Divorce in Michigan: The Legal Process, Your Rights, and What to Expect

Divorce in Michigan: The Legal Process, Your Rights, and What to Expect

by John F. Schaefer

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Overview

Providing accurate and objective information to help make the right decisions during a divorce in Michigan, this guide provides answers to 360 queries such as What is the mediation process in Michigan and is it required? How quickly can one get a divorce? Who decides who gets the cars, the pets, and the house? What actions might influence child custody? How are bills divided and paid during the divorce? How much will a divorce cost? and Will a spouse have to pay some or all attorney fees? Structured in a question-and-answer format, this divorce handbook provides clear and concise responses to help build confidence and give the peace of mind needed to meet the challenges of a divorce proceeding.

Product Details

ISBN-13: 9781943886227
Publisher: Addicus Books
Publication date: 12/30/2015
Series: Divorce In
Sold by: Barnes & Noble
Format: NOOK Book
Pages: 260
File size: 1 MB

About the Author

John F. Schaefer, Esq., has been practicing matrimonial law for more than 35 years. He has served on the Board of Trustees and as an adjunct professor of law at the Michigan State University College of Law. He is listed in all editions of The Best Lawyers in America, and he regularly appears on radio and television programs discussing legal topics, including matrimonial law. He lives in Birmingham, Michigan.

Read an Excerpt

Divorce in Michigan

The Legal Process, Your Rights, and What to Expect


By John F. Schaefer

Addicus Books, Inc.

Copyright © 2016 John F. Schaefer
All rights reserved.
ISBN: 978-1-943886-22-7



CHAPTER 1

Understanding the Divorce Process


At a time when your life can feel like it's in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of many aspects of your divorce may be unknown, increasing your fear and anxiety. But there is one part of your divorce that does have some measure of predictability and that is the divorce process itself.

Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing stages and moving forward with your divorce can reassure you that it won't go on forever.

Develop a basic understanding of the divorce process. This will lower your anxiety when your attorney starts talking about "depositions" or "going to trial," and you feel your heart start pounding in fear. It can reduce your frustration about the length of the process because you understand why each step is needed. It will support you to begin preparing for what comes next.

Most importantly, understanding the divorce process will make your experience of the entire divorce easier. Who wouldn't prefer that?


1.1 What is my first step in seeking a divorce?

Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer's experience and reputation.

Even if you are not ready to file for divorce, call to schedule an appointment right away to obtain information about protecting yourself and your children. Even if you are not planning to file for divorce, your spouse might be.

Ask what documents you should take to your initial consultation. Make a list of your questions to bring to your first meeting. Start making plans for how you will pay your attorney to begin work on your case.


1.2 Must I have an attorney to get a divorce in Michigan?

You are not required to have an attorney to obtain a divorce in Michigan. However, if your case involves children, alimony, significant property, or debts, you should avoid proceeding on your own.

If your divorce does not involve any of these issues, contact the Legal Aid Clinic at a law school near you or your local Bar Association to request documents and instructions that are helpful in the simplest of cases. The court clerk or staff cannot provide legal advice and will not assist you other than to direct you to the appropriate court forms. A person who proceeds in a legal matter without a lawyer is referred to as being pro se, on one's own.

If you are considering proceeding without an attorney, at a minimum have an initial consultation with an attorney to discuss your rights and duties under the law. You may have certain rights or obligations of which you are unaware. Meeting with a lawyer can help you decide whether to proceed on your own.


1.3 What other steps are taken during the divorce process?

The divorce process in Michigan typically involves the steps listed below.

• Obtain a referral for a lawyer.

• Schedule an appointment with an attorney.

• Prepare questions and gather needed documents for initial consultation.

• Meet for initial consultation with attorney.

• Pay retainer to attorney and sign retainer agreement.

• Provide requested information and documents to your attorney.

• Take other actions as advised by attorney, such as opening or closing financial accounts.

• Attorney prepares complaint for divorce and affidavits for temporary matters for your review and signature.

• Attorney files complaint with clerk of the court. Attorney obtains ex parte restraining orders if appropriate. Attorney obtains hearing date for temporary matters.

• Mandatory sixty-day waiting period begins when filing the complaint.

• Negotiations begin regarding terms of temporary order on matters such as custody, support, and temporary possession of the family home. Attorneys prepare financial affidavits and child-support guidelines for temporary hearing.

• Parties reach agreement on temporary order.

OR

• Parties file motions relative to temporary matters.

• Temporary order is prepared by one attorney, approved as to form by other attorney, and submitted to the judge for signature.

• If there are minor children, parties may be required to attend a parent education class, depending on the county.

• Both sides conduct discovery to obtain information regarding all relevant facts. Obtain valuations of all assets, including expert opinions if needed.

• Ask your attorney for a litigation budget to help you anticipate and prepare for the overall cost of litigation.

• Confer with attorney to review facts, identify issues, assess strengths and weaknesses of case, review strategy, and develop proposal for settlement.

