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MICHIGAN NO-FAULT DIVORCE – A BRIEF DISCUSSION OF PROCEDURE

Table of Contents

Introduction

“No-Fault divorce”

Divorce Procedure

During the Pendency of the Divorce

Judgment

Alimony/Spousal Support

Introduction

Although every case is different, there are some common questions that people have as they face divorce and custody proceedings. This article is intended to answer questions commonly asked about divorce proceedings. Your specific situation may be somewhat different from the norm, however.

Divorce is never an easy experience, and this is more true if you are not in agreement with your spouse about ending your marriage. One of the things that seems to help clients through what may be a traumatic experience is some knowledge about what might happen next and about how friend of the court referees and judges will resolve contested issues. Your attorney or attorneys are not psychologists or social workers, but they’ve probably dealt with the emotional issues you’re facing over the course of many years. Don’t be afraid to ask questions if you don’t understand the process. The best solutions for problems you and your spouse are facing in the dissolution of your marriage are the ones that you can agree upon. If agreements aren’t possible, then your attorneys will attempt to help you resolve the issues.

Your attorney’s representation depends upon your input. You need to provide your attorney with facts and documents pertaining to your case. You also need to discuss your ideas and your wishes about how the issues are to be resolved. Everything that you tell your attorney is confidential. It is very important that you tell your attorney the truth. If you withhold information, it might adversely affect your case. Even facts that are “bad” – or embarrassing – should be disclosed so that your attorney may help you make the best decisions.

Your case will never be settled without your express input and consent. Your attorney will counsel you and advise you throughout the process. Most cases settle without going to trial. This means that most clients, through their lawyers, come to an agreement that is either put in writing and signed by both parties or is put on the record in open court. This agreement is then incorporated into a “Judgment of Divorce.” Do not, however, feel that you must agree to something that you don’t understand or that you don’t feel is fair. Talk proposals for settlement over with your attorney so that you can make a decision about accepting the proposed settlement or making a counter-offer. Once an agreement is finalized, the opportunity to set it aside is either very, very difficult or impossible.

Your attorney’s role is to give you advice and information, especially to relate your particular set of facts to the law that a referee or judge would rely upon in resolving the issues if you were to go to trial. Your lawyer’s role is also to help you look at options and alternatives that you might have, to guide you through the process, and to cooperate with you in your attempt to get the bets possible results.

“No-fault Divorce”

Michigan is known as a "no-fault" divorce state. This means that anyone can file for a divorce for any reason or for no reason at all. Fault is not a factor that the court relies upon in granting a divorce. In the words of the statute, the court has jurisdiction to grant a divorce if there has been “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 words "no-fault' may be misleading, though. Fault if not a factor if the parties agree upon a final settlement of all issues. However, fault may factor into a court’s decision if there is a dispute as to alimony, property, support, visitation, or custody. That is the reason your attorney will want to know about any extra-marital relationships that either party has had.

Separate Maintenance actions are also allowed in Michigan, although these are rare. The procedure is about the same as that of a divorce. The court will decide custody and support issues and will also divide the marital property between the parties. But neither party may remarry. If one of the parties wants a divorce rather than separate maintenance, the court will consider the case as a divorce matter.

Michigan law also allows annulments, which invalidate a marriage. These, too, are relatively rare. Marriage may be void from the inception or voidable. Grounds for an annulment may be the fact that a marriage has not been consummated, and also include incapacity to marry such as insanity, bigamy, under age, or any type of fraud. Annulment is not available where the parties continue to cohabit.

Divorce Procedure

All divorce have some common elements. This may include filing of the following documents:

Summons. This document notifies the other spouse that he or she is being sued and has 21 days (28 days if served by mail) to respond. If the other partydoesn’t respond, a default may be taken.
Complaint. The complaint states the names of the parties, where, when, and by whom they were married, names and birthdays of any minor children, wife's and husband's name before marriage, length of residence in county and state, date of separation, grounds for divorce, a statement as to property and debts, and the relief requested. Michigan law mandates that a party must reside in Michigan for 180 days and in the county where suit is started for at least 10 days prior to the date of filing.
Affidavit of Service and Return of Service is filed when service is made.
Uniform Child Custody Jurisdiction Enforcement Act Affidavit. This document alerts the court about where the children have resided in the past five (5) years and that no custody action is pending regarding the children. In order to have jurisdiction to award custody, the children must have resided in the state for at least the past six (6) months.
Verified Statement to the Friend of the Court. This document informs the Friend of the Court of the essential facts such as names, addresses, employers, incomes, social security numbers, etc. If the parties will elect to “opt-out” of the FOC system, this is not required, but a motion must be filed.
Record of Divorce. This is a statistical record required by the state.
Motions for Injunctions / Orders. Sometimes a spouse may be concerned that upon learning of a pending divorce action, a spouse will secrete assets. Sometimes attorneys file motions to preserve the status quo to prevent dissipation of assets. If you have any reason to believe that you may need a status quo order, you will want to tell your attorney your concerns. She will explain this procedure to you in detail and ask if you want an Injunction.

