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Rule 49 Arizona Family Law
Rule 49 is one of those terms in Arizona family law that is thrown around very casually, and it is assumed that everyone knows what the person is referring to. But, of course, those not constantly involved in Arizona family law issues like divorce or custody disputes probably do not know the reference. This article provides information on Rule 49, its requirements, and some common issues we see from unrepresented parties not familiar with litigation.
Understanding the Disclosure and Discovery Process in Arizona Family Law
In Arizona Family Law, when people reference Rule 49 they refer to Rule 49 Disclosure, Arizona Rules of Family Law Procedure (“ARFLP”), and Rule 49 falls under the Disclosure and Discovery requirements in Arizona Family Law.
Disclosure and Discovery relate to parties’ requirements to exchange documents—and other information—during litigation and the tools or mechanisms available for parties to obtain additional information for their case.
What is Rule 49 ARFLP?
Rule 49, ARFLP relates specifically to disclosure and identifies the mandatory disclosure requirements in an Arizona family law case. Rule 49 states: “This rule’s disclosure requirements are intended to ensure that each party to an action is fairly informed of the facts, data, legal theories, witnesses, documents, and other information that is relevant to the case.” Additionally, “A party must disclose information in the party’s possession and control, as well as information that the party can determine or acquire by reasonable inquiry and investigation.” See Rule 49 Disclosure.
Disclosure is very broad, but there can be limitations and objections. It may also be appropriate to put protective orders in place to limit dissemination of the disclosed documents—this usually occurs when there are business interests at issue, high net-worth divorces, high-profile parties, or concerns with one party using the information to harass or embarrass another party. These potential limitations, objections, and protections will be case specific. If you have questions about these potential limitations and objections, consult an experienced Arizona divorce and family law lawyer.
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What Must Be Disclosed in Arizona Family Law Under Rule 49?
What must be disclosed depends on what is at issue in the specific family law case. Arizona family law is a broad umbrella topic that includes divorce cases, custody cases, child support, etc. Rule 49 has a specific breakdown of what must be disclosed to the opposing party depending on the issues in the case. But, there may be additional information needed or available to obtain through discovery, so it is important to discuss these requirements with an experienced Arizona family law attorney.
Some examples of the requirements under Rule 49—at the time this article was written—are outlined below; there are additional requirements, so read the current rule in its entirety. Additionally, many times an Affidavit of Financial Information (“AFI”) is required under the rules, for more information on AFI’s, see our article Affidavit of Financial Information in Arizona Divorce and Child Support.
Legal Decision-Making or Parenting Time:
In a case in which legal decision-making or parenting time is an issue, the following documents and information must be served on the other party with the initial disclosure:
(1) a copy of any past or current protective orders and underlying petitions involving a party or member of the party’s household;
(2) the name and address of each treatment provider and period of treatment involving any party for psychiatric or psychological issues, anger management, substance abuse, or domestic violence, occurring within 5 years before the petition’s filing;
(3) the date, description, location, and documentation of any criminal charge against or conviction of any party or member of the party’s household occurring within 10 years before the petition’s filing; and
(4) the date, description, location, and documentation of any Department of Child Safety investigation or proceeding involving any party or member of the party’s household occurring within 10 years before the petition’s filing.
See Rule 49(d), ARFLP.