• Spouses, with support of attorneys, attempt to reach agreement through written proposals, mediation, settlement conferences, or other negotiation.

• Parties reach agreement on all issues.

• Attorney prepares judgment for divorce and court orders for the division of retirement plans for approval by spouses and attorneys.

OR


• Attorneys and parties prepare for trial and court sets a firm trial date.

• Trial preparations proceed including preparation of witnesses, trial exhibits, legal research on contested issues, pretrial motions, trial brief, preparation of direct and cross-examination of witnesses, preparation of opening statement, subpoena of witnesses, closing argument, and suggestions to the court.

• Meet with attorney for final trial preparation.

• Go to trial.

• Judge makes decision, which could take several months.

• Attorney prepares judgment.

• Other attorney approves it as to form.

• Judgment submitted to judge for signature.

• Judge signs decree of dissolution. Make payments and sign documents (deeds or titles) pursuant to judgment.

• Submit to the court documents required to divide retirement accounts and ensure the payment of child support.

• Pay any remaining balance due on attorney's fees.


1.4 Is Michigan a no-fault state, or do I need grounds for a divorce?

Michigan, like most states, is a no-fault divorce state. This means that neither you nor your spouse is required to prove that the other is "at fault" in order to be granted a divorce. Factors such as infidelity, cruelty, or abandonment are not necessary to receive a divorce in Michigan. Rather, it is necessary to prove that "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 the marriage can be preserved" to have it dissolved.

At the conclusion of the matter, the judge will take testimony from the party who filed confirming there has been a breakdown of the marriage. Typically, judges do not ask substantive questions as to the reasons for the breakdown of the marriage; they simply want to confirm there has been a breakdown of the marriage relationship.


1.5 How will a judge view my infidelity or my spouse's infidelity?

In a no-fault divorce state, there will rarely be testimony or evidence introduced about either spouse's infidelity. However, the judge will hear testimony regarding an extramarital affair if custody is an issue and your child was exposed to the affair.

In Michigan, a judge may consider infidelity in determining an award of alimony and in the division of property. For example, rather than dividing marital property 50/50, a judge may award a smaller percentage of the marital estate to the party who has been unfaithful.


1.6 Do I have to get divorced in the same state I married in?

No. Regardless of where you were married, you may seek a divorce in Michigan if the jurisdictional requirements of residency are met. The jurisdictional requirements are discussed in the following question.


1.7 How long must I have lived in Michigan to get a divorce in the state?

Either you or your spouse must have been a resident of Michigan for 180 days immediately preceding the filing of the complaint for divorce to meet the residency requirement for a divorce in Michigan.

If neither party meets the residency requirement, other legal options are available for your protection. If you do not meet the 180-day residency requirement, talk to your attorney about options such as a legal separation, a petition for a custody-and-support order, or a protection order.


1.8 My spouse has told me she will never "give" me a divorce. Can I get one in Michigan anyway?

Yes. Michigan does not require that your spouse agree to a divorce. If your spouse threatens to not "give" you a divorce, know that in Michigan this is likely to be an idle threat without any basis in the law.

Under Michigan law, to obtain a divorce you must be able to prove that "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 the marriage can be preserved." This is legal terminology meaning that one sees no possibility of reconciliation between you and your spouse. In short, it is not necessary to have your spouse agree to the divorce or to allege the specific difficulties that arose during the marriage to obtain a divorce in Michigan. Rather, it is a subjective test.


1.9 Can I divorce my spouse in Michigan if he or she lives in another state?

Provided you have met the residency requirements for living in Michigan for 180 days prior to filing the complaint for divorce, you can file for divorce here even if your spouse lives in another state. Your residency gives the State of Michigan subject matter jurisdiction.

Discuss with your attorney the facts that will need to be proven and the steps necessary to give your spouse proper notice to ensure that the court will have jurisdiction over your spouse, called personal jurisdiction. Your attorney can counsel you on whether it is possible to proceed with the divorce.


1.10 Can I get a divorce even if I don't know where my spouse is currently living?

Michigan law allows you to proceed with a divorce even if you do not know the current address of your spouse. First, take action to attempt to locate your spouse. Contact family members, friends, former coworkers, or anyone else who might know your spouse's whereabouts. Utilize resources on the Internet that are designed to help locate people.

Let your attorney know of the efforts you have made to attempt to find your spouse. Inform your lawyer of your spouse's last known address, as well as any work address or other address where this person may be found. Once your attorney attempts to give notice to your spouse without success, it is possible to ask the court to proceed with the divorce by giving notice through publication in a newspaper.

Although your divorce may be granted following service of notice by publication in a newspaper, you may not be able to get other court orders such as those for child support or alimony without giving personal notice to your spouse. Talk to your attorney about your options and rights if you don't know where your spouse is living.


1.11 I just moved to a different county within the state of Michigan. Do I have to file in the county where my spouse lives?

You may file your divorce complaint in the county where you reside, so long as you have resided there for ten days prior to the filing of a complaint. You may also file in the county where your spouse resides.