Ex Parte Orders. Motions to preserve the status quo are sometimes filed to ensure that the children’s residence is not changed prior to entry of a temporary custody, parenting time, and support order. Such motion must be verified by oath or affidavit. A temporary injunction or order ,may be issued restraining a party from selling, disposing or dissipating assets. Other types of injunctions may be requested.
Filing Fee. At the time of this writing (April 2005) the filing fee for a divorce is $150.00. If there are children, the filing fee is $180.00. There is an additional $40.00 required if the Friend of the Court services are needed. Other costs may be incurred during the proceedings, and also for the cost of serving papers and entry of Judgment.
Other costs. If your divorce is contested, you may incur other costs for such things as appraisals of assets, expert witness fees, transcript costs for depositions, etc.
Notice of Hearing, Motions, and $20.00 Filing Fees. Sometimes in the course of a divorce, your attorney may have to go to court to get your spouse to cooperate with discovery or to enforce the terms of a temporary order. A Motion is filed with the court for some type of relief. A Notice of Hearing advises when and where a hearing will be held.

The Plaintiff is the party who files the lawsuit and the Defendant is the person against whom the case is started. Each county has an office of the Friend of the Court. Their job is to assist the Court. The FOC usually investigates the incomes and circumstances of the parties and makes recommendations about alimony, support, custody, and visitation rights. They also collect and distribute alimony and support payments. The FOC may cooperate to seek enforcement of court orders dealing with support, visitation rights, and alimony.

Once the Complaint and Summons is served, the Defendant must file an answer to the Complaint. If service is made in person, the Defendant has 21 days to respond. If service is made by mail, he or she will have 28 days to respond. Your attorney may extend the deadline. An answer to the lawsuit is, in effect, a response to each paragraph of the Complaint.

Once the answer is filed, the case is contested (in some jurisdictions a Praecipe must be filed with the answer). If the Defendant fails to respond, an order of default is entered and the matter becomes an uncontested divorce case. Sometimes the Defendant may not only answer the Complaint, but may also file a Counter Claim. If that occurs, then the Counter Claim must be answered by the Plaintiff in a timely fashion.

Michigan law compels the parties to wait at least 60 days before the Judgment of Divorce is granted, but if there are minor children then the waiting period is 6 months. Sometimes the 6-month period may be waived if your attorney makes a proper showing of good cause why the waiting period should be waived, but this rarely occurs. The court requires a “pro confesso” hearing before granting the divorce, which means that a witness testifies that the facts set forth in the Complaint are true. A witness is not necessary if the matter is uncontested when heard by the Court.

Temporary orders for custody, support, alimony, mortgage payments, medical payments, visitation, injunctions, and other relief will usually be requested when you file your divorce case. Final orders are entered as part of the Judgment of Divorce.

Temporary orders of support are usually based on a the Michigan Child Support Formula. Generally, alimony and support are based on needs and ability to pay. The Court may take into consideration the life-style of the parties in entering support orders.

If child custody is disputed in your case, the Court will have to consider and make findings of fact on each of eleven factors listed in the child custody act. Sometimes the parties will request psychological evaluations to assist the court in making a decision about who the primary custodial parent should be. If this is true in your case, you will want to spend a lot of time consulting with your attorney about the procedures, the preparation, and the strategy of your case.

Sometimes the Court may order your spouse to pay temporary fees to assist you with the costs of obtaining counsel. A motion filed with the court will be required to obtain this kind of relief.

During The Pendency of the Divorce

Your attorney may spend time during the statutory waiting period helping you to define and narrow the issues and trying to resolve the issues with your spouse. Discovery procedures may be used in order to find the net worth of the parties and the general financial status of the family. Sometimes discovery involves requests for information in writing. Interrogatories (written questions) may be sent out requiring answers under oath from the recipient in order to obtain complete financial data. Documents may also be sought by written requests in order to prove the existence or value of assets or debts. After these somewhat informal procedures, your attorney may schedule depositions in order to obtain further information from the other spouse or other persons who have the needed information.

