The following material is intended to answer some of your questions about divorce proceedings, generally. It is not intended to answer specific questions about your particular case, as each case is different.
The dissolution of a marriage is often a traumatic experience, and your attorney, or attorneys, are well aware of the emotional involvement of the parties. Though we are not mental health professionals, we attempt to relieve your anxiety by assisting in solving the problems which confront you during these proceedings.
In order to properly represent you, it is absolutely necessary for you not only to provide us with all the facts concerning your matter, but we must know your wishes, and we welcome your viewpoints. Withholding information from your attorney may affect the outcome of your case, so we advise you to be completely candid with us. Remember that a confidential relationship exists between attorney and client.
Though we counsel and advise you throughout the entire proceedings, the final decisions regarding your case must be made by you. Our experience has shown that most divorce cases are settled, which means the parties eventually, through their attorneys, reach an agreement which is either placed upon the Court's record or drafted by one of the attorneys for the parties to sign. Never agree to something you do not understand nor something into which you feel you are being forced. Your consent to an agreement must be voluntarily made, after consultation with your attorney. After an agreement is signed or placed upon the Court's records, it is usually impossible to vacate.
Finally, as your representatives, we are here to advise and inform you, cite the options and alternatives available to you, process your divorce matter, assist you in decision-making, and cooperate with you in attempting to obtain the best possible results for you.
Michigan is known as a "no-fault" divorce state; however, the words "no-fault" may be misleading. If the parties reach a final settlement on all issues, fault is usually not a factor. If there is a dispute as to property, spousal or child support, parenting time (formerly called visitation), or custody, fault may become an active ingredient in resolving these issues. That is the reason your attorney may want to go over the history of your marriage with you.
Basically, Michigan has one ground for divorce, which is as follows: "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." In Court, some judges require a detailed showing of the marital breakdown; i.e., that the matrimonial objects have been destroyed and there is no chance for a reconciliation. Most judges require only one brief recitation of the facts or merely an assertion that your marriage is over, and you will never live with your spouse as Husband and Wife.
In Michigan, we have separate maintenance actions, otherwise known as "legal separations," which are less frequently used. The procedure is relatively the same as in a divorce matter, except that neither party may remarry. Further, the law provides that, if one party institutes a separate maintenance suit and the other party files for divorce, the Court will only consider the case as a divorce matter and cannot enter a Judgment of Separate Maintenance.
We also have an annulment proceeding in Michigan, which invalidates a marriage. Marriages may be void (invalid) from the inception, or are voidable depending on the circumstances. The grounds include incapacity to marry such as insanity, bigamy, under age, or any type of fraud that goes to the heart of the marriage. Parties desiring an annulment must not cohabit, after having discovered the impediment to their marriage. If you have any questions about separate maintenance or annulment, please advise us, since the following material basically concerns divorce. However, there may be some similarities with both separate maintenance and annulment actions.
The initial filing of a divorce case may include the following documents:
- Summons. This notifies the other spouse that a suit has been started and he or she has 21 days (28 days if service is made by mail or outside the state) to respond or a default may be taken.
- Complaint. This document states the names of the parties, where, when, and by whom you were married, names and birthdays of children (if any), 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 the relief requested. One of the parties must reside in Michigan for 180 days and in the county where suit is started for at least 10 days in order for the court to have jurisdiction to decide the case.
- Affidavit of Service or Return of Service. One or the other of these documents is filed when service is made.
- Affidavit. This informs the Court as to whether a previous action of divorce between the parties has been filed.
- Verified Statement. This is to inform the Friend of the Court of the essential facts about the parties and the children (not necessary in cases where Friend of the Court services are not required).
- Record of Divorce. This is a statistical record required by the state.
- Injunctions. Only requested where needed to restrain spouse from committing certain acts. Your attorney will explain this procedure to you in detail and ask if you want any type of Injunction. If there has been any violence or threats of violence between you and your spouse, you should make your attorney aware of this fact. In such cases, it is usually recommended that you obtain a Personal Protection Order or "PPO". A separate action is filed for a PPO, and you can obtain it yourself with the assistance of trained court personnel. In this manner, you will be able to lower your attorney fees and have the most control over the conditions of the order. However, you and your attorney will want to coordinate the filing of the divorce and the petition for a PPO.
