Divorce is one of the five major stressors that a person can experience. Regardless of the reasons for the divorce, each party goes through a range of complex emotions when there is a breakdown of the marriage. I have many years of experience helping people through the process. Below you will find answers to some of the questions/concerns clients have shared with me. If you have additional questions, I invite you to contact me at (810) 534-4055.
This is a basic explanation, each case is unique and can vary significantly from this description.
How can I get a divorce in Michigan?
First, you or your spouse must be a Michigan resident. Either you or your spouse must have lived in Michigan for at least six months before you file. And, your case must be filed in the county where you or your spouse have lived for at least ten days.
Second, Michigan is a “no-fault” divorce state meaning that you don’t have to have a specific reason such as adultery, abandonment, or abuse to get a divorce. The only legal ground or reason for a divorce in Michigan is that “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 the marriage can be preserved.” It is sufficient to state that you would not continue living together as husband and wife if the judge did not grant you a divorce.
Even though Michigan doesn’t require “fault” to obtain a divorce, a spouse’s behavior can be considered by the Judge if you and your spouse can’t decide on custody of the children, the division of property, or spousal support.
How can I protect myself?
I often explain to clients that the more you know about the marital finances the better. Try to become acquainted with how much is owed and to whom. Become familiar with how much money or other assets you or your spouse own, whether in joint or separate accounts. Don’t be self-critical, if you have not paid attention to these details during the marriage, it is not uncommon that one person handled the finances and the other party did not. I also recommend:
- Get a credit report. Make sure that you are aware of all of the debts that are listed under your name or social security number.
- Create a list of the assets and debts that you believe exist. Even if you don’t know the name of the financial institution where an asset or debt is located; list it for your attorney to find out.
- Check your credit cards for fraudulent use.
- Check your financial institutions for recent activity. Make sure you were aware of and approved the transactions. See if they will place a “freeze” on the accounts.
- Think about ways your spouse could cause you financial distress and then discuss it with your attorney. Your attorney may want to seek court orders to protect you.
- Develop a budget. It is helpful to have two budgets, one for the expenses incurred during the marriage and a second anticipated budget for when you are no longer living as a married couple. It is especially helpful if you can document the expenses included in your budget.
What is the procedure for divorce?
Starting the divorce
A divorce case is started by filing a summons and complaint together with a complaint for divorce in the circuit court in the county where either you or your spouse reside. The complaint is a document that is signed by the plaintiff and identifies the parties, the children, the property, the debt, when the parties were married, and states that the marriage has broken down and asks that the court grant the divorce. The complaint may also request temporary orders establishing child custody, parenting time, child support, spousal support or an order protecting property. A copy of the complaint is served on your spouse. This can be accomplished in a number of ways. By having a process server hand the papers directly to your spouse, by certified mail, or having your spouse come to my office and sign the Acknowledgment of Service. Whichever method is chosen, the defendant will be treated with respect.
The defendant then should file an answer to the complaint responding paragraph by paragraph, indicating which items are in agreement and which items will need more discussion to resolve. I often assist clients with this process.
What is the waiting period?
If there are minor children, the waiting period is six months before the judgment of divorce can be entered. If there are no children, the waiting period is two months. The court has the authority to shorten the six month waiting period if there is compelling reason and all outstanding issues have been resolved. Judges try to have cases with minor children resolved either by settlement or trial within one year of filing.
Interim Orders
Most courts do not interfere in the parties’ lives. If the parties can coexist peacefully, the court will expect that the parties are working toward a settlement and will be ready to resolve their case in a timely manner. Sometimes, during the waiting period issues arise that need to be resolved such as:
- Temporary custody of the children,
- Temporary child support,
- Temporary spousal support if appropriate,
- Temporary parenting time,
- Where and with whom the children will live,
- How the bills will be paid, and
- Who will keep and maintain the property while the divorce is pending.
If you and your spouse can come to an agreement, with or without the assistance of attorneys, a stipulated order covering all the issues can be brought to the court and, if the judge approves, it will be signed and entered with the court. If the parties don’t agree, the judge will listen to their testimony and make the decision for them.
What happens next?
The court will set dates for the parties and their attorneys, if any, to appear in person for a pre-trial conference and settlement conference. Some courts set these dates immediately upon filing the Summons and Complaint. The pre-trial conference sets the dates and deadlines for the case and narrows the issues that need to be settled. If there are minor children, and the parties cannot agree, the matters of custody, parenting time and child support can be referred to the Friend of the Court (FOC), which will set a meeting time for the parents to come in and resolve these issues, if possible. The FOC can also conduct an investigation and make a recommendation to the parties and the court on what they believe would best serve the minor children’s interests. The “best interest of the children” is defined by looking at the following factors:
a) The love, affection, and other emotional ties existing between the parties involved and the
child.
