A. General. Whenever the petitioner and respondent agree to the terms of a legal separation, annulment, dissolution, paternity, or maternity action, the parties may elect to proceed by Consent Decree, Order, or Judgment without hearing, upon a showing that the required
appearance fees have been paid or deferred. Additionally, for a dissolution or legal separation, sixty (60) days must have passed since the service of process or acceptance of service prior to the submission of the Consent Decree. To proceed with a Consent Decree of Dissolution of Marriage, the parties shall jointly submit a Consent Decree substantially in compliance with Rule 97, Form 8 and shall state the terms upon which the parties have agreed. The judge or commissioner assigned to the case shall determine whether the parties have met the requirements for a Decree, Order, or Judgment by consent.
B. Decree, Order, or Judgment. The Decree, Order, or Judgment shall comply with the requirements of this paragraph B.
1. If a party is represented by counsel, counsel shall sign the Decree, Order, or Judgment, and if a party is not represented by counsel, the party shall sign the Decree, Order, or Judgment.
2. If any party is receiving benefits under Temporary Assistance for Needy Families (TANF) (formerly AFDC) or the Title IV-D program, the parties shall obtain the written approval of the Attorney General for any specified child support amount.
3. In any action for dissolution, annulment, or legal separation, the parties shall indicate the following:
a. whether the marriage is or was a covenant marriage;
b. whether there are children common to the parties; and
c. whether the wife is pregnant with a child common to the parties.
4. The Consent Decree, Order, or Judgment shall 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 Consent Decree, Order or Judgment shall also state the effect thereof, if any, on any protective orders.
5. The Consent Decree, Order, or Judgment shall be dated and signed by both parties, and the signature of each party shall be subscribed and sworn to (or affirmed to) before a notary public. Instead of notarization, the person may sign the consent decree in the presence of the clerk after verification of the person’s identity by the clerk. If a party is represented by counsel, counsel also shall sign the Consent Decree.
C. When Children Are Involved. When there are children common to the parties, the parties shall include the following:
1. provision for custody and parenting time by a separate parenting plan or within the Consent Decree, Order, or Judgment;
2. a separate or incorporated Child Support Order supported by a separate or incorporated Child Support Worksheet (if any deviation in the child support amount is requested, the Consent Decree, Judgment or Child Support Order shall include a statement of the basis for deviation, as set forth in the Child Support Guidelines);
3. copies of each parent’s Parent Information Program Certification of Completion;
4. a completed Order of Assignment, including current employer information sheet;
5. a completed Judgment Data Sheet, if required;
6. if the parties are requesting joint custody, a statement as to whether domestic violence has occurred, and the extent of any such violence; and
7. for a paternity or maternity action, the identity 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 such authority if not the instant case.
Rule 46
. DismissalA. Voluntary. Any family law case or post-decree petition may be dismissed (1) by the petitioner or the filing party without order of court by filing a notice of dismissal at any time before service of a response, or (2) by order of the court pursuant to a stipulation of dismissal signed by all parties who have appeared in the action. If a response has been filed to a petition or post-decree petition, the petition may be dismissed by the petitioner or the filing party only by motion and upon such terms and conditions as the court deems proper, including proper adjudication of any pending counterclaims or counter petitions filed by an opposing party.
Unless otherwise stated in the notice or order of dismissal, the dismissal is without prejudice.
B. Involuntary Dismissal; Effect.
1. One hundred twenty (120) days after filing of a petition, if no Motion to Set has been filed by either party, or if the court has not set the matter for trial, hearing, or conference, the court may issue a notice that the matter will be dismissed by the court in not less than sixty (60) days without further notice, unless prior to the expiration of the sixty (60) days a proper Motion to Set or a request for hearing or conference is filed. No case shall be dismissed, however, while there is pending before the court a motion for summary judgment, motion for judgment on the pleadings, or a motion related to genetic testing in a paternity matter. These periods may be extended by the court for good cause shown.
2. For failure of the petitioner to prosecute or to comply with these rules or any order of court, a respondent may move for dismissal of an action or of any claim against the respondent.
3. The court may dismiss any action, post-decree petition, or any pending claim for failure to prosecute the matter after giving all parties notice and an opportunity to object or commence prosecution.
4. Unless otherwise stated in the notice or order of dismissal, the dismissal is without prejudice.
C. Dismissal of Third Party Claim and Counterclaim. The provisions of this rule apply to the dismissal of any third party claim or counterclaim. A voluntary dismissal by the claimant alone pursuant to subdivision A(1) shall be made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial or hearing.
D. Effect of Dismissal. Unless otherwise specifically ordered by the court, the entry of an order dismissing a case serves to dismiss all pending, unadjudicated petitions and issues, but does not dismiss, vacate, or set aside any final Decree, Judgment or Order previously entered in the case.
COMMITTEE COMMENT
Paragraph B of this rule is an adaptation of that portion of existing Rule 38.1, Arizona Rules of Civil Procedure, which deals with dismissals from the Inactive Calendar. The Committee recognizes that the time periods set forth in subdivision B(1) are the same as those set forth in Rule 40(I); however, the word “may” as used in subdivision B(1) allows different counties to impose a time period in excess of four months after filing.