In a case in which child support is an issue, the following documents must be served on the other party with the initial disclosure:
(1) a fully completed affidavit substantially in the form set forth in Form 2, Rule 97, (“Affidavit of Financial Information” or “AFI”);
(2) proof of the party’s income from all sources, including:
(A) complete tax returns, W-2 forms, 1099 forms, and K-1 forms, for the past 3 completed calendar years, and year-end information for the most recent calendar year if tax returns are not yet due;
(B) information for the current calendar year for all income sources, including year-to-date pay stubs, salaries, wages, commissions, bonuses, self-employment income, dividends, severance pay, pensions, interest, trust income, income from businesses and properties, annuities, capital gains, social security benefits, worker’s compensation benefits, unemployment insurance benefits, disability insurance benefits, recurring gifts, prizes, and spousal maintenance;
(C) proof of court-ordered child support and spousal maintenance actually being paid by the party in any case other than the one in which disclosure is being provided;
(D) proof of all medical, dental, and vision insurance premiums paid by the party for any child listed or referenced in the petition;
(E) proof of any child care expenses paid by the party for any child listed or referenced in the petition;
(F) proof of any expenses paid by the party for private or special schools or other particular education needs of a child listed or referenced in the petition; and
(G) proof of any expenses paid by the party for the special needs of a gifted child or a child with a disability who is listed or referenced in the petition.
See Rule 49(e), ARFLP.
Spousal Maintenance and Attorney Fees and Costs
If either party has requested an award of spousal maintenance or an award of attorney fees and costs, the following documents must be served on the other party with the initial disclosure:
(1) a completed AFI substantially in the form set forth in Form 2, Rule 97; and
(2) the documents and information described in subpart (e)(2).
See Rule 49(f), ARFLP.
Unless there is no property at issue in the case or the parties have entered into a written agreement disposing of every property issue, the following documents must be served on the other party with the initial disclosure:
(1) copies of deeds, deeds of trust, purchase agreements, escrow documents, settlement sheets, and all other documents that disclose the ownership, legal description, purchase price and encumbrances of all real property owned by any party;
(2) copies of all monthly or periodic bank, checking, savings, brokerage, and security account statements and all electronically stored information concerning such accounts in which any party has or had an interest for a period beginning 6 months before the petition’s filing and through the disclosure date;
(3) copies of all monthly or periodic statements and documents showing the value of all pension, retirement, stock option (reflecting grant date, vesting, exercise price and prior exercises), and annuity balances, including Individual Retirement Accounts, 401(k) accounts, and all other retirement and employee benefits and accounts in which any party has or had an interest for a period beginning 6 months before the petition’s filing and through the disclosure date, and, if a claim for premarital accumulation is made as to a defined contribution plan, copies of all monthly or periodic statements and documents showing values, contributions, withdrawals, loans, earnings and losses from the date of marriage to the disclosure date, or if no monthly or quarterly statements are available during these time periods, the most recent statements or documents that disclose the information;
(4) copies of all monthly or periodic statements and documents showing the cash surrender value, face value, and premiums charged for all life insurance policies in which any party has an interest for a period beginning 6 months before the petition’s filing and through the disclosure date, or, if no monthly or quarterly statements are available for this time period, the most recent statements or documents that disclose the information;
(5) copies of all documents and all electronically stored information that may assist in identifying or valuing any item of real or personal property in which any party has or had an interest for a period beginning 6 months before the petition’s filing and through the disclosure date, including any documents that the party may rely on in placing a value on any item of real or personal property;
(6) copies of all business tax returns, balance sheets, profit and loss statements, and all documents and all electronically stored information that may assist in identifying or valuing any business or business interest for the last 5 completed calendar or fiscal years and through the latest available date before the disclosure statement with respect to any business or entity in which any party has an interest or had an interest for a period beginning 5 years before the petition’s filing through the disclosure date;
(7) copies of all documents related to any trust in which the party has a beneficial interest; and
(8) a list of all items of personal property, including, but not limited to, household furniture, furnishings, antiques, artwork, vehicles, jewelry, and similar items in which any party has an interest, together with the party’s estimate of current fair market value (not replacement value) for each item.
See Rule 49(g), ARFLP.