Sometimes experts are required to assist. These may be appraisers, actuaries (if pensions are involved), or accountants in the case of financial information. They may be psychologists who will perform evaluations to assist the court in determining custody issues. You will be requested to give your input and consent as these procedures are used. After information is gathered, your attorney will draft aproposed settlement offer (or you may receive one from your spouse and his/her attorney). You will be given the opportunity to study the proposed settlement, and to consult with your attorney about the pros and cons of various settlement proposals. Your attorney will give you an opinion of what he or she thinks a court would likely do in deciding these issues so that you may evaluate the proposals before accepting or rejecting them.

If you and your spouse are unable to reach a settlement, the court may appoint a mediator to help resolve the matter. In the alternative your attorney and your spouse’s attorney may agree upon a mediation. Sometimes parties agree to arbitration, which may be binding or non-binding, as the parties arrange and agree.

If you and your spouse are able to reach a settlement, there are two ways that it might be finalized. First, the parties might be asked to sign a property settlement form containing the provisions of the settlement. In the alternative, sometimes the parties may be required to approve the settlement in court, before the judge, after it is placed on the record.

Judgment

The Judgment of Divorce is document that finalizes all of your agreements with your spouse or, if a trial occurs (this happens in less than 10% of all divorce cases), it contains the decision of the Judge about the property, child custody, and support issues in your case. After a settlement is reached and/or the case is tried, the court will enter a Judgment of Divorce. This document will grant the divorce. It will also deal with such matters as alimony, custody, child support, parenting time, and the property settlement. There are some provisions that are required by statute which will also be included, extinguishing a spouse’s rights in insurance policies on the other spouse’s life and extinguishing dower interests (future interests in real estate). Prior to the time this Judgment is entered, you will have the opportunity to examine this document and to have your attorney explain it to you before you approve it.

Alimony/Spousal Support

Sometimes a court will award a spouse alimony and sometimes the parties may agree that it should be paid. Sometimes an alimony award is for lifetime (or until remarriage), but more usually, it is a temporary order. Alimony is a sum of money usually paid by one spouse to another spouse for the support and maintenance. If the court must decide whether to award alimony, the judge will consider the following:

The past relations and conduct of the parties.
The length of the marriage.
The ability of the parties to work.
The source and amount of property awarded to the parties.
The age of the parties
The ability of the parties to pay alimony
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.

Generally, if alimony is not granted, the Judgment of Divorce will either expressly reserve the question of alimony or will state that neither party is entitled to alimony.

If regular or “periodic alimony” is granted in the Judgment of Divorce, that alimony award is modifiable at any time, based upon a change in circumstances of the parties. This means that in the future, alimony might be raised, lowered, or terminated.

If the court awards regular or periodic alimony, those monies are usually taxable to the recipient, and deductible by the payer. The words "payment until death" (or similar words) must be part of the alimony clause, if the payments are to be considered as taxable alimony. If you are awarded this kind of alimony, your spouse will not be able to discharge the obligation in a bankruptcy action.

Alimony in Gross is another kind of periodic payment that is not really support, but rather is an installment payment of a property settlement. This type of payment is not taxable to the recipient, is not deductible by the payer, and is not modifiable. However, because it is not “support,” it might be subject to being discharged in bankruptcy. This type of alimony is expressed as an amount certain. Thee will be no qualifying clauses such as "payable until remarriage". The court will look to the intent of the parties to determine the nature of the alimony.

Your attorney may answer your questions about the many tax consequences and restrictions in regard to alimony and Alimony in Gross or may refer you to an accountant. Tax laws and their interpretation change regularly, as well as State laws and their interpretations. Therefore, your attorney cannot guarantee any tax consequences resulting from your divorce proceedings and the Judgment of Divorce.

Unless the parties opt out, alimony will be paid through the office of the Friend of the Court. The FOC will keep an accurate record of these payments. If the FOC office is involved, they will assist after the Judgment of Divorce is entered to enforce the terms of the Judgment.

An Order to Show Cause Why the Payer Should not be held in Contempt of Court is used to enforce payment of regular or periodic alimony. It is more difficult to enforce payment of Alimony in Gross, and if this becomes a problem, you will want to ask your attorney to explain your options to you.

Once a Judgment of Divorce or Judgment of Separate Maintenance is entered, you may be terminated from your former spouse’s health care insurance policy. Your attorney can explain your options including your right, if applicable, to elect COBRA Health Care.

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 a trial. Again, you must be absolutely sure that you understand and accept the settlement as written, or placed on the record in open court. Property settlements are not modifiable, except in cases of fraud, clerical error, mistake, or gross unfairness in the initial trial

Property settlements are enforceable through provisions provided in the Judgment, by execution, show cause, garnishment, etc. Your attorney can explain these procedures to you.