- Ex Parte Orders. These orders are obtained without the participation of the opposing party and are not frequently used. However, the PPO discussed above is most often granted initially as an Ex Parte order. We view them as more extraordinary relief, such as an injunction. Ex parte orders may sometimes be obtained for temporary custody, support, etc. An objection timely filed to the Ex Parte Order will negate the effectiveness of the Order until a hearing on this matter.
- Affidavit for Ex Parte Order or PPO. A sworn statement that the facts stated in the order to obtain the Ex Parte Order or PPO are true.
- Filing Fee of $100. In addition to the filing fee, there is also the cost of serving papers, motion fees and a Friend of the Court fee of $30 upon entry of Judgment. Later on, there may be other costs for services such as services from appraisers, actuaries, accountants, depositions, etc.
- Notice of Hearing, Motions, and Petitions. Motions and Petitions are pleas to the Court asking it to order the other party to do or not to do something. Notice of Hearing merely advises that a hearing will be held. These documents are used to ask the Court for any relief which may be necessary before your divorce is final.
The Plaintiff is the party who starts the lawsuit and the Defendant is the person against whom the suit if filed. All proceedings in the divorce matter are finally resolved by the Circuit Court in which the case is started. The Friend of the Court is an arm of the Court which is used to assist the Court primarily in cases involving minor children. It usually makes recommendations as to custody and parenting time rights. It also collects and distributes spousal and child support payments. It also may seek enforcement of Court orders dealing with support, parenting time rights, and spousal support. The Court may use the Friend of the Court for other miscellaneous duties.
After the Complaint and Summons are served, the Defendant may file an Answer to the Complaint which is, in effect, a paragraph by paragraph response to the Complaint. Once the Answer is filed, the case is contested. If no action is taken by the Defendant, and an Order of Default is entered, indicating the Defendant's lack of response, the matter becomes an uncontested divorce case. The Defendant may desire not only to answer the Complaint, but desire to file his or her own Complaint. This is known as a Counterclaim and this must be answered by the Plaintiff.
A divorce cannot be granted in less than 60 days. Where there are minor children the parties must wait 6 months. However, the 6-month period may be waived upon a proper showing of extraordinary circumstances, warranting an early divorce. No divorce is granted without a Court hearing as to the truth of the statements made in the Complaint. That testimony is usually given by the Plaintiff.
Temporary orders for custody, spousal and child support, mortgage payments, medical payments, parenting time, injunctions, and other relief may be requested at any time after the time you start your case until a Judgment of Divorce is entered. A temporary injunction restrains a party from doing something. The type of injunction which deals with violence is the PPO, discussed above.
Temporary orders of child support are normally based on recommended guidelines called the Michigan Child Support Guidelines, which are standard across the state. Generally, spousal and child support are based on the needs and ability to pay. The lifestyle of the parties is also taken into consideration. In regard to child custody disputes, you will be advised to study the twelve factors listed in the Child Custody Act. Ask your lawyer for a copy. These factors are enumerated under the section headed "Child Custody."
The Court may also award temporary attorney fees to assist a party with his or her costs of obtaining counsel. The willingness of a judge to make an interim award varies greatly depending upon the judge. Such an award is primarily based upon need. This is usually performed the same way as any other motion and may be part of a motion requesting other relief.
This period is usually spent in defining the issues and trying to resolve them. We also attempt to find out the net worth of the parties and the general financial status of the family. Interrogatories (a list of questions which must be answered under oath from the recipient) may be sent and may, in part, request complete financial data. Depositions (a formal question and answer session in front of a court reporter) may be taken to obtain further information from the other spouse or those that have the needed information. Appraisers, actuaries, accountants or counselors may be used with the client's prior consent. You and your attorney, after the discovery work has been completed, will set the goals you wish to achieve. The attorney will advise you as to the likelihood of obtaining your proposals or what the Court may do.
