Although every case is different, there are some common questions that people have as they face divorce proceedings. This section will answer general questions commonly asked about divorce proceedings. Remember, this is intended as general information. Advice and information specific to your case can only be provided once you and I have consulted about the specific facts of your marriage.
Michigan is known as a “no-fault” divorce state. This means that anyone can file for a divorce for any reason or for no reason at all. Fault is not a factor that the court relies upon in granting a divorce. In the words of the statute, the court has jurisdiction to grant a divorce if “there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”
The words “no-fault” may be misleading, though. Fault is not a factor if the parties agree upon a final settlement of all issues. However, fault may factor into a court’s decision if there is a dispute as to alimony, property, support, visitation, or custody. That is the reason I will want to know about any extra-marital relationships that either party has had, or problems like gambling, criminal activity, etc.
There is no such thing as a “legal separation” in Michigan. However, Separate Maintenance actions are allowed in Michigan, although these are rarely sought. The procedure is virtually the same as that of a divorce.
The court will decide custody and support issues and will also divide the marital property between the parties. But neither party may remarry. If one of the parties wants a divorce rather than separate maintenance, the court will convert the case as a divorce matter.
Separate Maintenance is generally utilized by parties who do not want a divorce for religious reasons, or where one party needs continuing medical care that s/he will lose if a divorce judgment is entered.
Michigan law does allow annulments, which invalidate a marriage. These, too, are quite rare. A marriage may be void from the inception or voidable. Grounds for an annulment may be the fact that a marriage has not been consummated, and also include incapacity to marry such as insanity, bigamy, under age, or any type of fraud. Annulment is not available where the parties continue to cohabit.
Whether you would qualify for an annulment would require legal analysis based on the specific facts of your case.
All divorce have some common elements. This may include filing of the following documents:
Summons. This document notifies the other spouse that he or she is being sued and has 21 days (28 days if served by mail) to respond. If the other party doesn’t respond, a default may be taken.
Complaint. The complaint states the names of the parties, where, when, and by whom they were married, names and birthdays of any minor children, wife’s and husband’s name before marriage, length of residence in county and state, date of separation, grounds for divorce, a statement as to property and debts, and the relief requested. Michigan law mandates that a party must reside in Michigan for 180 days and in the county where suit is started for at least 10 days prior to the date of filing.
Affidavit of Service and Return of Service is filed when service is made.
Uniform Child Custody Jurisdiction Enforcement Act Affidavit. This document alerts the court about where the children have resided in the past five (5) years and that no custody action is pending regarding the children. In order to have jurisdiction to award custody, the children must have resided in the state for at least the past six (6) months.
Verified Statement to the Friend of the Court. This document informs the Friend of the Court of the essential facts such as names, addresses, employers, incomes, social security numbers, etc. If the parties will elect to “opt-out” of the FOC system, this is not required, but a motion must be filed.
Record of Divorce. This is a statistical record required by the state.
Ex Parte Orders. When a divorce is filed, a status quo order is sometimes requested to ensure the children’s residence is not changed prior to entry of a temporary custody, parenting time, and support order. A temporary injunction or order may also be requested to restrain both parties from selling, disposing or dissipating assets. Other types of injunctions may be requested.
Fees and costs. At the time of this writing (May, 2013) the filing fee for a divorce without minor children is $150. If there are children, the filing fee is $230. Other costs may be incurred during the proceedings, including the cost of serving papers and motion fees, which are $20 during the divorce proceedings but can be higher if you come back to court after entry of Judgment regarding custody, parenting time or support. If your divorce is contested, you may also incur other costs for such things as appraisals of assets, expert witness fees, transcript costs for depositions, etc. My Attorney-Client fee agreement currently provides that I must obtain my client’s express consent to incur any cost exceeding $25, excepting the initial filing fee and the cost of serving court papers on the other side.
Motions. Sometimes in the course of a divorce, I may have to go to court to get your spouse to cooperate with discovery or to enforce the terms of a temporary order. A Motion is filed with the court for some type of relief. A Notice of Hearing advises when and where a hearing will be held.
The Plaintiff is the party who files the lawsuit and the Defendant is the person against whom the case is started. Each county has an office of the Friend of the Court. Their job is to assist the Court. The FOC usually investigates the incomes and circumstances of the parties and makes recommendations about alimony, support, custody, and visitation rights. They also collect and distribute alimony and support payments. The FOC may cooperate to seek enforcement of court orders dealing with support, visitation rights, and alimony.
