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Michigan Family Law Litigation
Our experience has shown that most divorce cases are settled, which means that the parties reach an agreement that is placed on the court’s record. NEVER AGREE TO SOMETHING YOU DO NOT UNDERSTAND OR TO SOMETHING YOU FEEL YOU ARE FORCED TO AGREE TO. YOUR CONSENT TO AN AGREEMENT MUST BE VOLUNTARY, AFTER CONSULTATION WITH YOUR ATTORNEY. After an agreement is placed on the record, it is extremely difficult and sometimes even impossible to change it.
What are the Grounds for Divorce in Michigan?
Michigan is known as a “no fault” divorce state; however, the words “no fault” can be misleading.
If the parties reach a final settlement on all issues, fault is not a factor.
If there is a dispute about property, child or spousal support, parenting time, or custody, fault may become an active ingredient in resolving these issues.
Basically, Michigan has one ground for divorce: “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 only a recital of this assertion. No details need to be provided.
In Michigan, we have a form of legal separation that is known as separate maintenance.
This arrangement is seldom done.
The procedure is similar to a divorce, except that neither party may remarry.
The law states 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 may not enter a judgment of separate maintenance.
We also have annulment proceedings in Michigan, which invalidate a marriage.
Marriages may be void from the beginning or be voidable, depending on the circumstances.
The grounds include incapacity to marry (such as insanity, bigamy, or under age) or any type of fraud that goes to the heart of the marriage.
Parties wishing an annulment must not cohabitate after having discovered the grounds for the annulment to the marriage.
What is Michigan's Divorce Litigation Procedure?
The initial filing of a divorce case may include the following documents:
Summons.
This document notifies the other spouse that a suit has been started.
He or she has 21 days if personally served in Michigan (28 days if served by mail or if the other spouse lives outside of Michigan) 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; the names and birthdays of children (if any); the parties’ names before marriage; the length of residence in the county and the state; the date of separation; the grounds for divorce; a statement about property; whether a party is pregnant; and the relief requested.
A party must reside in Michigan for at least 180 days and in the county where the suit is started for at least 10 days.
There are some exceptions to the residency requirement.
Affidavit of Service and Return of Service.
This document is filed when service is made.
Affidavit of Previous Suit.
This informs the court whether the parties have filed for divorce before or had any case in another court.
Statement to the Friend of the Court.
This is to inform the Friend of the Court of the essential facts (it is unnecessary in cases in which Friend of the Court services are not required).
Affidavit.
This document lists the children’s residences during the past five years and states that no custody action involving the child is pending (it is only needed when minor children are involved).
Record of Divorce.
This is a statistical record required by the Michigan Department of Health.
Injunctions.
An injunction is requested only when needed to restrain a spouse from committing certain acts.
Ex Parte Orders.
An ex parte order may be obtained for temporary custody, support, etc.
A timely filed objection to the ex parte order will negate the effectiveness of the order until a hearing on the matter.
Affidavit for Ex Parte Order.
This sworn statement affirms that the facts stated to obtain the ex parte order are true.
Circuit Court Filing Fee.
The fee is set by court rule and changes periodically.
There is also a charge for serving papers.
Later on, there may be other costs for services such as appraisers, actuaries, accountants, depositions, etc.
You will be advised before any of these expenses are incurred so that you may negate them.
There may also be Friend of the Court and judgment fees.
Notice of Hearing, Praecipe, Motions, and $20 Filing Fee.
These are required for any motion that requires a hearing.
A motion is a request to the court for some type of relief.
A praecipe is a court form required in some counties requesting that the matter be set for hearing. Notice of hearing advises that a hearing will be held.
Judgment of Divorce.
The judgment is the final document that grants the divorce and states the terms of the divorce. When children are involved, a fee is required.
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.
After the complaint and summons are filed and served, the defendant may file an answer to the complaint, which is a paragraph-by-paragraph response to the complaint.
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
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. Child support, custody, mutual injunctions, and PPOs are usually granted to the plaintiff without a hearing. Other orders require a hearing.
Temporary orders for child support are usually based on a state-recommended chart.
Generally, spousal and child support is based on need and ability to pay.
The lifestyles of the parties are also taken into consideration.
For child custody disputes, you will be advised to study the 11 specific factors listed in the Child Custody Act.
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.
What are the Best Procedures for Trying to Settle a Divorce in Michigan?
Facilitative Mediation.
The parties (and their attorneys, if they wish) meet with a trained mediator who is a neutral.
Their professional training may be in law, mental health or finance.
The parties agree to fully disclose all their assets and debts, making formal discovery unnecessary.
They also agree to a “status quo.”
No one takes major unilateral steps without checking with the other.
They agree to respectfully discuss all their issues with the help of the mediator and decide the best outcome for their family.
The mediator does not suggest the outcome, though the parties can listen to their attorneys for recommendations.
The mediator drafts an agreement that is reviewed by the parties and their lawyers before anyone signs the agreement.
The signed agreement is incorporated into the Judgment of Divorce.
This form of mediation can take place before the complaint is filed to allow the parties to work at their own pace without the pressure of the court schedule.
This form of mediation is also referred to as “early stage mediation.”
Evaluative Mediation.
The parties (and their attorneys) meet with a trained mediator who is a neutral, generally a lawyer.
Formal discovery has usually been completed.
After hearing both parties’ positions, the mediator suggests resolutions to the remaining issues.