Before your divorce is finalized, a settlement/pre-trial conference will be scheduled. The purpose of the conference is for the attorneys to review the issues (sometimes in the presence of the judge and sometimes not), determine whether a settlement is possible and, if not, determine the amount of time required for trial and the matters which will be at issue at trial.
If you are unable to settle your case at the time of this conference, some Courts will require that your case go to mediation. This is not the rule currently in Kent County. Court-ordered mediation is different than the type of mediation which your attorney will discuss with you as an alternative to trial. In counties other than Kent, no trial can take place until the mediation has occurred. The mediator will be one or more attorneys in private practice and his/her/their charges will be paid one-half by each of the parties. If the parties cannot agree upon a mediator, person(s) will be appointed by the Court. The mediation proceeding itself will probably take place within six weeks after the pre-trial conference. Your attorney will prepare a written statement setting forth a proposal for settlement. You will participate in the preparation of this document and you may be required to review the document prior to the filing with the mediator(s).
Mediation, or more correctly termed arbitration, that is used in Kent County requires the agreement of the parties that it be used as an alternative dispute resolution method. The mediator/arbitrator will be an attorney agreed upon by both attorneys in the case. Both parties forfeit their rights of trial before the Circuit Court and appeal. Your attorney will prepare a written statement setting forth a proposal for settlement. You will participate in the preparation of this document and you may be required to review the document prior to the filing with the mediator/arbitrator. The mediator/arbitrator is an attorney in private practice in the domestic relations area and his or her charges will be paid one-half by each of the parties.
For both types of mediation, the mediator(s) will often begin the mediation by having both parties and their respective attorneys meet with them. At that time, s/he will ask questions of the parties and the attorneys which s/he may have. S/he will also permit the attorneys to make any statements which they might desire. Usually, at a later point, the mediator(s) will ask the parties to leave the room and wait outside while s/he discusses the matter with the attorneys. At this time s/he will try out different ideas that s/he has for settlement. Thereafter, the mediator(s) may meet with the attorneys and the respective parties separately in an attempt to accomplish a negotiated settlement.
For court-ordered mediation, in the event a negotiated settlement is reached, the mediator(s) will normally attempt to find a judge to hear the matter immediately in the courtroom and place the settlement on the record. At that time the settlement terms will be recited in detail by the attorneys and the parties will state on the record whether they, in fact, agree to those terms. Thereafter, the Defendant and his or her attorneys will normally leave and the testimony of the Plaintiff will be presented to the Court. As soon as the Judgment is prepared by the attorneys and approved by the parties, the Friend of the Court, and the Prosecuting Attorney and the Judge will sign a Judgment of Divorce. This normally takes at least two weeks from the mediation date. The divorce is final upon its being signed by the Judge.
If no settlement is reached, the mediator(s) will file his or her written recommendation with the Court and a copy with each attorney. If either party rejects the recommendation within twenty-one days, the matter will be scheduled for trial. Trial is normally scheduled within two to six months depending upon the complexity of the case and the status of the Court's docket.
For Kent County mediation, the mediator/arbitrator will issue his or her written opinion or recommendation to both attorneys. One attorney will then draft the Judgment of Divorce in accordance with the written opinion.
The Judgment of Divorce is the most important document you will receive. After a settlement is reached or the case is tried, the Judgment of Divorce will be entered by the Court, as your final decree, granting you a divorce. It will also contain clauses dealing with such matters as spousal support, custody, child support, parenting time, insurance, dower rights, property settlement and other miscellaneous clauses. If a settlement has been reached, you must carefully read and examine this Judgment, and have your attorney explain it to you before you sign it.
Spousal support is a sum of money paid by one spouse to the other for the support and maintenance of that spouse. It was formerly called alimony. The factors considered by the Court in awarding spousal support are as follows:
- The past relations and conduct of parties.
- The length of the marriage.
