Can You Lodge a Consent Decree in an Arizona Divorce

Tue 20th Mar, 2018 Arizona Divorce Laws

The Short Answer

The short answer to the question can you lodge a Consent Decree in an Arizona divorce when the other party will not sign it is, no, you cannot lodge a Consent Decree when the other spouse will not sign it because the rule requires both parties to sign the Consent Decree and a lodged Consent Decree does not have the signature of both parties.

The Arizona Court of Appeals memorandum decision in the case of Cryan v. Cryan explained why you cannot lodge a Consent Decree in an Arizona Divorce case.

The Long Answer

The Arizona Court of Appeals in a memorandum decision in the case of Cryan vs. Cryan had to address the issue of whether an Arizona divorce judge may order the parties to submit competing proposed Consent Decrees for the Court to choose which Consent Decree the judge will sign as a way of resolving a divorce in Arizona. The following is what the Arizona Court of Appeals had to say about that issue.

The Court of Appeals took note that Wife filed a petition for dissolution in June 2015 while she resided in Arizona and Husband resided in New York.

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The Court of Appeals indicated that, after the final trial and taking the matter under advisement, the family court issued a ruling addressing legal decision-making and parenting time.

The Court of Appeals reviewed the record and stated that the ruling, however, did not address the allocation of property and debt, how to account for Husband’s overpayment of child support or the division of travel expenses related to long-distance parenting time. The court then directed the parties to “submit a Consent Decree to the Court for review and signature” by November 18, 2016.

The Court of Appeals stated that the parties were apparently unable to reach a consensus regarding the issues that remained unaddressed by the family court, and on November 18, 2016, Husband lodged a proposed decree that included orders regarding the allocation of property and debt, as well as travel expenses related to long-distance parenting time.

The Court of Appeals stated Husband’s proposed decree also ordered Wife to repay Husband the child support overpayment within the next month. That same day, Wife objected to Husband’s proposed decree and asked the court to wait until she submitted her own proposed decree before making a ruling.

The Court of Appeals further stated that on November 30, 2016, the family court adopted Husband’s proposed decree without further explanation. The wife then filed her proposed decree and moved the court, unsuccessfully, to reconsider its ruling after considering her position. Wife timely appealed.

The court of appeals reports that Wife argued the family court erred as a matter of law by adopting Husband’s proposed decree instead of making an independent decision on the disputed issues.

The Court of Appeals pointed out that a consent decree “is one that is entered by stipulation of the parties.” The Court of Appeals further noted that a Consent Decree is wholly different from a judgment issued by the court after a trial upon the merits of the case.

The decision to proceed by Consent Decree rests solely with the parties. When the parties agree to do so, “[t]he judge or commissioner assigned to the case shall determine whether the parties have met the requirements for a Decree, Order, or Judgment by consent.”

The Court of Appeals ruled that even if the family court had been empowered to order the parties to proceed via consent when contested issues remained unresolved, to be valid, a consent decree must be signed and notarized by both parties, signed by counsel if represented, and specifically state that: (a) the parties agree to proceed by consent; (b) each party believes no duress or coercion is involved; (c) for any dissolution or legal separation, each party believes that any division of property is fair and equitable; (d) each party understands that he or she (i) may retain or has retained legal counsel of his or her choice and (ii) is waiving the right to trial; and (e) the effect, if any, on any existing protective orders.

The Court of Appeals ruled that Husband’s decree did not comply with Rule 45 and did not even purport to represent a consensual agreement. Accordingly, the form, content, and execution of the “consent order” Husband filed did not comport with the relevant rule, and the court erred in accepting it.

The Court of Appeals notes that Husband argued the family court had the discretion to order the parties to submit a proposed form of order.

In response, the Court of Appeals ruled that while the court may direct the parties to submit proposed findings of fact and conclusions of law, those findings must be “consistent with the [findings and conclusions] that [the court] reaches independently after properly considering the facts.”

The Court of Appeals stated the record contained no indication the court ever received, let alone considered, evidence or testimony regarding the allocation of property and debt. Thus, the court erred in adopting findings and conclusions addressing those issues in the form of a Consent Decree.

Arizona Divorce and Lodging Consent Decree

Therefore, the Court of Appeals vacated the Consent Decree and remanded the case back to the trial court.

If you have questions about lodging a consent decree in an Arizona divorce case, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona divorce and family law attorneys have decades of combined experience successfully representing clients in divorce and family law cases.

Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.

Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona divorce or family law case around today.

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