Tuesday, August 13, 2013

Basic Divorce Information

The Basics: A person wanting to end his or her marriage must have the circuit court in the county where they reside enter an order ending the marriage. To grant the divorce, the court must find that there has been a breakdown in the marriage relationship to the extent that the parties cannot live together as husband and wife. At least one of the parties must appear in court to show that this breakdown really does exist. In Michigan, a divorce can be granted even if one of the parties does not want the divorce. A divorce ends the legal relationship between a husband and wife. Where there are children, the divorce does not end the family relationship, even though the relationship will change.  Parents need to continue to work together and communicate to figure out how family life will work while the divorce is pending and after the divorce is final.  Most of the details will have to be worked out before the court will issue a judgment of divorce. These details may include:

  • Who will make decisions, provide daily guidance and take care of the children? (Custody) 
  • What contact will children have with a parent they don't live with? (Parenting time) 
  • How should the property gathered during the marriage be divided? (Property settlement) 
  • How will financial responsibilities for the children be divided? (Child support) 
  • What amount, if any, should one party contribute towards the support of the other, either permanently or temporarily? (Spousal support/alimony) 
  • How will the children's medical, dental and other health care expenses be paid? (Health care coverage) 
  • Will the wife take back her maiden name? (Restoration of maiden name) 
  • Will children be allowed to move from the State of Michigan? (Domicile) 

The Process: The first step in the process is filing a complaint.  There are specific rules about what the complaint needs to contain and how it must be served to the other party.  The other party will most likely need to file an answer, and a temporary order should be obtained early on to set ground rules while the divorce is pending.  The temporary order will often set out a parenting time schedule and resolve immediate issues like who will stay in the marital home, and whether either party should pay child support or spousal support. The parties can agree to a temporary order, or they can ask the court to decide after a hearing. Often this hearing will be conducted by a referee, who makes a recommendation to the circuit court judge. If a party is unhappy with a referee's recommendation, there are options for objecting to the recommendation, but often circuit court judges will give great deference to a referee's decision. Sometimes the judge will ask the Friend of the Court to do an investigation and give the court a recommendation, and the court will often follow that recommendation. The court will set dates and deadlines for different aspects of the case, like a deadline for discovery (see below), a date by which mediation must be completed, and a date by which a final order should be entered.

Resolving the Case: Divorce issues may be resolved by the parties reaching an agreement by themselves or through their attorneys.  Courts also encourage and often require mediation.  Free mediation is available through the Friend of the Court where the parties can show there is a need, or a private mediator will be used.  Usually the court will schedule a pretrial or settlement conference before there is a trial in the hopes of settling the issues; settlement is usually encouraged because parties, especially when they share children, need to be able to deal with issues outside of the courtroom in "real life."  But if the parties can't agree on all the issues, the court will hold an "evidentiary hearing" or trial for unresolved issues.


  •  Ex-Parte Orders - Sometimes a court may enter a custody, parenting time or child support order upon the request of one of the parties before the other party has received notice and without giving the other party a chance to explain his or her side of the story.  This happens in emergency-type situations, where the court is convinced that "irreparable injury, loss, or damage will result from [a] delay." Often this is relevant if one parent is planning on moving to a different country, the custodial parent is incarcerated or mentally unfit, or if one party wants to sell or dispose of marital property without the permission of the other person.  If a party disagrees with an ex-parte order, they must request the court to hold a hearing to change the ex-parte order by filing a motion within 14 days after they receive the order. If a motion is not filed within 14 days, the order automatically becomes a temporary order. 
  • Personal Protection Orders (aka PPO's) - It is not uncommon for one party to a divorce to obtain a personal protection order while a divorce or custody issue is pending.  If there was domestic violence in the relationship, it is a very good idea to get a PPO at the beginning of divorce proceedings because it is such a stressful time and emotions can run very high.  Here are instructions for getting one in Michigan: http://courts.mi.gov/Administration/SCAO/Forms/courtforms/personalprotectionorders/p02.pdf  PPO's are free to get, but the procedure varies by county.
  • Reconciliations and Dismissals - Not every divorce matter that is started ends in a divorce. If the parties are attempting to work out their differences and wish to have enforcement of their court orders suspended, they must provide the court and the Friend of the Court with written notice of their reconciliation. A reconciliation notice does not dismiss a divorce action or suspend a court order. If the parties have resolved their differences and wish to stop the divorce action, they must file an order of dismissal with the circuit court and provide a copy to the Friend of the Court. 
  • Judgment - A judgment contains the orders of the court, which address support, parenting time, custody, property and other related issues. From the date of filing the complaint there is sixty-day waiting period for divorce cases without children and a six month waiting period for divorces where there are minor children. After the waiting period is over the judge may grant a divorce. Some of the sections in the divorce judgment can be changed by the judge after it has been entered. (See Modification of Judgment). Once a judgment has been entered, parties must comply with its terms. If a party is dissatisfied with the judgment, he or she may wish to contact an attorney. Once an order has been entered, a party has 21 days to file an appeal. 
  • Modification of a Judgment  - After a judgment has been entered in a divorce, there are some orders that can be changed, such as custody, parenting time, support, and domicile. A change can only occur if both parties have signed an agreement (stipulation and consent agreement which, if approved by the court will be entered as an order; or a motion has been filed, a hearing has been held and the court enters an order granting a change. The Friend of the Court has a responsibility to petition the court in certain circumstances for child support and parenting time modification. 

Getting Started

Here are some helpful links to get started if you're completely new to the process of divorce, custody, or adoption.  The Friend of the Court can be very helpful; its whole purpose is to assist you with custody and child support issues.