Important Divorce Topics and Considerations:
Michigan is a “no-fault” divorce state. That means that neither part 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.
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 name so 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 that he/she has 21 days to respond. If the defendant does not respond, he/she is in default and the case may continue without further notice to that person. If the defendant files a response with the County Clerk’s office, the case is contested. The response deals with the complaint, paragraph by paragraph. In addition, a defendant can file his/her own complaint called a COUNTERCLAIM. This claim must be answered by the plaintiff.
A divorce cannot be granted in less than 60 days. If there are minor children, the parties must wait 180 days. The six-moth 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 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 with party can feel 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.
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.
Fees are based on a number of actors including the amount and nature of the service es 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 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.
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 settle 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 he settlement before you sign. All property must be divided. It cannot be hidden. The consequences for failing to disclose and asset may be loss the asset.
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 jail sentence for contempt of court.
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 times 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.
For Additional Information
For more information including topics regarding Child Custody, Child Support and Spousal Support, as well as numerous articles written by our attorneys, please visit our website at www.bcfamlaw.com.
Also visit our blog at www.TheMichiganDivorceReport, where we keep you updated on all things divorce and family law related, both locally and nationally. Additionally, we also have many useful links on our blog that you may find handy.