge assigned to the case, and usually lasts 15-30 minutes. This is not a time to present evidence and testimony; rather, it is a time to let the judge know whether or not there are agreements, and to decide what type of services might be appropriate to move the case forward (e.g. mediation, settlement conference, etc.). The judge will generally set a trial date as well as the deadlines for pretrial activities.

What items do I need to “disclose” to the other party in my Arizona Family Court matter?

The answer to this question is specifically laid out in Rule 49, Arizona Rules of Family Law Procedure. The relevant portions of that rule have been provided for your review. However, the rule itself is rather extensive and often to a pro se party difficult to comply with. For that reason, it is suggested that you meet with an experienced Arizona Family law attorney to ensure that you are providing proper disclosures in your family law matter.

In relevant text, Rule 49 states:

The requirements of this rule are minimum disclosure requirements for every family law

case. Unless otherwise provided for in this rule or agreed to by the parties, within forty (40) days

after the filing of a response to an initial petition, each party shall disclose in writing to every

other party the information set forth in this rule.

Section “A” of Rule 49 governs “resolution statements” and proclaims:

Each party shall disclose a written Resolution Statement in a form that substantially complies with Rule 97, Form 4 or 5, as applicable, setting forth any agreements and a specific, detailed position the party proposes to resolve all issues in the case, without argument in support of the position.

Proposed resolution statements can be found online through the Maricopa County Superior Court and State Supreme Court websites.

Section ‘B” of Rule 49 governs what items must be disclosed in cased where child support is at issue. The following demonstrates the minimum disclosure requirement in child support matters:

1. a fully completed Affidavit of Financial Information on a form substantially in compliance with Rule 97, Form 2;

2. proof of income of the party from all sources, specifically including complete tax returns, W-2 forms, 1099 forms, and K-1 forms, for the past two (2) completed calendar years, and year-to-date income information for the current calendar year, including, but not limited to, year-to-date pay stub, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, worker’s compensation benefits, unemployment insurance benefits, disability insurance benefits, recurring gifts, prizes, and spousal maintenance;

3. proof of court-ordered child support and spousal maintenance actually paid by the party in any case other than the one in which disclosure is being provided;

4. proof of all medical, dental, and vision insurance premiums paid by the party for any child listed or referenced in the petition;

5. proof of any child care expenses paid by the party for any child listed or referenced in the petition;

6. proof of any expenses paid by the party for private or special schools or other particular education needs of a child listed or referenced in the petition; and

7. proof of any expenses paid by the party for the special needs of a gifted or handicapped child listed or referenced in the petition.

Section “C” of Rule 49 governs items that are to be disclosed in cases of spousal maintenance and Attorneys’ Fees and costs. In relevant text, in such situations, the parties must disclose to the other:

1. a fully completed Affidavit of Financial Information on a form substantially in compliance with Rule 97, Form 2; and

2. those documents set forth in subdivision B(2) above.

Sections “D” & “E” of Rule 49 govern items that are to be disclosed in cases where property and debt are at issue. This list is rather expansive and often leads to questions regarding production. Therefore, the specifics thereof of be purposely omitted from this article. If your matter is one involving property or debts, it is highly recommended that you meet with an experienced Arizona Family Law Attorney.

Sections “F” & “G” of Rule 49 require further that both parties properly disclose to the other a list of intended lay and expert witnesses and provide appropriate information and proposed testimony of each.

Finally, Rule 49 mandates that both parties to a family court action have a “continuing” duty to disclose after acquired or newly discovered information related to any of the Rules governing terms. It is important that if any such information is obtained, that you supplement your initial disclosures within thirty (30) days of acquiring such information.

For more information on this or any other Arizona Family Law Matter, contact the experienced Phoenix, Arizona based Family Law Firm of Ariano & Reppucci, PLLC.

Arizona’s Dissolution (Divorce) Process; Part 3

The prior installments of this series have focused on the dissolution process prior to the defending party’s filing of a responsive pleading. Part three of this series will focus on the process and procedure of a dissolution matter once both parties have appeared in the case. Meaning, a Petition and supporting documents have been filed, served, and a Response thereto filed by the defending party.

Once a responsive pleading has been filed in your dissolution matter, each party will have forty days (40) days to provide to the other “initial disclosures” outlined in detail by Rule 49, Arizona Rules of Family Law Procedure, (ARFLP).

In addition to initial disclosures, there are many court and private alternative dispute resolution services (ADR), which either party may request referral to by the court. For a better understanding of what ADR services are available, it is suggested that you contact an experienced Arizona family law attorney or the experienced Phoenix, Arizona Family Law Firm of Ariano & Reppucci, PLLC.

It should be noted that at anytime, the parties can come to a settlement agreement and/or other partial agreements in accord with relevant sections of the ARFLP. Keep in mind that agreements reached should always be in writing and executed by both parties. If a full settlement is reached in your matter, you may file a notice of settlement with the court and after expiration of the required “waiting” period submit a consent decree and supporting documents to the court for processing.

In the event agreements are not reached, and temporary orders have not been requested, the court will next set either an “early resolution conference hearing” or “resolution management conference hearing”. The purpose of the resolution conferences is to afford the parties an opportunity to discuss reasonable settlement of their matter if they have not already done so. Again, at a resolution conference, the parties can agree on everything, some things, or nothing. A judge will be inclined to enter as binding orders that or those items agreed upon by the parties as a result of a resolution conference.

If a resolution conference proves unsuccessful in fully resolving the matter, then the discovery process will continue or if ready, the parties can ask that the court set a trial date in the matter. After a trial date has been set, it is important to gather and disclose all evidence that a party desires to use to support his or her positions. There are many different ways to go about collecting pertinent evidence. If you have questions or concerns about what information is or is not relevant to your case, it is again suggested that you meet with an experienced Arizona family law attorney or the experienced Phoenix, Arizona Law Firm of Ariano & Reppucci, PLLC.

Parties should understand that ADR and settlement is still encouraged even after a trial date has been set in their matter. Likewise, often times appraisals, custody evaluations, interviews, etc. are needed to prepare your case in the event a full settlement is not reached prior to the trial date. To this note, the family court system in Arizona is set up in a way to afford the divorcing parties with every opportunity to settle the matter on their own terms. This generally ensures that both parties are somewhat happy with the outcome of the dissolution. If agreements are not reached and a trial concludes, parties must understand that the judge and not them will make final determination regarding the terms and conditions of dissolution. In this case, more often than not, one or both parties is left feeling unhappy with the terms of dissolution.

This article is meant to be a basic overview of the dissolution process and should not be read as absolute. For more information on this or other Arizona family law matters, it is recommended that you contact and meet with an experienced Arizona family law attorney.

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