Whether people ask it, or from my own observations, I get that a lot of people are often curious as to whether they should avoid being served with divorce papers. Obviously, I can’t convey legal advice through an online article, and any suggestions provided would only apply to a small amount of you since every situation is different. So, what I will do is go over the two considerations to think about when deciding whether you want to try to avoid being served with divorce papers.

Terminating the Marital Community

First, you need to consider what happens when you get served. Arizona is a community property state. During the marriage, all property and debts acquired are presumptively (not conclusively) community property and debts. That presumption ends once a divorce case is filed AND served. A.R.S. 25-211(A). So, the date you are served with divorce papers in Arizona is legally significant because from that day forward, your marital community terminates and you no longer accumulate community property and/or debts.

This would generally mean that income earned, or other debts incurred after you are served would be the separate property/debt of the spouse earning or incurring the property/debt. A couple of things to note: (1) being served does not change the status of pre-existing community property; (2) being served does not change the status of community property to acquire new property or the status of that new property as community property. A.R.S. 25-211(B).

The “First” Court Order

In addition to the financial ramifications from being served, there are also some additional changes that arise from the Preliminary Injunction. The Preliminary Injunction in a sense is the first set of court orders that get issued in a divorce case. In a nutshell, they are basic orders that prevent either party from selling off property, further encumbering community property, and/or absconding with the kids.

The Preliminary Injunction is effective on the filing party upon filing, and effective on the other party once served. One issue I see come up is that the Preliminary Injunction prevents either party from taking the children out of the state of Arizona without the other parent’s written permission. This along with some of the other restrictions should be considered as they will be effective on you once you are served. If you’d like to see everything the Preliminary Injunction includes, you can see it in A.R.S. 25-315(A).

Consequences for Avoiding Service

The next thing to consider is the consequence of avoiding service. If you avoid service long enough (typically three attempts), then at some point the process server will likely prepare an affidavit for your spouse saying the attempts of service made, and possibly include a statement that he/she thinks you’re avoiding service (for example: attempt made on X date, cars in driveway and lights on and voices heard inside, but no one would come to the door). Once that happens, your spouse can file a motion with the court asking to serve you by an alternative means, which could be granted. This would then likely cost your spouse some additional funds, including some attorney fees.

Presumably, eventually, you will be served one way or another. In the end, if your spouse has info to present to the court that suggests you were avoiding service, then there is a definite chance the court will sanction you in a variety of ways. The two most probable ways are costs and fees. More specifically, you could be ordered to pay all of the service costs your spouse incurred, such as the fees for multiple attempts by the process server and any other costs from the alternative means (such as registered mail, certified email, publication, etc.).  You could also be ordered to pay any attorney fees that were incurred relating to the difficulty of getting you served.

Risks and Benefits

It’s also possible that the court could impose additional sanctions, but costs and fees are the two most common and likely outcomes. As with most litigation, it comes down to a risk/benefit analysis. There are some risks to avoiding service and so if you’re going to take on that risk there should be a corresponding, or greater benefit. For many people, there really is no significant benefit to avoiding service other than delaying the angst that comes with divorce. However, if you think there are real tangible benefits to avoiding service, you might be best off consulting with an attorney to figure out exactly what you stand to gain and possibly lose.

Once you do finally get served (or accept service), you can read here to see some tips on what to do next.