Unless the parties have entered into a written agreement disposing of all debt issues in the case, the following documents must be served with the initial disclosure:
(1) copies of all monthly or periodic statements and documents and all electronically stored information showing the balances owing on all mortgages, notes, liens, and encumbrances outstanding against all real property and personal property in which the party has or had an interest for a period beginning 11 months before the petition’s filing and through the disclosure date, or if no monthly or quarterly statements or electronically stored information are available during this time period, the most recent statements or documents or electronically stored information that disclose the information; and
(2) copies of credit card statements and debt statements for all months for a period beginning 11 months before the petition’s filing and through the disclosure date.
See Rule 49(h), ARFLP.
Disclosure of Witnesses
Each party must disclose the names, addresses, and telephone numbers of any witness whom the disclosing party expects to call at trial, along with a statement fairly describing the substance of each witness’s expected testimony. The court may not allow a party to call witnesses whom the party did not disclose at least 60 days before trial or by a different deadline ordered by the court.
See Rule 49(i), ARFLP.
Disclosure of Expert Witnesses
Each party must disclose the name, address and telephone number of any person the party expects to call as an expert witness at trial. The party also must disclose the subject matter on which the expert will testify, the substance of the facts and opinions on which the expert will testify, a summary of the grounds for each opinion, the expert’s qualifications, and the name and address of any custodian of reports the expert prepared. The court may not allow a party to call an expert witness whom the party did not disclose at least 60 days before trial or by a different deadline ordered by the court.
See Rule 49(j), ARFLP.
How Do I Submit Disclosures
Disclosures are submitted in Disclosure Statements. Disclosure Statements help to keep information organized and record what was disclosed and when it was disclosed. As the rule continually references, the documents and information must be served on the other parties. But, that does not necessarily mean that a process server needs to deliver the documents as may have been the case with the initial Petition. Instead, Rule 43 Service of Other Documents After Service of Summons, Petition, and Order to Appear, usually applies to the disclosure statement and accompanying documents being mailed or hand-delivered to the other parties or their attorney. But—with the exception of the Affidavit of Financial Information—the disclosure statements and their accompanying documents are not filed with the court. There may be an exception if someone intends to use the disclosure statement as evidence. Disclosure, Disclosure Statements, what is and isn’t filed with the court, and evidence at a hearing can get confusing. Hence, it is important to discuss these issues with an experienced family law attorney to ensure you comply with the rules and your evidence is available for the court to review.
Maricopa County Superior Court Law Library Resource Center provides a sample Information and Instructions for Completing the “Disclosure Statement” for unrepresented parties. The disclosure statements your attorney prepares, or you receive from an attorney, will likely look a bit different. Each firm has its own method and forms for disclosure statements, primarily based on its internal office procedures. It will usually be on the firm’s pleading templates; some will be very detailed while others will not. Some disclosure statements will be based only on that specific disclosure, while others will be continuous and reference previous disclosures.
When To Submit Disclosure
Unless the parties agree in writing or the court orders otherwise, initial disclosures under Rule 49 subsections (d) through (k) are due within 40 days after the first responsive pleading to the Petition is filed. Forty days seems like a lot of time but do not wait until the last minute to start this process. Also, typically, the sooner the initial disclosure process is complete, the sooner the rest of the case can move forward, as we discuss in more detail later in this article.
While the initial disclosures are required in the timeframe described above, in Arizona family law, the duty of disclosure is a continuing duty. Each party must provide additional, amended, or supplemental disclosure statements when new or additional information is discovered or revealed to the party. Further, Rule 49(b)(2)(B) states: “A party must serve such additional or amended disclosures in a timely manner, but in no event more than 30 days after the information is discovered by, or revealed to, the disclosing party. If a party obtains or discovers information that the party knows or reasonably should know is relevant to a hearing scheduled to occur in less than 30 days, the party must disclose that information reasonably in advance of the hearing.” See Rule 49(b)(2)(B) ARFLP.
Disclosure is a very important part of a family law case. There can be significant consequences for failure to abide by the rules. These rules can be complex, and application can change depending on the facts of the specific case. It is important to discuss the disclosure duty with an experienced family law attorney to see how it will impact your case.