b) The capacity and disposition of the parties involved to give the child love, affection, and
guidance and to continue the education and raising of the child is his or her religion or creed, if
any.
c) The capacity and disposition of the parties involved to provide the child with food,
clothing, medical care or other remedial care recognized and permitted under the laws of this
state in place of medical care, and other material needs.
d) The length of time the child has lived in a stable, satisfactory environment, and the
desirability of maintaining continuity.
e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
f) The moral fitness of the parties involved.
g) The mental and physical health of the parties involved.
h) The home, school, and community record of the child.
i) The reasonable preference of the child, if the court considers the child to be of sufficient
age to express preference.
j) The willingness and ability of each of the parties to facilitate and encourage a close and
continuing parent-child relationship between the child and the other parent or the child and the
parents.
k) Domestic violence, regardless of whether the violence was directed against or witnessed
by the child.
l) Any other factor considered by the court to be relevant to a particular child custody
dispute.
Child support is calculated using the Michigan Child Support Formula. I use the same computer program as the FOC. I enter the income of both parties; the number of overnights for the parties, and any other relevant information and the program determines the support amount. This figure is the one that will usually be used by the court, however, there are exceptions, which we can discuss. It is important that you hire an attorney with experience in correctly calculating child support.
If the parties can’t agree on the recommendations of the FOC, the matter is set for a hearing before a Referee. This is a more formal hearing where testimony is taken and a recording made. After the hearing, the Referee will present a proposed order to the court. If both parties agree with the order, it is signed by the Judge and entered into the file. If the parties still can’t agree, the matter can be set for mediation, arbitration or a trial before the Judge. I will assist you with each of these procedures. While I believe that most divorces can be settled by you and your spouse before a trial, I am an effective mediator if mediation is used and a strong litigator if trial is necessary.
What about our property?
The basic theory under Michigan Family Law is that each spouse should receive approximately 50% of the net worth of the marital estate. The marital estate is the combination of all the assets and liabilities accumulated during the marriage. That includes:
- Real estate
Pensions
401K’s
IRA’s
Investment accounts
Personal property
Credit card debt, mortgages, car loans, etc.
Title is not necessarily dispositive. What is important is to make sure that all assets and debts are appropriately accounted for. There are some special situations that can cause the court to vary from this basic tenant, which I would be happy to discuss with you. The court considers the following when dividing the marital estate:
- The source of the property.
- Length of the marriage.
- Ages of the parties
- Health of the parties.
- Needs of the parties.
- Needs of the children.
- Earning power of the parties.
- The source of the property.
- Contributions to the marital estate.
- Cause of the divorce, including fault.
- Any other factor the court considers relevant.
How is a divorce settled?
By default judgment: If your spouse does not file an answer, a default judgment of divorce can be presented to the court for signing. A default judgment is the same as a divorce decree, itemizing all the terms of your divorce. Your terms would be everything you originally listed in your complaint; you generally can’t list anything new at this point. As long as your terms comply with Michigan’s laws, you’ll next appear in court, and a judge will sign your judgment. This turns it into a court order that becomes your final divorce decree.
By a negotiated judgment: When you and your spouse agree on everything and set the terms of the divorce, the judgment of divorce will include those terms and be signed by the judge.
By mediated agreement: Mediation is a way to settle your divorce short of a trial. The parties pick a third party—usually another attorney—to try to help them settle the case. Both parties will propose a settlement with a mediation summary. The mediator will meet with the parties and their attorneys and try to encourage the parties to negotiate and settle. If settlement is possible, the terms will be included in the judgment of divorce. If, on the other hand, you and your spouse can’t agree, the mediator will prepare an opinion on how it should be settled. I have participated as mediator and been with my clients in mediation. Mediation is used often because it is effective and less expensive than going to trial.
By arbitrated agreement: Arbitration is similar to mediation except that, as agreed to by the parties, it is binding. The parties usually decide on this choice because it takes less time and money than a trial. The arbitrator is an attorney or a retired judge. The arbitrator will write an opinion covering all the issues in the case. His opinion will be the basis for the terms contained in the judgment of divorce.
By trial: If the parties can’t reach a settlement, the Court will schedule a trial. The parties and their attorneys must appear, testimony is taken, and evidence is presented in support of their positions. At the conclusion of the Trial, the Family Court Judge will render an Opinion on the disputed issues. One of the attorneys will use the Judge’s opinion to write the Judgment of Divorce, which, once signed by the Judge, dissolves the marriage and becomes your divorce decree. Whatever method is selected, my intent is to settle your case peacefully and politely; if that is not successful, we will take a more aggressive approach. I have successfully helped clients in each of these methods in resolving their divorce case.
Divorce is an extremely stressful event. If you are considering a divorce, it is advisable to talk to a lawyer to understand and protect your rights. I have helped people with their Family Law problems for more than 20 years. It would be my honor to assist you. Click here to contact me.