- The ability of the parties to work.
- The source and amount of property awarded to the parties.
- The age of 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.
A Judgment 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. A Judgment silent as to spousal support reserves it.
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, it is questionable whether or not these limitations will be honored by the Court. Recent decisions say these limitations may not be honored. Spousal support may be raised, lowered, or canceled. A modification is based upon a showing of a change in circumstances, which would warrant a modification.
Regular spousal support is usually taxable to the recipient, and is deductible by the payer. The phrase "payment until death" must be referenced as a part of the spousal support clause if it is to be considered as taxable spousal support, even if the parties anticipate termination of support after a certain period of years.
Another type of spousal support, referred to as alimony-in-gross, has all the attributes of a property settlement. It is not taxable to the recipient, it is not deductible by the payer, and it is not modifiable.
There are many tax consequences and restrictions in regard to spousal support and alimony-in-gross, which will be explained to you by your attorney. As tax laws and their interpretation continually change, as well as state laws and their interpretations, your attorney cannot guarantee any tax consequences from your divorce proceedings and the Judgment of Divorce. You will also want to review these issues with your accountant or tax attorney who will be more familiar with your particular tax situation.
Spousal support is usually paid through the office of the Friend of the Court. This enables a party to obtain an accurate record of these payments. Also, it makes it easier to request assistance from the Friend of the Court in the event that payments are not forthcoming, or if a spouse denies receiving payments.
Enforcement of spousal support payments is usually instituted by an Order to Show Cause. The procedure will be explained to you, by your attorneys, upon request.
The custodial parent is entitled to take the minor child or children, as dependents, for all tax purposes. The parties may agree that the non-custodial parent shall have this allowance and enter this agreement into the Judgment. However, courts based upon then-existing tax laws have not always recognized such provisions as enforceable by the Court. If the non-custodial parent is entitled to the allowance by the Judgment, that parent must obtain, from the custodial parent a signed Form 8332, which must be filed with his or her other federal income tax forms.
Child support is modifiable on the same basis as spousal support. This support is usually ordered until the minor child reaches the age of 18 years, or completes his/her high school education, whichever event occurs last, but not later than the age of 19 ½ years. The courts generally do not order payments after graduation from high school, and this applies to requests for college tuition payments, etc. Enforcement of payments is the same as for spousal support.
If there is an arrearage of child support payments, medical expenses, etc., under any temporary Orders, the Judgment of Divorce must contain a provision preserving this arrearage. In order to preserve a Temporary Order, it must be so ordered in the Judgment of Divorce. If it is not so ordered, it is canceled. Arrearages of support are also subject to a surcharge (like interest) which accrues until the arrearage is paid. The Judgment must also contain certain provisions about medical support, medical insurance coverage and fees to be paid to the Friend of the Court.
Parenting time is generally granted to the non-custodial parent. The Judgment may state that reasonable parenting time is granted and leave it up to the parties to decide the dates; or, specific parenting time hours and dates may be written into the Judgment. Because parenting time provisions vary so widely from judgment to judgment depending on such factors as the age of the children, it is best to discuss the specifics with your attorney. If long distances must be traveled to exercise this parenting time, some arrangements can be made concerning the costs of travel.
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 a trial. Again, 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, as property settlements are not modifiable, except in cases of fraud, clerical error, mistake, or gross unfairness in the initial trial.
Enforcement of property settlements may be made through provisions provided in the Judgment, by execution, show cause, garnishment, etc. Your attorney will explain these procedures to you, upon request.
In determining property issues, the Court will usually consider the following: age of the parties, health of the parties, sources of property, length of the marriage, how the property was accumulated, needs of the parties, needs of the children, earning ability and capacity of the parties, fault of the parties, and other equitable factors. The Court usually uses a 50/50 split of the assets acquired during the marriage as a starting point in its distribution of the property.
This issue is the most emotional and traumatic part of most divorce cases, if both parents cannot agree on the custody arrangement. There is sole custody, joint custody, joint legal custody, and many variations of each. The basis for determining child custody is "what is in 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. You are advised to read and study the Child Custody Act, a copy of which will be given to you upon request.
