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About the Author
Donald A. Loose has been practicing law for twenty-five years. In that time, he has counseled thousands of individuals and businesses on almost every area of Arizona law.
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Injunction Against Harassment
"Prevention is better than cure." -- Proverb
An injunction may be issued by a court to prevent a person from committing acts of harassment. "Harassment" means a series of acts over a period of time that are directed at a specific person and that would cause a reasonable person to be seriously alarmed, annoyed or harassed, and the conduct in fact seriously alarms, annoys or harasses the person and serves no legitimate purpose.
To obtain an injunction against harassment, a person must file a verified petition with a magistrate, justice of the peace, or superior court judge. Any court in Arizona may issue or enforce an injunction against harassment. No fee will be charged for filing the petition.
The petition must contain certain information about the party who is filing it (the plaintiff), as well as the party against whom the injunction is sought (the defendant). It must also include a specific statement showing events and dates of the acts constituting the alleged harassment.
The court will review the petition and any evidence offered by the plaintiff to determine whether an injunction against harassment should be issued without a further hearing. If the court finds reasonable evidence of harassment of the plaintiff by the defendant within the past year, it will issue an injunction. The court will also issue an injunction if good cause exists to believe that great or irreparable harm would result to the plaintiff if the injunction is not granted before the defendant or his attorney can be notified (and efforts were made to give notice), or there are reasons why notice should not be given. If the court denies the plaintiffÂ's request, it may schedule a further hearing within 10 days, with notice to the defendant.
If a court issues an injunction against harassment, it may: 1) prohibit the defendant from committing acts of harassment, 2) prevent the defendant from contacting the plaintiff (or other designated persons) and from coming near the residence, place of employment or school of the plaintiff, or other designated locations or persons, and/or 3) grant any other relief that is necessary for the protection of the victim.
A party under an injunction against harassment is entitled to one hearing on written request. The hearing will generally be held within 10 days from the date requested, but it must be held at the earliest possible time. After the hearing, the court may change, terminate or continue the injunction in effect.
An injunction against harassment is an official court order. A person who disobeys the injunction may be arrested and prosecuted for the crime of interfering with judicial proceedings, as well as any other crime which he may have committed in disobeying the injunction.
A copy of the petition and the injunction against harassment must be served on the defendant within one year from the date the injunction is signed. If the injunction is not served within one year, it expires. An injunction against harassment is effective on the defendant the moment it is served on him. It expires one year from the date of service. On request of the plaintiff, the court will forward the injunction against harassment to the proper law enforcement agency for service on the defendant.
A police officer may arrest a person if he has probable cause to believe that the person disobeyed or resisted an injunction, whether or not the violation occurred in the presence of the officer.
Ten Common Misconceptions About Divorce
- The spouse who files for divorce first has an advantage. No. The spouse who files the divorce petition is known as the "petitioner." The other spouse is the "respondent." The petitioner has no substantive advantage over the respondent in the divorce proceedings.
- If my spouse has an affaire, I will be able to use evidence of the affaire in my divorce case. No. Arizona is a no-fault state. This means that evidence of marital misconduct is irrelevant in a divorce case, except to show how the conduct may affect the children for custody purposes.
- If I voluntarily leave the family home while the divorce is pending, I will lose some property or custody rights. No. It is often better for one spouse to set up a separate residence while the divorce is pending. That spouse does not lose any of his or her legal rights by doing so.
- If I get an order of protection, I can prevent my spouse from seeing the children. No. An order of protection does not cover custody or visitation rights. Only the judge in the divorce case can award custody and visitation.
- The judge will prefer the mother over the father in awarding child custody. No. The judge is not allowed to consider a parentÂ's gender when making child custody decisions. The test for child custody is always, what is in the best interests of the children?
- If I am awarded custody, the judge will let me live in the family home with the children until they finish high school. Not usually. The judge may order that the family home be sold and the proceeds divided between the parties. It is often unfair to permit one spouse to live in the home for an extended period of time after the divorce, especially when the other spouse remains obligated on the mortgage.
- If we are awarded joint custody, the children will spend equal time with each of us. Not necessarily. Joint custody does not necessarily mean joint physical custody. In fact, it is uncommon for the court to award equal time-sharing with the children. In most cases, joint custody will allow the parents to participate equally in all major decisions affecting the children, but one parent will be designated as the "primary residential parent" (with whom the children will spend most of their time).
- If we are awarded joint custody, neither of us will be required to pay child support to the other. No. The court will order the payment of child support in joint custody cases, despite the fact that each parent has legal custody of the children. However, because one of the factors used to determine the amount of child support is the actual time spent by each parent with the children, the amount of child support tends to be less in a joint custody case.
- Alimony (spousal maintenance) is awarded to the wife in most divorce cases. No. Spousal maintenance is not awarded in most divorce cases, primarily because each spouse typically is able to support himself or herself without it. Moreover, spousal maintenance can be awarded to either the husband or the wife.
- If an asset is titled in my name, such as a checking account, it will be awarded to me in the divorce. Not necessarily. The court will look at how an asset was acquired to determine whether it is community or separate property. The way in which an account is titled is irrelevant for purposes of this determination. If an asset is acquired during the marriage, except by inheritance or gift, it will generally be deemed community property (see Chapter 30).