This is usually is called late-stage mediation.
Collaborative Practice.
The parties sign an agreement that they will decide the issues in their case without resorting to judicial decision-making.
The process is confidential and full disclosure is required.
The parties also agree to a “status quo.”
No one takes major unilateral steps without checking with the other.
They agree to respectfully discuss all their issues with the help of the mediator or their attorneys and decide the best outcome for their family.
If they feel it necessary and their attorneys recommend it, the parties work with other professionals to help resolve problems. These can include:
Divorce Coaches—mental health professionals who confer with each party to help them work through the emotional impediments to settling their case. Each party has their own coach. This relieves the pressure on their attorney to provide emotional support.
Parenting Specialists—mental health professionals who act as neutrals to help parents and children resolving parenting time and custody disputes.
Financial Consultants—financial professionals who act as neutrals and help the parties budget, figure out tax issues and how best to divide their property.
Using these professionals can reduce the cost of having attorneys work in areas that they do not have specific training.
A mediator can act as the case manager and will draft the settlement agreement or the attorneys can draft the agreement.
Arbitration.
The parties can appoint an arbitrator who will hear their case and decide the issues, in place of a judge.
Arbitration can be limited to specific issues or cover all issues, though the court has the right to review child custody.
There are very limited appeals from arbitration awards.
This can be a tool to speed up receiving a decision.
Litigation.
The attorneys conduct must of the negotiation and often speak for the clients.
Attorneys engage in discovery.
If this does produce a settlement agreement, the parties appear before the judge, who after hearing evidence, issues an opinion on the outstanding issues.
Appeals are available, but the standard of review is high.
Cases are seldom overturned.
How to Obtain a Michigan Divorce Law Judgment?
- The judgment of divorce is the most important document you will receive.
- After a settlement is reached or the case is tried, the court will enter a judgment of divorce as the final decree granting you a divorce.
- It will also deal with such issues as spousal support, custody, child support, parenting time, insurance, 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 approve it.
- Some attorneys favor placing the details of the agreement into a settlement agreement and incorporating that into the judgment of divorce.
What is Michigan's Divorce Law on 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.
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.
Regular or periodic spousal support is usually taxable to the recipient and is deductible by the payer. The phrase “payment until death” must be part of the spousal support clause for it to be considered as taxable spousal support. This type of spousal support is not dischargeable in bankruptcy. Qualifying clauses such as “payable until remarriage” may be included.
Another type of spousal support, referred to as spousal support in gross, has all the attributes of a property settlement; but it is not taxable to the recipient, not deductible by the payer, and not modifiable. However, it may be subject to being discharged in bankruptcy. This type of spousal support is for an amount certain and has no qualifying clauses such as “payable until remarriage.” The court will look to the intent of the parties to determine the nature of the spousal support.
There are many tax consequences and restrictions in regard to spousal support and spousal support in gross, which your attorney or your accountant should explain to you. Because both federal and state tax laws and their interpretation continually change, your attorney cannot guarantee any tax consequences resulting from your divorce proceedings and the judgment of divorce.
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.
The enforcement of regular or periodic spousal support payments is usually instituted by an order to show cause. Your attorney will explain the procedure to you on request. Spousal support in gross is more difficult to enforce, and there are other procedures available for enforcement.
With respect to health care coverage, your attorney will explain to you, on request, your options, including your right, if applicable, to elect health care under COBRA (a federal law that makes health care insurance portable in some instances).
What is Michigan's Divorce Law on Property?
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. 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, because property settlements may not be modified, except in cases of fraud, clerical error, mistake, or gross unfairness in the initial trial.
Property settlements in judgments may be enforced by execution, garnishment, show cause proceedings, etc.
In determining property issues, the court will usually consider the following:
the length of the marriage
the contributions of the parties to the marital estate
the ages of the parties
the health of the parties
the life status of the parties
the necessities and circumstances of the parties
the earning abilities of the parties
the past relations and conduct of the parties
general principles of equity
Generally, property of the marriage is divided 50-50.
What is Michigan's Law on Attorney Fees in a Divorce Proceeding?
Attorney fees are governed by the Michigan Rules of Professional Conduct. In a divorce case, a lawyer may not enter into an agreement for, charge, or collect a contingent fee (a fee based on a percentage of the monetary award to the client).
Attorney fees are based on a number of factors, including:
the amount and nature of the services rendered;
the time, labor, and difficulty involved;
the character and importance of the litigation;
the amount of assets and value of the estate affected; and
the requisite professional skill and expertise exercised by your attorney as well as the novelty and difficulty of the questions involved and the results obtained.
You will also be responsible for disbursements made on your behalf by your attorney for such items as court costs, filing fees, service of pleadings, appraisals, expert witness fees, etc.
You will be charged for consultations, correspondence, phone calls, office and research work, court time, filing, and hearings.
If your spouse is ordered to contribute to your attorney’s fees, you will be given credit for the amount your spouse pays.
Other Matters on Michigan Family Law
Many matters can arise after the case is concluded for which counsel should be retained. These matters may be for the enforcement of child support, spousal support, parenting time, or property provisions. Further, Michigan now permits personal injury actions for physical or emotional injuries inflicted by a spouse or former spouse during the marriage or afterwards.
Affordable Michigan Family Law Attorney
CALL US TODAY AT 248-850-5824
OR CONTACT US ONLINE!