When a court decides how to divide property, it will usually consider the following:

duration of marriage;
contributions of the parties to the marital estate;
age of the parties;
health of the parties;
life status of the parties;
necessities and circumstances of the parties;
earning abilities of the parties;
past relations and conduct of the parties; and
general principles of equity.

You can read more about division of property and debt on Updates in Michigan Family Law, Jeanne Hannah's Family Law Blog.

Child Support

Child support is based mainly on the child's needs (in conformity with the lifestyle of the parties), and the ability to pay. The FOC may calculate the amount (and may include a paymentfor a portion of daycare expenses). If your spouse is ordered to pay child support, an order of income withholding may issue compelling his or her employer to automatically deduct the amount from each paycheck. If a payer failed to pay court ordered support, he or she may be held in contempt of court. This may result in a jail term.

Child support is modifiable on the same basis as alimony, if a change in circumstances occurs. This support is usually ordered, until the minor reaches the age of 18 years, or graduates from high school, so long as the minor child regularly attends high school on a full-time basis with a reasonable expectation of completing sufficient credits to graduate from high school while residing on a full time basis with the payee of support or at an institution, but in no case after the child reaches nineteen years and six months of age, or until further order of the Court. Enforcement of payments is instituted by an Order to Show Cause.

The custodial parent is entitled to take the minor child or children as dependents for all tax purposes. The parties may agree that the non-custodial parent shall have this allowance and enter this agreement into the Judgment. If the non-custodial parent is entitled to the allowance by the Judgment, said parent must obtain each year from the custodial parent, a signed Form 8332, which must be filed with the non-custodial parent's other federal income tax forms. If the provision giving the non-custodial parent is made within the section of the Judgment of Divorce dealing with child support, then if custody changes, the Court may order that the exemption will be transferred to the parent who is made the custodial parent. If, on the other hand, the parties have agreed that the award of the exemption is part of their property settlement award, then the exemption will remain with the parent who was awarded it in the original Judgment of Divorce.

If, at the time the judgment of Divorce is entered, there is an arrearage of child support payments, medical expenses, etc. the Judgment of Divorce must contain a provision preserving this arrearage. In fact, if any monies are owing under any temporary order, they must be preserved in the Final Judgment of Divorce, or they are waived.

Parenting Time

The non-custodial parent is generally granted parenting time. The Judgment may state that general parenting times are granted and leave it up to the parties to decide the dates, or specific parenting time hours and dates may be written into the Judgment. Michigan’s Parenting If long distance must be traveled to exercise this parenting time, some arrangements can be made concerning the cost of same. Enforcement of parenting time rights is by an Order to Show Cause. Judgments of Divorce provide that the minor child may not be permanently removed from the jurisdiction of the Court without the Court's approval. To move the child from the state, the custodial parent must petition the Court for an Order granting same. Parenting time/Parenting Orders are modifiable upon a showing of a change in circumstances warranting same. There is also a provision in the law for the makeup of parenting times that have been wrongfully denied, and contempt of court action against the offending parent that can lead to a fine or jail term.

You can read more about parenting time issues on Updates in Michigan Family Law, Jeanne Hannah's Family Law Blog.

Child Custody

Child custody is the most emotional and difficult part of many divorce cases. Custody may be awarded solely to one party, although that is rare. Sometimes the parties share “joint custody.” That can mean anything from equal time with the children to a percentage that is far less than half. Sometimes the children stay in the house and the parents rotate in and out on a weekly or bi-weekly basis (called "bird nesting"). Child custody is determined by "what is in the best interest of the child". This topic is very extensive and much will depend upon the specific facts of your case. You may learn a lot by reading the Adobe Acrobat documents on this website under Michigan Family Law Links. There are also discussions about issues impacting custody and parenting time on the Blog. Updates in Michigan Family Law: A Blog

Bear in mind that you and your spouse are the ones who know the most about your family and how it works. The custody arrangement that you mutually agree upon, if you are able to rationally discuss and decide these issues, will be much easier for you and your children to live with than one imposed upon you by a referee or judge who does not know you. Sometimes mediators are helpful to families working through these problems. Social workers who have been trained as mediators can often be of great assistance in figuring out family dynamics and helping families make these difficult decisions.

Before you go to the meeting with the Friend of the Court, be sure to review the FOC manuals that are on Michigan Family Law Links. You should familiarize yourself with the FOC's methods of making custody and parenting time determinations.

