Divorce

Divorce Procedure

The first step in initiating a divorce is meeting with your attorney to prepare a complaint for divorce as well as several other pleadings and documents that are required to be included in your initial filing. After the complaint and all other necessary documents are filed and served, the defendant may file an answer to the complaint, which is a paragraph-by-paragraph response to the complaint. Once the answer is filed, the case is contested. If no answer is filed by the defendant, an order of default is entered, indicating the defendant’s lack of response. The matter becomes an uncontested divorce case. If the case is contested, the defendant may not only answer the complaint but also file his or her own counterclaim. The plaintiff must answer the counterclaim.

The plaintiff is the party who starts the lawsuit. The defendant is the person against whom the suit is filed. The divorce is resolved by the family division of the circuit court. The office of the Friend of the Court makes recommendations for spousal support, child support, custody, and parenting time. This office also collects and distributes the spousal and child support payments. It may also request the enforcement of court orders dealing with child and spousal support as well as parenting time. The court may use the Friend of the Court for other miscellaneous duties, including a recommendation on property distribution.

A divorce may not be granted in less than 60 days. When there are minor children, the parties must wait six months. However, the six-month period may be waived under certain circumstances. No divorce is granted without a court hearing to determine the truth of the statements made in the complaint.

Temporary orders for custody, child and spousal support, mortgage payments, medical payments, parenting time, injunctions, and other relief may be requested at any time after your case is started and before a judgment of divorce is entered. A temporary injunction may restrain a party from doing something. There are also injunctions dealing with violence, called personal protection orders (PPOs). Other injunctions may restrain a party from selling, disposing of, or dissipating assets. Other types of injunctions may be requested.

The court may also award temporary fees to assist a party with his or her costs of obtaining legal services. This is usually obtained in the same way as any other motion. Sometimes it may be part of a motion requesting other relief.

While Your Divorce Is Pending

This period is usually spent defining the issues and trying to resolve them. Your attorney will also attempt to find the net worth of the parties and the general financial status of the family. A verified financial statement or interrogatories may be sent out requiring answers under oath from the recipient. Complete financial data is usually requested. Depositions may be taken (with the consent of the client) to obtain further information from the other spouse or those who have the needed information. Appraisers, actuaries (if pensions are involved), accountants, or behavioral professionals may be used (with the client’s prior consent). You and your attorney, after the discovery work has been completed, will set final goals you wish to obtain. This will not be done hastily, and you will be given an opportunity to study the proposed settlement. Your attorney will advise you on the likelihood of acceptance of your proposals or what a court may do.

Property Division

The parties usually arrive at a settlement of all their property rights after negotiation or after mediation. If settlement is not reached, the matter will be decided by the court after the trial is concluded. The court must divide the marital property "equitably." This does not necessarily mean "equally." Although Michigan is a no-fault divorce state, a party's fault in the breakdown of the marriage may be considered in the court making an unequal division of assets.

If a settlement is reached, you are advised that you must be absolutely sure that you understand and accept the settlement as written or placed on the record in open court, because property settlements may not be modified, except in cases of fraud, clerical error, mistake, or gross unfairness in the initial trial. If your property includes retirement or pension plans, your attorney, on request, will explain your rights under the qualified domestic relations order procedures.

Please be mindful that division of the marital estate can have major financial consequences for both parties and it might be advised that you work with a financial planner in conjunction with your attorney. Generally speaking, both parties to a long term marriage will have to adjust their lifestyle post-divorce. This is especially true if the parties were not on good financial footing before divorce.

Spousal Support

Spousal support, also called alimony, is a sum of money usually paid by one spouse to another spouse for the support and maintenance of the spouse. Unlike child support, there is no specific formula for calculating spousal support. Instead, the courts must look at a variety of factors a may consider the amounts determined by prognostication software. The factors the court considers in awarding spousal support are as follows:

the past relations and conduct of the parties (fault);
the length of the marriage;
the ability of the parties to work and their respective incomes;
the source and amount of property awarded to the parties;
the ability of the parties to pay spousal support;
the present situation of the parties;
the needs of the parties;
the health of the parties;
the prior standard of living of the parties and whether either is responsible for the support of others;
the age and educational level of the person claiming spousal support.

