General Divorce Information

General Divorce Information

Important Topics and Considerations

The break-up of a marriage can be very traumatic. No one expects to get a divorce. The role of an attorney in a divorce is to represent your interests and to advise and counsel you so that you are aware of all your options and can make decisions that are right for you.

When you choose an attorney to represent you, make sure the attorney is experienced in divorce law, is someone you can trust, and is someone with whom you can be completely honest. During a divorce proceeding you should never agree to something that you do not understand or that you feel you are being forced into. Your attorney’s job is to explain all the options available.

Reasons for Divorce

Michigan is a “no-fault” divorce state. That means that neither party has to prove fault as grounds for a divorce. If the parties in a divorce reach a final settlement on all issues, fault is not a factor. However, if there is a disagreement on alimony, property settlement, child support or child custody, fault can become an important issue.

A divorce in Michigan is usually granted when 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 extent to which the marital breakdown must be detailed often will depend on the judge involved.

Reconciliation

Not every divorce case ends in divorce. The parties may work out their differences and drop the divorce action.

Separate Maintenance

This proceeding is rarely used because there are many disadvantages, including costly legal expenses which must be repeated if a divorce is later requested. This procedure is similar to divorce, except the marriage is not legally dissolved and the parties cannot remarry. If one party files a suit for separate maintenance and the other party files for divorce, the court will only consider the divorce.

Annulment

This procedure invalidates a marriage under certain circumstances. Grounds for annulment include: incapacities to marry such as insanity, bigamy, impotency, being under legal age or any fraud that goes to the heart of the marriage. Parties requesting an annulment must not live together after discovering the grounds for annulment.

Divorce Procedure

A divorce begins when one or both parties decide that the marriage relationship has broken down and should be ended. The divorce case is processed in the family division of the Circuit Court. The partner that files the court action is the PLAINTIFF. The plaintiff files a COMPLAINT which asks the court to grant an order. The complaint contains the names of the parties, pertinent background, the date of marriage, separation, reasons for divorce, listing of assets and liabilities and relief requested.

 

The other party is the DEFENDANT. The defendant receives a summons saying that a suit has been filed and

Waiting Period

A divorce cannot be granted in less than 60 days. If there are minor children, the parties must wait 180 days. The six-month waiting period may be waived upon a proper showing of circumstances. No divorce is granted without a court hearing concerning the truth of the statements contained in the complaint.

Temporary Orders

Temporary orders for custody, child support, spousal support, mortgage payments, medical payments, visitation, injunctions and other relief may be requested at any time after the beginning of your case.

In some cases a temporary EX-PARTE order is received when the complaint is served. “Ex-parte” means the order is obtained without the other party being present to object. They are granted usually only for very serious matters like support. The ex-parte order may be granted without notice to the other side in an emergency, such as to stop a party from selling or concealing marital property. The other party can review this order and file an objection.

 

If an ex-parte order is not entered either party can file a motion with the court for temporary relief. A hearing in court may be scheduled and both sides can present their position. The decision is written by one of the attorneys and is given to the judge for entry (signing) and made an order of the court.

 

A Personal Protection Order (PPO) is requested when necessary to stop family abuse. PPOs may be obtained with or without an attorney, and it is not necessary that there be a pending divorce case. More information about PPOs can be obtained from the Family Court Clerks Office. The client should have a copy of the PPO on his/her person at all times.

 

What Happens While A Divorce is Pending?

 

Time is spent defining the issues in the divorce and finding ways to resolve them. It is during this period that hard questions must be asked and answered. The net worth of the parties and the general financial status of the family are established. Forms may be sent to both spouses asking for a sworn statement of complete financial information. Experts such as appraisers, accountants or actuaries (if pensions are involved) may be needed to determine financial information. Depositions (sworn statements) may be taken from others to obtain more information about the issues.

When all the financial information has been collected, you and your attorney will set the goals you seek in the divorce. A proposed property settlement will be drafted for you to study, and your lawyer will advise you of its likelihood of acceptance.

 

If settlement is reached, both parties will be asked to sign a property settlement agreement. If there is no agreement, the court may appoint a mediator. The mediator can make a recommendation to the court if no agreement is reached.

 

Attorney Fees

 

Fees are based on a number of factors including the amount and nature of the services performed, the time and difficulty involved, the amount of assets and skill and expertise required. An hourly rate will be quoted.

 

Other costs may include courts costs, filing fees, service of pleadings, appraisals, expert witness fees and others depending on the case.

Your spouse may be ordered to contribute to your attorney fees, if you are unable to pay them.


The Judgment of Divorce

 

The Judgment of Divorce is your final document granting a divorce. It is an order of the court which states your rights and obligations to your ex-spouse and your children. The orders are binding and failure to comply can result in contempt of court proceedings. The judgment contains paragraphs on spousal support, child custody, child support, visitation and property settlement.


Spousal Support

 

Spousal support is money paid by one spouse to another for support. Spousal support is less common in recent divorce cases. It is determined by the following factors:
 

  • Past relations and conduct of the parties
  • Length of the marriage
  • Ability of the parties to work
  • Source and amount of property awarded to the parties
  • Age of the parties
  • Ability to pay spousal support
  • Current situation of the parties
  • Needs
  • Health
  • Prior standard of living

 

The question of spousal support must be either reserved for later determination or it must be determined that neither party is entitled to support. Periodic spousal support can be raised, lowered or canceled at any time based on a change of circumstances. Spousal support may be payable through the Friend of the Court and by income withholding order.