A party involved in a child custody matter should become acquainted with the Child Custody Act of 1970, and study and be prepared to give their reasons for wanting custody pursuant to 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 educating 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 medical care, and other marital 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.
When there are custody disputes, the parents must be advised as to joint custody:
- At the request of either parent, the Court shall consider an award of joint custody. The Court shall determine whether joint custody is in the best interest of the child by considering the following factors:
(a) The factors enumerated above.
(b) Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.
- If the parents agree on joint custody, the Court shall award joint custody unless the Court determines on the record, based upon clear and convincing evidence, that joint custody is not in the best interests of the child.
- If the Court awards joint custody, the Court may include in its award a statement regarding when the child shall reside with each parent, or may provide that physical custody be shared by the parents in a manner to assure the child continuing contact with both parents.
- During the time the child resides with a parent, that parent shall decide all routine matters concerning the child.
- If there is a dispute regarding residence, the Court shall state the basis for a residency award on the record or in writing.
- Joint custody shall not eliminate the responsibility for child support. Each parent shall be responsible for child support based on the needs of the child and the actual resources of each parent. If a parent would otherwise be unable to maintain adequate housing for the child and the other parent has sufficient resources, the Court may order modified support payments for a portion of housing expenses, even during a period when the child is not residing in the home of the parent receiving support.
- As used in this section, "joint custody" means an Order of the Court in which one or both of the following is specified:
(a) That the child shall reside alternatively for specific periods with each of the parents (joint physical custody).
(b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child (joint legal custody).
If you choose this law firm to represent you, a primary attorney will be assigned to your case. Other attorneys and legal assistants who are experienced in various aspects of your case may assist your attorney from time to time. Their assistance will make the handling of your case more efficient and economical. Frequently, a legal assistant/secretary working on your case can answer your questions for you as well. If at any time you feel that it is necessary to speak directly to the primary attorney handling your case, you may initiate a telephone conference, leave a voice mail message, or a personal meeting will be arranged at the first reasonable opportunity.
Our fees are based on the Michigan Rules of Professional Conduct, a copy of which will be furnished to you upon request. As compensation for our services, you will be billed periodically at our current hourly rates. The hourly rate depends on which particular attorney, paralegal, or legal assistant/secretary actually performs the service. Services may include, among other things, office and telephone conferences, drafting, negotiations, hearings in Court and reviewing materials relevant to your case. You will also be charged for our out-of-pocket expenses such as long distance phone calls, court fees, transcripts, appraisals, mediator fees, mileage and photocopies, if applicable. Your attorney can give you some indication as to the cost of cases similar to yours depending on the number of stages in the proceedings which are necessary. However, we cannot estimate with specificity what your ultimate fees will be at the conclusion of your case. Your final billing for legal services rendered and costs incurred shall be paid based upon factors upon which attorneys are ethically permitted to charge. These factors include time spent, result obtained and ability of the attorney.
Some divorces cases end in a reconciliation of the parties. If there is viability in your marriage and a chance to save it, we will be pleased to recommend marriage counselors to you and assist you in every possible way to effect this reconciliation. If, on the other hand, you believe the marriage is over, we will do our utmost to obtain a Judgment of Divorce that is satisfactory to you.
As divorce proceedings today are difficult, and extensive work may be necessary, we use a team effort; other attorneys, paralegals, and legal assistants/secretaries in the office are available to assist us at the office, or in Court. However, your primary attorney will oversee and advise on all work performed.
This document, in effect, merely touches the basic elements of divorce and divorce procedure. It is not to be considered as the last word on the subject, but merely as a helpful guide. Literature will be recommended to you upon request.
As your attorneys, we have substantial experience in the field of family law, and we are aware of the pressures and personal difficulties faced by a person involved in the divorce process. We will attempt to ease and hopefully eliminate the cause of these problems. If you have any questions, please do not hesitate to call to arrange an appointment.