Generally judgments of divorce in which spousal support is not granted must either expressly reserve the question of spousal support or rule that neither party is entitled to spousal support.Regular or periodic spousal support clauses in the judgment of divorce are modifiable at any time. When limitations are placed in the judgment regarding modification, specific language is necessary to try and ensure that the court will honor these limitations. Spousal support may be increased, decreased, or canceled. A modification is based on a showing of a change in circumstances that warrants a modification.

Spousal support is usually paid through the Michigan State Disbursement Unit (MiSDU). This enables a party to obtain an accurate record of these payments. It also makes it easier to request assistance from the Friend of the Court if payments are not forthcoming or a spouse denies receiving payments.

Child Support

Child support is based on the Child Support Formula Manual (the “Guidelines”), which is primarily a function of the parties' respective incomes and the number of overnights each parent has with the child. This support is usually ordered until the child attains the age of 18 years or until the child graduates from high school so long as the minor child has not yet reached 19 years and 6 months and regularly attends high school full time with a reasonable expectation of completing sufficient credits to graduate from high school while residing full time with the payee of support or at an institution. The amount of child support is modifiable if there is a change of income or other circumstances.

Every child support order paid through the MiSDU now provides for the immediate and automatic withholding of child support payments from any source of the payer’s income unless the court orders otherwise or approves an agreement by the parties.Nonpayment of court-ordered support may lead to a contempt of court citation, resulting in a jail term or a suspension of the delinquent parent’s occupational or driver’s license.

Child Custody

This issue is the most emotional and traumatic part of most divorce cases. There is legal custody—the decision-making part of raising the child—and physical custody—who physically raises the child. Sole or joint custody is possible for both of these types of custody. The basis for determining child custody is “the best interests of the child.” Due to the extensive nature of custody disputes and the laws involved, this subject is best left to an in-depth discussion with your attorney.

A court must decided custody by considering and weighting all of the following factors:

The love, affection, and other emotional ties existing between the parties involved and the child.
The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the education and raising of the child in its religion or creed, if any.
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 the medical care, and other material needs.
The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
The permanence, as a family unit, of the existing or proposed custodial home or homes.
The moral fitness of the parties involved.
The mental and physical health of the parties involved.
The home, school, and community record of the child.
The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
Any other factor considered by the court to be relevant to a particular child custody dispute.

Child custody orders are modifiable. However, there must be a change in circumstances or good cause for custody to be reconsidered. If this threshold is met, the court will determine if the child has an established custodial environment with one or both parents. If the court determines that there is no established custodial environment with the moving party, then he or she must prove that the requested change in custody is in the best interest of the child by clear and convincing evidence. Otherwise, the burden of proof is by a preponderance of the evidence.

Parenting Time

Parenting time is the schedule by which the children spend time with their parents. The judgment may order general parenting time, leaving it up to the parties to decide the dates; or it may provide specific parenting time hours and dates. If long distances must be traveled to exercise this parenting time, arrangements may be made to share the cost. Parenting time rights may be enforced in the same manner as rights to child support. Judgments of divorce provide that the minor child may not be permanently removed from the jurisdiction of the court without the court’s approval. To move with the child from Michigan, the custodial parent must petition the court for an order. You may not move more than 100 miles (radial miles) in state from where the child resided when the divorce suit started, even if you do not have physical custody of the child, without court approval. There is also a provision in the law for the makeup of parenting time that has been wrongfully denied and for a contempt of court action against the offending parent that can lead to a fine or jail. Failure to pay child support is not an acceptable reason to deny parenting time. Parenting time orders may be modified on a showing of a change in circumstances.

Image courtesy of David Castillo Dominici at FreeDigitalPhotos.net