Divorce can be a traumatic and complex process for many couples. In part, this is due to the fear of the unknown. This page provides an outline of the divorce process and is intended to offer a simple explanation of some of the key issues involved in a divorce.
How is a Divorce Started?
A divorce case is started by filing a complaint for divorce in circuit court. If you are served with a divorce complaint, you must file an answer within 21 days or else you could be defaulted. If you are defaulted, you will not be allowed to voice your concerns regarding any issues involved in the divorce.
While the divorce case is pending, the judge will typically require that the martial home be maintained as it has been during the marriage. Thus, the mortgage, utilities, food and other expenses will continue to be paid as they have in the past.
Once the case has been started, the process of “discovery” begins. This process allows each spouse to “discover” or demand what property, income or other information is in the possession of the other spouse.
Once discovery is completed, a settlement can be negotiated between the parties. If the parties are unable to reach an agreement, the judge will typically refer them to a mediator. A mediator is an experienced divorce attorney who assists the parties in reaching an agreement. It is not binding.
If you do not reach a settlement, your case will eventually go to trial and the judge will decide all of the issues involved in your divorce. However, in Michigan, less than 3% of all divorce cases go to trial. Judges simply do not like to hear divorce cases because of the difficult and emotional issues involved.
Dividing Property in a Divorce
As a starting point, marital property is usually divided equally between the parties. However, each party is allowed to keep “non-marital” property – property that a spouse brought into the marriage and inheritances and gifts received and kept separate during marriage.
Equitable factors, such as fault and age and health of the parties, could cause the court to sway from a 50-50 division of marital assets.
What is Marital Property?
Marital property is any property acquired during the marriage, no matter who was responsible for earning it or in whose name it is titled. It includes a pension even though it may have been earned by only one spouse during the marriage. It also includes the appreciation in value of the pre-marital property of a spouse.
Alimony may be awarded by the court in addition to the property settlement. The factors considered by the court are:
- length of marriage
- ability of parties to work;
- age of parties;
- conducts of the parties;
- property awarded to the parties;
- ability to pay alimony;
- prior standard of living of the parties.
Alimony is typically for a limited period of time – referred to as rehabilitative alimony. It is designed to provide support for a few years while the spouse receives job training or education. Alimony is tax deductible by the payer and taxable to the recipient.
There are two types of custody issues involved in a divorce case – legal custody and physical custody. Legal custody refers to decision making authority over matters affecting the child (education, medical, religious, etc.). Michigan favors joint legal custody.
Physical custody has to do with where the child resides. Among the factors which a judge must consider when making a custody decision are:
- love, affection and other emotional ties;
- capacity to give love, affection and guidance to the child;
- capacity to provide food, housing, clothing and medical care;
- length of time the child has been in a stable environment;
- moral fitness of the parties;
- mental and physical health of the parties;
- reasonable preference of the child (if of sufficient age to express a preference).
What is the Role of the Friend of the Court?
The Friend of the Court is an agency of the circuit court which assists the court in divorce cases. They will investigate and make recommendations regarding custody, visitation and support. Although the recommendation is not binding on the parties, it holds a lot of weight in the divorce proceeding.
How is Child Support Determined?
In determining the amount of child support, Michigan has adopted a Statewide Child Support Guideline. The court must use the amount calculated under the Guideline in setting support unless there is a compelling reason not to. The Guideline considers the income of both parties and the needs of the child based on national statistics.
When and How Does a Divorce Become Final?
Michigan has a mandatory waiting period before a divorce can be granted. In cases not involving minor children, it is 60 days after the filing of the complaint. With minor children, six months. The six month waiting period can be waived by the court for good cause.
A divorce cannot be granted without a court hearing. At the hearing there must be testimony that the allegation that the complaint is true and that there has been a breakdown of the marriage relationship. A document titled Divorce Judgment is presented to the judge to sign. The judgment contains the property settlement, alimony and custody and support provisions agreed to by the parties. When the judge signs the judgment, your divorce is final.