Once the Complaint and Summons is served, the Defendant must file an answer to the Complaint. If service is made in person, the Defendant has 21 days to respond. If service is made by mail, he or she will have 28 days to respond. I, as your attorney, may extend the deadline. An answer to the lawsuit is, in effect, a response to each paragraph of the Complaint.
Once the answer is filed, the case is contested. If the Defendant fails to respond, an order of default is entered and the matter becomes an uncontested divorce case. Sometimes the Defendant may not only answer the Complaint, but may also file a Counter Claim. If that occurs, then the Counter Claim must be answered by the Plaintiff in a timely fashion.
Michigan law compels the parties to wait at least 60 days before the Judgment of Divorce is granted, but if there are minor children then the waiting period is 6 months. In the counties where I practice, the judges will frequently waive the 6-month period if a proper showing is made that waiting six months will be a hardship.
The final step to the divorce is the Plaintiff appearing before the judge and testifying that there has, indeed, been a breakdown in the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. The judge must have this testimony before the final judgment of divorce can be signed.
Temporary orders for child custody, child support, spousal support, parenting time, to protect the status quo — i.e., provide for mortgage payments, insurance coverage, medical payments — and for other relief may be requested at any time after your case is started and before a judgment of divorce is entered. A temporary restraining order may also be requested by either party involved in a divorce to restrain a party from doing harm to person, property, or assets.
Cases involving the custody of minor children can be the most emotionally difficult part of a divorce. Unless the parties can agree, the court will decide which parent should be awarded legal custody (the decision-making part of raising the child) and/or physical custody (who physically raises the child).
Michigan courts use a strict formula to determine the amount of child support based on a statute enacted by the state legislature. This formula considers the income of both the custodial and non-custodial parent, the number of overnights the child(ren) spend with each parent, and whether a parent has other children to support. The income of a new spouse is not considered.
Yes, depending on the facts of the case. Unlike child support, alimony (also called spousal support) is not mandatory and is in the discretion of the judge. Spousal support is an amount of money paid by one party in a divorce to the other for his or her support and maintenance. There are many factors the court may consider in determining the amount of spousal support and the time period during which it should be paid.
Michigan is an equitable distribution state, not a community property state. Normally, property will be divided on a roughly equal basis. This means each spouse will receive about 50% of the total value of the marital estate, but not necessarily 50% of each asset.
Even though fault has nothing to do with whether a party may obtain a divorce, the court may consider the fault of a party when dividing the property. This could shift a division from 50-50 to 60-40 or some other percentage by considering fault. Michigan judges have broad discretion in this regard and it is not always possible to predict the outcome.
This is one reason why mediation can help the parties achieve a fair result by remaining in control of the decisions on how property will be divided. Property that a party owned prior to the marriage, absent special facts, is usually considered separate property. A court has to find need or contribution to the acquisition, improvement, or appreciation of separate property in order to invade those assets and award a portion to the other spouse.
Certain provisions of Michigan judgments of divorce can be modified at any time. Those are: child support, spousal support, child custody and parenting time (visitation) clauses. The grounds for modification is normally a change in circumstances, but for custody and parenting time provisions, “good cause” is also grounds for modification. Support payments may be increased, decreased, or eliminated. The court retains jurisdiction to modify both physical and legal child custody and parenting time. Modifications are not lightly made, and must be grounded upon a change in circumstances or good cause that is substantial.
Prenuptial agreements are becoming commonplace in Michigan as many people are entering into second (and third) marriages. Once people have been through a divorce, they often want to protect their separate assets, particularly if they have children from their first marriage.
There are strict requirements in order to make these agreements enforceable. For example, if you spring a prenuptial agreement on your intended the day before the wedding, it may not withstand muster if later challenged in court.
Given the strict formalities for creating an enforceable prenuptial agreement, it is important to have the contract drafted by an attorney who has a successful track record in writing enforceable agreements. Post-nuptial agreements (entered into after the marriage) are even more technically challenging and must be expertly drafted to stand up in court.
To schedule an initial meeting with divorce lawyer Laurel Stuart-Fink or just ask a question, call (248) 626-5450 or send an e-mail today.