The Decree
There are three types of decree: consent, default and judicial.
A Consent Decree is a decree of dissolution by consent (agreed upon) and a Default Decree is a decree of dissolution in which one party does not respond to the filing. If a court makes the decisions for you and your spouse, they are drafted into a decree that is neither by consent or default, but a Judicial Decree. A court will put all these issues into a “minute entry” and that becomes the decree. If one party has an attorney, the court will often draft the issues into a minute entry and ask one attorney to put the results into a decree.
| Consent Decree | Default Decree | (Judicial) Decree | |
| Petitioner files documents with the Court (6-8 documents) | X | X | X |
| Petitioner serves the other spouse | X | X | X |
| No Response from spouse | X | ||
| Petitioner files Application for Default | X | ||
| Respondent spouse files a Response | X | X | |
| Spouses agree to the terms of their decree | X | ||
| Spouses cannot agree to the terms of the divorce
and must have a trial |
X |
Consent Decree
A consent decree is the final document that the judge or commissioner signs that officially divorces a couple. That consent decree cannot be filed until the 60 days have passed since the service of the petition. Do not submit your decree to the court before the 60 days have passed, because they will return it to you; they usually will not hold it. You and your spouse have to provide your notarized signatures on the Consent Decree to indicate that you have agreed to all the terms that are in the decree. This is legally binding, so be sure you read and understand each and every sentence and the legal significance of the agreements. If you have children, you cannot get your decree signed by the judge/commissioner until you have attended the Parenting Information Class and have filed your Certificate of Attendance with the court clerk, so that it shows up in your file. If you do not understand something in your decree language, do not sign the decree until you do.
In order to prepare a consent decree, the parties need to have agreed as to all aspects of this dissolution or separation. The following issues should be determined and integrated into your decree, so that when your divorce is finalized (the decree is signed by the judge), you are completely finished and all of the issues have been discussed and explained in writing in the decree. When entering into a Consent Decree, the following issues should be decided:
- Legal decision-making of children and parenting time
- Child support of children
- Spousal maintenance
- Attorney’s fees, who pays, if either party
- Division of all personal and real property
- Division of retirement or pension benefits, including future benefits (may need a qualified Domestic Relations Order expert–see Ch 6)
- Provisions as to health insurance for children
- Provision for children’s medical care uncovered by insurance
- Payment of debts
- Payment of federal taxes during year of divorce and after
- Integrated or severable provisions
- Incorporation and merger into the decree
- Execution of conveyances
What documents need to be completed to ask for a Consent Decree?
The following paperwork is required to be signed and notarized by all parties when submitting a consent decree:
- Original Consent Decree of Dissolution/Final Orders and two (2) copies
- Two (2) self-addressed stamped 9-by-12-inch envelopes
For cases with children you will also need:
- Original Parenting Plan and two (2) copies
- Original Child Support Worksheet and two (2) copies
- Original Child Support Order and two (2) copies
- Original Order of Assignment and two (2) copies
- Judgment Data Sheet
- Original Parent Information Program Certificates or conformed copies
Default Decree
A Default Decree can be obtained when only one party has been involved in the divorce proceeding. For instance, if you are the petitioner and your spouse does not answer the petition and he or she is not cooperating, you can still get divorced; you will need to file a Default Decree. Sometimes, spouses will decide that one person files and the other does not answer in order to save the answer filing fee. If you do this intentionally, you must file a Default Decree and show the court that the other side has notice of the divorce by being served with the petition and all the other papers. In a Default Decree, you can draft what you want for the division of property and for the decision-making of the children, but the court has the final say to make sure it is equitable, even though it is a default.
How can I get a default hearing? If service has been proper and no response was filed, you may be able to get divorced by default. See how to file for default: http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter/Forms/FamilyCourt/fc_drdc8.asp
If you want to set a default hearing, you must complete the Application and Affidavit of Default and file it with the clerk of the court. You must be sure service of the petition was complete, and that the other party did not file a written response or answer with the court.
At the time you file the Application and Affidavit of Default with the clerk of the court, make sure you have two (2) copies of the Application and Affidavit of Default date-stamped by the clerk. You must mail or hand-deliver one copy to the other party the day that you filed the Application and Affidavit of Default with the clerk of the court. After you have given the other party a copy of the Application and Affidavit of Default, you must wait 10 court days.
If the other party still does not file a written response or answer in 10 court days, you may be able request a default hearing date.
To request a default hearing in Maricopa County, call 602-372-3332.
You will be asked the following questions (on the next page) before your hearing can be set:
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