Introduction

Although every case is different, there are some common questions that people have as they face divorce and custody proceedings. This article is intended to answer questions commonly asked about divorce proceedings. Your specific situation may be somewhat different from the norm, however.       

Divorce is never an easy experience, and this is more true if you are not in agreement with your spouse about ending your marriage. One of the things that seems to help clients through what may be a traumatic experience is some knowledge about what might happen next and about how friend of the court referees and judges will resolve contested issues. Your attorney or attorneys are not psychologists or social workers, but they’ve probably dealt with the emotional issues you’re facing over the course of many years. Don’t be afraid to ask questions if you don’t understand the process. The best solutions for problems you and your spouse are facing in the dissolution of your marriage are the ones that you can agree upon. If agreements aren’t possible, then your attorneys will attempt to help you resolve the issues.

Your attorney’s representation depends upon your input. You need to provide your attorney with facts and documents pertaining to your case. You also need to discuss your ideas and your wishes about how the issues are to be resolved. Everything that you tell your attorney is confidential. It is very important that you tell your attorney the truth. If you withhold information, it might adversely affect your case. Even facts that are “bad” – or embarrassing – should be disclosed so that your attorney may help you make the best decisions.

Your case will never be settled without your express input and consent. Your attorney will counsel you and advise you throughout the process. Most cases settle without going to trial. This means that most clients, through their lawyers, come to an agreement that is either put in writing and signed by both parties or is put on the record in open court. This agreement is then incorporated into a “Judgment of Divorce.” Do not, however, feel that you must agree to something that you don’t understand or that you don’t feel is fair. Talk proposals for settlement over with your attorney so that you can make a decision about accepting the proposed settlement or making a counter-offer. Once an agreement is finalized, the opportunity to set it aside is either very, very difficult or impossible.

Your attorney’s role is to give you advice and information, especially to relate your particular set of facts to the law that a referee or judge would rely upon in resolving the issues if you were to go to trial. Your lawyer’s role is also to help you look at options and alternatives that you might have, to guide you through the process, and to cooperate with you in your attempt to get the bets possible results.

“No-fault Divorce”

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 “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 if 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 your attorney will want to know about any extra-marital relationships that either party has had.

Separate Maintenance actions are also allowed in Michigan, although these are rare. The procedure is about 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 consider the case as a divorce matter.

Michigan law also allows annulments, which invalidate a marriage. These, too, are relatively rare. 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.

Divorce Procedure

All divorce have some common elements. This may include filing of the following documents:

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. 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 (in some jurisdictions a Praecipe must be filed with the answer).  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. Sometimes the 6-month period may be waived if your attorney makes a proper showing of good cause why the waiting period should be waived, but this rarely occurs. The court requires a “pro confesso” hearing before granting the divorce, which means that a witness testifies that the facts set forth in the Complaint are true. A witness is not necessary if the matter is uncontested when heard by the Court.

Temporary Orders.

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.

Child Custody

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).

Child Support

Michigan courts use a strict formula to determine the amount of child support. This formula considers the income of both the custodial and non-custodial parent and whether a parent has other children to support. The income of a new spouse is not considered.

Spousal Support

Spousal support, also called alimony, 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 that the court may consider in determining the amount of  spousal support and the time period during which it should be paid.

Property Settlement

Michigan is an equitable distribution state, not a community property state. Normally, property will be divided 50-50. 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. 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 a party achieve a fair result.  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.

Post-judgment Modifications

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 and Postnuptial Agreements

Prenuptial agreements are becoming commonplace in Michigan as elsewhere. 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. Therefore, it's a good idea no to spring on  by surprise upon your intended spouse just before the wedding. Cohabitation is also becoming far more common today, and cohabitation agreements that are drafted, negotiated, and executed with the same formality as prenups and post-nups can be enforced in Michigan.

To schedule an initial meeting with divorce lawyer Laurel Stuart-Fink or just ask a question, call or send an e-mail today