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Rule 44.1. Default Decree or Judgment by Motion and Without a Hearing

Arizona Revised Statutes AnnotatedRules of Family Law ProcedureEffective: January 1, 2024

Arizona Revised Statutes Annotated

Rules of Family Law Procedure (Refs & Annos)

Part V. Default Decree and Consent Decree, Judgment, or Order; Dismissal (Refs & Annos)

Effective: January 1, 2024

17B A.R.S. Rules Fam.Law Proc., Rule 44.1

Formerly cited as AZ ST RFLP Rule 44(B)(1) and 44(C)

Rule 44.1. Default Decree or Judgment by Motion and Without a Hearing

Currentness

(a) Generally. The court may enter a default judgment based on documents in the court's file, on motion and without the parties appearing at a hearing, in the circumstances described in this rule. However,

(1) the court may not enter a default judgment without a hearing that is different from what the petition requested, or for amounts greater than requested in the petition, unless the parties have entered into a written separation agreement under A.R.S. § 25-317;

(2) the court may not enter a default judgment without a hearing if the party in default is a minor or an incompetent person; and

(3) the court may not enter a default judgment without a hearing if the party in default was served by publication.

(b) Decree of Dissolution, Annulment, or Separation

(1) Generally. The court may enter a decree of dissolution, annulment, or legal separation on motion without a hearing.

(2) Affidavit. A party requesting a decree without a hearing must include affidavits from one or both spouses with their motion. The affidavit must state facts showing:

(A) jurisdictional requirements have been met;

(B) conciliation provisions of A.R.S. § 25-381.09 have been met or do not apply; and

(3) Appearance. A default decree by motion is not available if the other party has appeared, unless the parties have agreed that the matter may proceed as if by default.

(4) Acting on the Motion. The Court must act on the motion in a timely manner as provided by this subpart.

(A) For petitions for dissolution or legal separation, the court must notify the appearing parties that the motion has been set for hearing or rule on the motion no later than:

(i) 21 days after the filing date of the motion if the motion was filed 60 days or more after the effective date of service of the petition; or

(ii) 81 days after the effective date of service of the petition if the motion was filed less than 60 days after the effective date of service.

(B) For petitions for annulment, the court must notify the appearing parties that the motion has been set for hearing or rule on the motion no later than 21 days after the filing date of the motion.

(c) Judgment of Maternity or Paternity.

(1) Generally. The court may enter a judgment establishing maternity or paternity, and orders regarding legal decision-making and parenting time, on motion and with an affidavit of the State, the mother, or the father.

(2) Affidavit.

(A) The affidavit must state facts showing that jurisdictional requirements have been met and that a default order is appropriate under A.R.S. § 25-813.

(i) If the State requests the default judgment, an affidavit of the mother or the father must establish the factual basis for the finding of paternity.

(ii) If the petition requests entry of an order for current and past support, a child support worksheet that establishes the amounts requested must accompany the motion; and an affidavit must state the basis for determining the gross income of the defaulting parent.

(iii) The affidavit must state facts substantiating any other requested relief.

(3) Acting on the Motion. The court must notify the appearing parties that the motion has been set for hearing or rule on the motion no later than 21 days after the filing date of the motion.

(d) Money Judgments and Attorney Fees.

(1) Generally. If a claim is for a certain sum of money or for a sum of money that can be determined by computation, other than child support, spousal maintenance, or attorney fees, the court may enter judgment on motion with an affidavit and other documentation that establishes the amount due.

(2) Attorney Fees. If the claim for a money judgment requests an award of attorney fees, the judgment may include such an award, if the law allows an award and an affidavit establishes a reasonable amount. When the claim includes a specific amount of attorney fees if the court enters a default judgment, the award may not exceed the amount demanded.

(3) Acting on the Motion. Unless Rule 44.1(b)(4)(A) applies, the court must notify the appearing parties that the motion has been set for hearing or rule on the motion no later than 21 days after the filing date of the motion.

(e) When Children Are Involved or a Party is Pregnant. When the parties have children in common or a party is pregnant, the default decree must include the following:

(1) whether either party is pregnant with a child common to the parties;

(2) provisions for legal decision-making and parenting time, either within the default decree or by a separate parenting plan;

(3) an “Education Order” substantially in conformity with Rule 97, Form 19 or Form 20, as appropriate;

(4) a child support order supported by a child support worksheet, but if a party requests any deviation in the child support amount, the default decree or child support order must state the basis for deviation under the child support guidelines;

(5) if either party is receiving benefits under Temporary Assistance for Needy Families (TANF) or the Title IV-D program, the parties must attach to the default decree the Attorney General's written approval of any specified child support amount;

(6) a copy of the filing parent's certificate of completion of the parent information program, if it has not already been filed with the court;

(7) a completed income withholding order, including the current employer information sheet;

(8) if the parties are requesting joint legal decision-making, a statement as to whether domestic violence has occurred, and the extent of any such violence; and

(9) for a paternity or maternity action, the identities of the natural mother and father and anyone who has lawful status as a parent or custodian of a child, including the court case conferring that status if it is not the current case.

(f) Spousal Maintenance. If a party requests spousal maintenance and chooses to proceed by motion without a hearing, the party must file a form substantially similar to Form 6, Rule 97, Default Information for Spousal Maintenance, with the Rule 44 application for default. The party must file separately the Spousal Maintenance Calculator Worksheet that specifies the requested amount and duration.

(g) Informing Defaulted Party. If a decree or judgment is entered by default, except in those cases resulting in default after service by publication, the party obtaining the decree or judgment must certify on the decree or judgment that, within 3 days of the party's receipt of the decree or judgment, the party obtaining the decree or judgment will mail a copy of the decree or judgment to the party in default at that party's last known address. Failure to comply with this rule does not affect the validity of the decree or judgment entered or the time to appeal or relieve a party from any obligations set forth in the decree or judgment.

Credits

Added Aug. 30, 2018, effective Jan. 1, 2019. Amended Aug. 27, 2019, effective Jan. 1, 2020; amended on an emergency basis, effective Aug. 24, 2023, permanently adopted with additional amendments Dec. 6, 2023, effective Jan. 1, 2024; amended on an emergency basis Aug. 24, 2023, permanently adopted with additional amendments Dec. 6, 2023, effective Jan. 1, 2024.

17B A. R. S. Rules Fam. Law Proc., Rule 44.1, AZ ST RFLP Rule 44.1

State Court Rules are current with amendments received through April 15, 2024. The Code of Judicial Administration is current with amendments received through April 15, 2024.

End of Document