You may obtain interest on your arrearage. Alimony-in-Gross is another form of property settlement that is paid in periodic installments. It is not modifiable.

 

Child Custody

 

The child custody issue is often the most emotional part of a divorce case. This section in the Judgment of Divorce states who will have responsibility for and make the day-to-day decisions regarding a minor child.

The most common custody arrangements are sole custody and joint custody. When more than one party wants to be the custodial parent, custody is contested. Custody is determined by the court based on the “best interest” of the child.

 

Joint Custody

 

Joint Custody, both legal and physical is favored by the courts. Joint custody is an order of the court in which one or both of the following are specified:

 

  • That the child will live alternately, for specific periods, with each of the parents.
  • That parents shall share decisions on important issues dealing with the child.
  • The court often awards joint legal custody but gives physical custody to one parent and parenting time (visitation) rights to the other. Both parents share in the decision-making authority affecting the welfare of the child, specifically but not limited to educations, medical, dental, orthodontic, psychological and religious needs, unless one party is awarded sole legal custody as well.
  • Joint custody is the most desirable option when the 12 factors of custody have been considered and the parents are willing and able to talk and agree on important decisions about their child.

 

The following factors are considered in determining custody of children (from the Michigan Child Custody Act):

 

  1. The love, affection and other emotional ties existing between the parties involved and the child
  2. The capacity and disposition of the parties involved to give the child love, affection, guidance and continuation of the education and raising of the child in his or her religion
  3. The capacity and disposition of the parties involved to provide the child with food, clothing, medical and other remedial care recognized and permitted under the laws of this state in place of medical care and other marital needs
  4. The length of time the child has lived in a stable satisfactory environment, and the desirability of maintaining continuity
  5. The permanence, as a family unit, of the existing or proposed custodial home or homes
  6. The moral fitness of the parties involved
  7. The mental and physical health of the parties involved
  8. The home, school and community record of the child
  9. The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference
  10. The willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and other parent
  11. Domestic violence, regardless of whether it was directed against or witnessed by the child
  12. Any other factor considered by the court to be relevant in a particular child custody dispute

 

Child Support

 

Child support is defined as the payment of money ordered by the Circuit Court for the support of a child. Support is usually ordered until the child reaches the age of 18 or completes high school. Circuit Court judges may allow support for a child up to 19-1/2 if they: 1) attend high school on a full-time basis; 2) have a reasonable expectation of completing graduation requirements; or 3) reside with the recipient of the payment.

 

If child support payments are owed at the time of the divorce (under a temporary order), the Judgment of Divorce must contain an arrearage provision for this amount owed. Michigan law now requires immediate withholding for child support in all cases (without waiting for the non-custodial parent to fall behind), unless otherwise agreed to by the parties and approved by the court.

Child support is collected through the Friend of the Court office. Interest on support arrearages is now your right. Be sure to ask for it.


Property Settlement

 

The parties in a divorce usually arrive at a settlement after negotiation or mediation where available. If it is not resolved, the matter will be settled by the court after the trial. In more than 95% of the divorces the cases do not go to trial but are settled through negotiation with both attorneys. In most cases property is divided equally between the parties.

 

Some matters which should not be overlooked in the property settlement are career assets and pensions. If you are unsure of your assets, a recent loan application or similar financial statement is a good source of information.

 

Property settlements are NOT subject to change except under unusual circumstances. Therefore, you should be absolutely sure you understand and accept the settlement before you sign.

 

All property must be divided. It cannot be hidden. The consequences for failing to disclose an asset may be loss of the asset.


After the Divorce

 

The most common problem after the divorce is non-payment of support. New laws make it easier to force a parent to pay child and spousal support without going back to court.

 

The Friend of the Court is required to automatically begin enforcement action against a parent behind in payment. If there is a good reason for not paying support, the Friend of the Court Office must be notified.
Support can be withheld from a parent’s income, forwarded to the Friend of the Court and sent to the custodial parent. Support also can be obtained from income tax refunds. In the case of a parent who is self-employed, back support payments can be obtained from assets such as bank accounts, property, boats or cars.

 

Child support payments take priority over all other types of financial obligations except federal income taxes.

 

Non-payment may mean a jail sentence for contempt of court.

 

Tips for Making Your Divorce Easier

 

  • If your spouse harms you or threatens you, call the police immediately and your attorney. Obtain a Personal Protection Order.
  • Please call our office when you have a question or need advice. Each divorce is unique, and your attorney is your best source of information.
  • Remember to wear appropriate clothing to court; dresses and suits are most acceptable. Do not wear jeans to court.
  • You will receive a copy of the agreement concerning legal fees. Fees must be paid in full no later than the day of your divorce.
  • Divorce is hard on children. Children and visitation rights are not bargaining tools. Try not to point out all the faults of your spouse to your children. Think of your children’s emotional needs first. Assure your children that they are not to blame for the break-up of the marriage and are not being rejected or abandoned.
  • Try to keep lines of communications open with your spouse. You will continue to deal with this person after the attorneys are no longer involved.
  • A number of financial documents are required to get a complete picture of the assets and income of both spouses. If you can collect documents such as tax records, bank statements, savings and stock information, pension and annuity statements, charge account numbers and balances, loan applications and information about all money owed, you will save both time and money. We will give you a complete list of the financial information needed.
  • Your divorce is final the date the judgment is signed. You are not divorced until you have the signed document. We suggest you do not marry for 28 days after signing because that is the time allowed for appeals.
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