If you become involved in a child custody matter, you should careful review the documents mentioned above, learn about, and be prepared to discuss the “best interests of the child” factors enumerated in the Child Custody Act:

The love, affection, and other emotional ties existing between the parties involved and the child.
The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
The capacity and disposition of the parties involved to provide the child with food, clothing, medical care and other remedial care recognized and permitted under the laws of this state in place of medical care, and other marital needs.
The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
The permanence, as a family unit, of the existing or proposed custodial home or homes.
The moral fitness of the parties involved.
The mental and physical health of the parties involved.
The home, school, and community record of the child.
The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
Any other factor considered by the court to be relevant to a particular child custody dispute.

Sometimes parents decide upon joint physical custody. The Michigan statute says that

At the request of either parent, the court shall consider an award of joint custody, and shall state oilier cases joint custody may be considered by the court. The court shall determine whether joint custody is in the best interest of the child by considering the following factors:

     a. The factors enumerated in the above.

     b. Whether the parents will be able to cooperate and generally agree concerning
          important decisions affecting the welfare of the child.
If the parents agree on joint custody, the court shall award joint custody unless the court determines on the record, based upon clear and convincing decisions affecting the welfare of the child.
If the court awards joint custody, the court may include in its award a statement regarding when the child shall reside with each parent, or may provide that physical custody be shared by the parents in a manner to assure the child continuing contact with both parents.
During the time the child resides with a parent, that parent shall decide all routine matters concerning the child.
If there is a dispute regarding residence, the court shall state the basis for a residency award on the record or in writing.
Joint custody shall not estimate the responsibility for child support. Each parent shall be responsible for child support based on the needs of the child and the actual resources of each parent. If a parent would otherwise be unable to maintain adequate housing for the child and the other parent has sufficient resources, the court may order modified support payments or a portion of housing expenses, even during a period when the child is not residing in the home of the parent receiving support. An order of joint custody, in and of itself, shall not constitute grounds for modifying a support order.
As used in this section, "joint custody" means an order of the court in which one or both of the following is specified:

a. That the child shall reside alternatively for specific periods with each of the parents.

b.That the parents shall share decision-making authority as to the important decisions
affecting the welfare of the child.

Child custody orders are modifiable if a party can prove the threshold issue that there has been either a change in circumstances or good cause since the entry of the previous order making it imperative that custody be changed. That change in circumstances or the good cause cannot be just a normal life change (like children growing older, for example). The court must make a determination that in some major way, the change in circumstances or good cause impacts upon the child’s best interests in a fairly major way. The length of time that the child has lived in a stable environment is an important preliminary consideration that the court will make. If the court decides that a custodial environment exists with the custodial parent, then the parent challenging that custody will have a higher burden of proof. As before, the referee’s or judge’s decision will be based upon what is in the best interest of the child. Although the court may take the child's preference into consideration, this is only one of eleven factors. This alone will not convince a court to change custody.

You can read more about custody and parenting time issues on Updates in Michigan Family Law, Jeanne Hannah's Family Law Blog.

Attorney Fees

Your attorney’s legal fees will depend upon how much time must be spent on your case. At the outset, it is impossible to estimate how much your fees will be at the conclusion of your case. My fees are based upon the ethical code lawyers in Michigan are bound to observe. How much your divorce will cost will depend on a number of factors, including the following: 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 novelty and difficulty of the questions involved and the results obtained. An hourly rate will be quoted to you, which may be helpful in estimating how much this will cost. In addition to fees, you will also be responsible for filing fees, service fees for process servers, appraisals, expert witness fees, etc. You will be charged for conferences, emails and correspondence, telephone calls, office and research work, court time, filing, and hearings. Sometimes a judge will order your spouse to contribute toward your attorney fees. If this occurs, you will be given credit on the amount your spouse pays. A lawyer cannot base fees on a contingent fee contract in a divorce case.

Conclusion

Sometimes divorce cases end in a reconciliation of the parties. You may be an unwilling participant in the divorce process or you may believe that your marriage is viable. If you feel that there is a chance to save your marriage, we will be pleased to recommend marriage counselors to you. Courts are pleased to offer the parties opportunities to reconcile and the proceedings may be stayed for 90 days if both parties agree. If you believe, however, that your marriage is over, we will do everything possible to obtain a Judgment of Divorce that is fair for you.

Divorce brings with it a lot of different types of pressure and personal difficulties. Some of these are best addressed with skilled counselors. However, if you have any questions or special difficulties that you believe I can assist you with, please do not hesitate to call or arrange for an appointment.

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MICHIGAN NO-FAULT DIVORCE – A BRIEF DISCUSSION OF PROCEDURE