Consequences for Disclosure Violations
Failure to comply with the disclosure requirements under Rule 49 can significantly impact your case. A party can be sanctioned for failing to obey an order to provide or permit discovery or for failing to comply with a disclosure or discovery rule. Some of the potential sanctions include: dismissing the action, rendering a default judgment, or prohibit the at fault party from presenting information or evidence. Those are just some of the potential sanctions a court could enter for failing to comply with disclosure requirements.
Disclosure and discovery sanctions can have a severe negative impact on a case if the court enters those sanctions. That is why it is important to ensure you are complying with all the rules. An experienced attorney can help guide you through those rules.
Resolution Statement Under Rule 49
Rule 49 requires that each party file a Resolution Statement 30 days after the exchange of initial disclosure or as otherwise ordered by the court. Maricopa County Superior Court Law Library has sample Resolution Statements that can be found in Family Court Forms. Rule 49 requires that a Resolution Statement include any agreements between the parties and a specific detailed position on resolution on all issues in the case. These positions are to be stated without argument in support of the position.
5 Common Problems Under Rule 49, ARFLP
As divorce and family law attorneys, we have seen where issues arise under Rule 49. There are legal issues and arguments that can arise under Rule 49 but that is not what we have identified below. Below, we have identified some more practical issues that can arise under Rule 49.
Disclosure of Documents Doesn’t Mean the Court Has It
The first, and biggest, issue we see in unrepresented parties is needing to fully understand how disclosure is used and what part it plays in litigation. Disclosure of the documents under Rule 49 does not mean that the court has it or can review it as evidence in a hearing. Disclosure and the admission of evidence at a hearing are two different things. These are separate concepts, each with its own specific set of rules, that are connected and intertwined, but they are also independent. Be sure to consult with an experienced attorney to discuss the issues with each so that you do not end up at an evidentiary hearing with none of the evidence you thought was ready to go. Or show up to a hearing having submitted the evidence appropriately to be prohibited from entering the information as evidence at the hearing because you failed to comply with the disclosure requirements.
Organization Is Important for Everyone
Using organized and clear disclosure statements helps avoid unnecessary litigation. Each disclosure statement should identify what was disclosed and when it was disclosed. Organized and clear disclosure will help both parties—and the court if necessary—determine what information was disclosed and whether that information was timely disclosed.
It also helps to keep information quick and easy to access, saving you a lot of time when you draft your settlement letters, mediation memos, pretrial statements, and preparing your exhibits for hearings.
Disclosure Helps Get a Case Moving
Disclosure helps identify what exists in the case. The sooner you know what exists, the sooner you know what claims are available and the strength and weaknesses of your positions. Once you can identify those issues in your case, you can focus on resolving the matter. What makes sense for settlement? What should your positions be at trial, given all of the information you have? Do you need more information? Completing the initial disclosure gets the case moving forward.
Once You Get Started, It Goes By Quicker Than We Think
The amount of information can be overwhelming at first, but once you set aside time and focus on collecting the documents, it goes by much quicker than you think. Much of the required information is available online through customer portals or on government websites.
But do not delay in beginning the process. Yes, usually, with focused effort, the information can be gathered relatively quickly. But there are plenty of times when people hit a roadblock and need to submit formal requests for information through employers or get records from a CPA they haven’t used in a couple years. Often, the people who delay beginning the data collection process run into unforeseen issues and hurdles in getting the information. Also, remember that once you provide the information to your attorney, it takes some time for the attorney’s office to prepare it for disclosure to the other side. So, it usually doesn’t take long to get the information, but get started early.
Your Attorney Can Tell You Where to Get the Information
Some of the information required for disclosure isn’t a daily need for most people. It is common for people not to know where to gather some of this information. That is ok. Ask your attorney, and they can direct you to where to start or where other clients have gone to gather the information. Remember, we are here to help you through this. If you need help or guidance, let us know.