While every case is factually different, this is intended to be a brief outline of some of the typical steps in a divorce case. The initial document filed with the court to start a divorce is called a “Complaint for Divorce.” The Complaint for Divorce has provisions to help the court determine if it has jurisdiction, states when and where you were married, that there is a breakdown of the marital relationship that the objects of matrimony can no longer be preserved, the children of the marriage, and a request that property be divided equitably.
After the Complaint for Divorce has been filed with the court, the Defendant must be properly served. Proper service can be achieved in any of the following ways: 1) a process server or sheriff’s deputy personally hands the Summons and Complaint to the Defendant, 2) by certified mail, restricted delivery, and once the “green card” is signed by the Defendant, this is filed with the court, or 3) Defendant acknowledges service by signing the Summons, which is then filed with the court.
Once the Defendant is served, he or she has 21 days if personally served or he or she signed the acknowledgement of service, or 28 days if he or she was served by certified mail to file an “Answer to the Complaint for Divorce.”
If no Answer is filed by the Defendant, then the Plaintiff may ask the court for a “Default.” Once the court finds a Defendant is in default for failing to file an Answer, the court may proceed to enter a Default Judgment of Divorce, so long as it is in compliance with the applicable status and court rules, without the consent of the Defendant.
Michigan Court Rules require that in all cases, the parties must wait 60 days from the date of filing the Complaint for Divorce before a Judgment of Divorce can be entered in a divorce with no minor children. This time period cannot be waived. When the parties have minor children, the Michigan Court Rules requires a 6 month waiting period. The court does have the option to waive the 6 month waiting period, if the Judge chooses to do so and finds that waiver is in the best interest of the minor children, however, the court cannot enter a Judgment of Divorce prior to 60 days.
Discovery is a process of obtaining information from the opposing party and can be done by subpoenas, request for document production, interrogatories, or deposition. The intent of discovery varies from case to case, but is often used as a tool to gather information such as assets, debts, employment information, or other relevant information necessary to negotiate a settlement.
Mediation can take many forms, can be attended with or without attorneys, can be voluntary or court ordered, and is intended to help find amicable resolutions of some or all of the issues in a case. Mediation is typically not allowed in cases where domestic violence is involved, short of the court ordering mediation. If the case cannot be resolved in mediation, or some issues remain unresolved, the case will continue on the litigation track towards trial.
Binding arbitration is similar to mediation but is a binding agreement between the parties. An arbitration is held by a private attorney, not a judge, selected by the parties. The court must allow the parties to arbitrate a case, and typically will not do so in cases where domestic violence has been present. The proceeding is taped and at the end, the arbitrator will issue a decision, which will become an order of the court. The ability to appeal an arbitrator’s decision is much more limited than those where a judge issues an order in a case.
Trial in domestic cases are very rare, but that does not mean that they do not happen. Most experienced attorneys will explain the numerous advantages to working out a settlement, including the ability to personally control the outcome of your case, the high monetary and emotional costs of a trial to the parties and the children if children are involved, although settlement occasional cannot be done. For any number of reasons, the parties may be unable to resolve their case regardless of good faith attempts by one or both of the parties.
In the rare cases where trial is necessary, there are procedures that must be followed: trial briefs may be required by the court, witness and exhibits lists may be required, and any stipulations by the attorneys or parties that may have been made prior to trial. Once the trial starts, opening statements will typically be made. Plaintiff will present their evidence and testimony on first. Defendant will have the opportunity to cross-examine Plaintiff’s witnesses and evidence presented. Once Plaintiff has rested their cased and concluded presenting witnesses and evidence, then Defendant will present their witnesses and evidence, with Plaintiff having the opportunity to cross-examine each witness and evidence presented. Once Defendant has rested their case and concluded presenting witnesses and evidence, rebuttal witnesses may be called to rebut testimony or evidence presented by the other party. The final trial procedure is that each party will have the opportunity to present a closing argument summarizing the witnesses testimony and evidence and the law that supports their position.
After both sides are done, the Judge will make a decision on the merits of the case based on the testimony and evidence presented at trial. The Judge may make a decision immediately from the bench, or alternatively, and more often the case, the Judge will take some time to review the testimony and evidence presented before issuing a written opinion and order of the court.
The parties are not divorced until a Judgment of Divorce is entered. The Judgment of Divorce has many statutorily required provisions that must be contained in the Judgment of Divorce. The Judgment of Divorce may be arrived by consent of the parties, by default entry, or after a trial where the Judge issues an opinion and order of the court ruling on all remaining issues.
With No Minor Children
Michigan Court Rules require that in all cases, the parties must wait 60 days from the date of filing the Complaint for Divorce before a Judgment of Divorce can be entered in a divorce with no minor children. This time period cannot be waived.
With Minor Children
When the parties have minor children, the Michigan Court Rules requires a six (6) month waiting period. The court does have the option to waive the 6 month waiting period, if the Judge chooses to do so and finds that waiver is in the best interest of the minor children, however, the court cannot enter a Judgment of Divorce prior to 60 days. Matters with minor children have many more stages to progress through, including Friend of the Court hearings.
Spousal support (previously referred to as alimony) is one of the most contentious areas in family law, partially because of the emotional reaction of people to the terminology. Every case is different.
Michigan case law sets forth eleven (11) factors to be considered in each case to determine whether or not spousal support is appropriate in that case, and if so, the amount and length of time that is suitable for the circumstances. The factors are not all considered “equal” and the court has the discretion to place more weight on certain factors. The factors are:
- The past relationship and conduct of the parties, including fault
- The length of the marriage
- The ability of the parties to work
- The source of 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 the parties support others
- General principles of equity, including fault
There are several mathematical formulas, often referred to as “prognosticators,” similar to those used in child support, which may give the parties and the court guidance on the issue of spousal support. However, none of these “formulas” are binding, meaning the court may review them but is not obligated to follow them. A mathematical formula cannot take into account several of the factors like health, fault, or the situation of the parties, for example. This is why having an experienced family law attorney review your case can be extremely helpful.
There are lots of different types of spousal support from short term rehabilitative support to permanent spousal support, depending on the situation. Spousal support can be modifiable or non-modifiable in both length and amount. While there are some exceptions, spousal support is generally taxable to the recipient and deductible to the payer, so these tax considerations should be reviewed with a CPA and an experienced family law attorney before entering into an agreement. Short term spousal support is often awarded to allow one of the parties time to transition into self-support, usually by allowing the party to go to and/or finish an educational program or find gainful employment. Some circumstances, on the other hand, permanent spousal support is appropriate. Usually, although again this is a case by case basis, even permanent spousal support ends on retirement because the parties begin sharing in retirement/pension benefits.
Divorce Attorney Gaylord MI
A divorce attorney can help you navigate the laws around your divorce. If you are going through a divorce, contact a divorce attorney to assist you. The Law Offices of Daniel J. Harris, P.C. is a divorce attorney in Gaylord MI.