1.12 I immigrated to Michigan. Will my immigration status stop me from getting a divorce?

If you meet the residency requirements for divorce in Michigan, you can get a divorce here notwithstanding your immigration status. Talk to your immigration lawyer about the likelihood of a divorce leading to immigration challenges.

If you are a victim of domestic violence, tell your lawyer. You may be eligible for a change in your immigration status under the federal Violence Against Women Act.


1.13 I want to get divorced in my Indian tribal court. What do I need to know?

Each tribal court has its own laws governing divorce. Requirements for residency, grounds for divorce, and the laws regarding property, alimony, and children can vary substantially from state law. Some tribes have very different laws governing the grounds for your divorce, removal of children from the home, and cohabitation. However, a tribal member may file for divorce in a State of Michigan court. Contact an attorney who is knowledgeable about the law in your tribal court for legal advice on pursuing a divorce in your tribal court or on the requirements for recording a divorce obtained in state court with the clerk of the tribal court. Tribal court orders are given full faith and credit in the Michigan courts.


1.14 Is there a waiting period for a divorce in Michigan?

Yes. Michigan has a mandatory sixty-day waiting period in cases without minor children and a six-month waiting period in cases with minor children. The waiting period begins on the day that the complaint for divorce is filed. The court may waive the six-month waiting period in a case with minor children upon a showing of extenuating circumstances that require shortening the waiting period; however, the sixty-day waiting period may not be waived.


1.15 What is a divorce complaint?

A divorce complaint is a document signed by the person filing for divorce (the plaintiff ) and filed with the clerk of the court to initiate the divorce process. Formerly referred to as a petition, the complaint will set forth in very general terms what the plaintiff is asking the court to order.

A summons is always filed with a divorce complaint. The summons is a document that provides instructions to the person filing as to how to serve the complaint on the defendant (the person not filing). It also provides instructions to the defendant as to when and how he or she must respond to the complaint. The summons also contains a proof of service, which is filed with the court proving that the defendant has in fact been served with a copy of the complaint. See the sample Complaint for Divorce including Ex parte Orders in the Appendix.


1.16 My spouse said she filed for divorce last week, but my lawyer says there's nothing on file at the courthouse. What does it mean to file for divorce?

When lawyers use the term filing they are ordinarily referring to filing a legal document at the courthouse, such as delivering a complaint for divorce to the clerk of the court. Sometimes a person who has hired a lawyer to begin a divorce action uses the phrase "I've filed for divorce," although no papers have yet been taken to the courthouse to start the legal process.


1.17 If we both want a divorce, does it matter who files?

No. In the eyes of the court, the plaintiff (the party who files the complaint initiating the divorce process) and the defendant (the other spouse) are not seen differently by virtue of which party filed. The court, as a neutral decision maker, will not give preference to either party. Both parties will be given adequate notice and each will have a chance to be heard and present argument.


1.18 Are there advantages to filing first?

It depends. Discuss with your attorney whether there are any advantages to your filing first. Your attorney may advise you to file first or to wait until your spouse files, depending upon the overall strategy for your case and your circumstances. For example, if there is a concern that your spouse will begin to transfer assets upon learning about your plans for divorce, your attorney might advise you to seek a temporary restraining order to protect you against such an action, without giving prior notice to your spouse. Under those circumstances, it would be beneficial to file first. However, if you are separated from your spouse but have a beneficial temporary arrangement, your attorney may counsel you to wait for your spouse to file. In a trial it may be advantageous to be first to make an opening statement.

Allow your attorney to support you in making the decision about whether and when to initiate the legal process by filing a complaint for divorce.


1.19 Can I stop the newspaper from publishing notice of the filing or granting of my divorce?

Documents filed with the court, such as a divorce complaint or a final decree, are matters of public record. Newspapers have a right to access this information, and many newspapers publish this information as a matter of routine.

In some cases, a divorce file may be kept private, referred to as being sealed or under seal if the court orders it. An example of a request for suppression of a case might involve a matter of particular sensitivity, notoriety, or the necessity to protect parties or their children.


(Continues...)

Excerpted from Divorce in Michigan by John F. Schaefer. Copyright © 2016 John F. Schaefer. Excerpted by permission of Addicus Books, Inc..
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents

Contents

Acknowledgments,
Introduction,
1 Understanding the Divorce Process,
2 Coping with Stress during the Divorce Process,
3 Choosing and Working with Your Attorney,
4 Attorney Fees and Costs,
5 The Discovery Process,
6 Mediation, Arbitration, and Collaboration,
7 Emergency: When You Fear Your Spouse,
8 Child Custody,
9 Child Support,
10 Alimony,
11 Division of Property,
12 Benefits: Insurance, Retirement, and Pensions,
13 Division of Debts,
14 Taxes,
15 Going to Court,
16 The Appeals Process,
In Closing,
Appendix,
Resources,
Glossary,
About the Author,

Customer Reviews