Legal Separation 2014-10-02T13:18:23+00:00

Legal Separation

In Michigan, we have legal separation that is known as “separate maintenance.” This arrangement is seldom done. The procedure is similar to a divorce, except that neither party may remarry. The law states that if one party institutes a separate maintenance suit and the other party files for divorce, the court will only consider the case as a divorce matter and cannot enter a judgment of separate maintenance.

Annulment

We also have annulment proceedings in Michigan, which invalidate a marriage. Marriages may be void from the outset or be voidable, depending on the circumstances. The grounds include incapacity to marry, such as insanity, bigamy, under age, or any type of fraud that goes to the heart of the marriage. Parties wishing an annulment must not cohabitate after having discovered the grounds for the annulment of the marriage.

If you have any questions about separate maintenance or annulment, please ask us. The following materials basically concerns divorce (though there may be similarities between divorce, separate maintenance and annulment actions).

Divorce Procedure

The initial filing of a divorce case may include the following documents:

  1. Summons. This document notifies the other spouse that a suit has been started. He or she has 21 days, if personally served in Michigan, to respond or a default may be taken (28 days if served by mail or if the other spouse lives outside of Michigan). If a party is defaulted, he or she may not be allowed to participate in the proceedings.
  2. Complaint. This document states the names of the parties, where, when, and by whom you were married, the names and birthdays of the children (if any), the wife’s and husband’s names before marriage, the length of residence in the county and state, the date of separation, the grounds for divorce, a statement as to property, whether the wife is pregnant, and the relief requested. A party must reside in Michigan for at least 180 days and in the county where the suit is started for at least 10 days. There are some exceptions to the residency requirement. Affidavit of Service and Return of Service. This is filed when service of papers on the spouse is made.
  3. Affidavit of Previous Suit. This informs the court as to whether the parties have filed for divorce before or had any case in another court. Statement to the Friend of the Court. This is to inform the Friend of the Court of the essential facts (it is unnecessary in cases where Friend of the Court services are not required).
  4. Affidavit. Another affidavit lists the child’s or children’s residences during the past five years and states that no custody action involving the child is pending (it is only needed when minor children are involved).
  5. Record of Divorce. This is a statistical record required by the Michigan Department of Health.
    Injunction. This is only requested when needed to restrain a spouse from committing certain acts. Your attorney will explain this procedure to you in detail and ask if you want an injunction.
  6. Ex Parte Orders. These may be obtained for temporary custody, support, etc. A timely filed objection to the ex parte order will negate the effectiveness of the order until a hearing on the matter.
  7. Affidavit for Ex Parte Order. This sworn statement affirms the facts stated to obtain the ex parte order are true.
  8. Circuit Court Filing Fee. The court filing fee will be between $180 and $230, as of October 1, 2004. There is also a charge for serving papers. Later on, there may be other costs for services, such as the cost of appraisers, actuaries, accountants, depositions, etc. You will be advised before any of these expenses are incurred. There may also be Friend of the Court and judgment fees.
  9. Notice of Hearing, Praecipe, Motions, and $80-100 Filing Fee. These are required for any motion that requires a hearing. A motion is a request to the court for some type of relief. A praecipe is a court form requesting that the matter be set for hearing. Notice of hearing advises that a hearing will be held.
  10. Judgment of Divorce. This is the final document that grants the divorce and states the terms of the divorce. When there are children involved, a $40 fee is required.

Procedure

The plaintiff is the party who starts the lawsuit. The defendant is the person against whom the suit is filed. The divorce is resolved by the family division of the circuit court. The office of the Friend of the Court makes recommendations for spousal support, child support, custody, and parenting time. This office also collects and distributes the spousal and child support payments. If may also request enforcement of court orders dealing with child and spousal support as well as parenting time. The court may use the Friend of the Court for other miscellaneous duties, including a recommendation on property distribution.

After the complaint and summons are filed and served, the defendant may file an answer to the complaint, which is a paragraph-by-paragraph response to the complaint. Once the answer is filed, the case is contested. If no answer is filed by the defendant, an order of default is entered, indicating the defendant’s lack of response. The matter becomes an uncontested divorce case. If the case is contested, the defendant may not only answer the complaint, but also file his or her own counterclaim. This counterclaim must be answered by the plaintiff.

Timing

A divorce cannot be granted in less than 60 days. When there are minor children, the parties must wait 180 days. However, the six-month period may be waived under certain circumstances. No divorce is granted without a court hearing to determine the truth of statements made in the complaint.

Temporary Orders While Your Case is Pending

Temporary orders for custody, child and spousal support, mortgage payments, medical payments, parenting time, injunctions, and other relief may be requested at any time after your case is started and before a judgment of divorce is entered. A temporary injunction can restrain a party from doing something. There are two types of injunctions to deal with violence: one authorizes immediate arrest (criminal); the other provides for an appearance before the judge to determine what action should be taken (civil). There is also an injunction restraining a party from selling, disposing of, or dissipating assets. Other types of injunctions may be requested. Child support, custody, mutual injunctions, and personal protection orders are usually granted to the plaintiff without a hearing.

Temporary orders for child support are usually based on a state-recommended chart. Generally, spousal and child support is based on need and ability to pay. The lifestyles of the parties are also taken into consideration. For child custody disputes, you will be advised to study the 11 specific factors listed in the Child Custody Act (see Child Custody below). The procedures and preparations for such a case are too involved for this discussion and must be left to further discussions with your attorney.

The court may also award temporary fees to assist a party with his or her costs of obtaining legal services. This is usually obtained in the same way as any other motion. Sometimes it may be part of a motion requesting other relief.

Working Towards Settlement

While your case is pending, your attorney will be defining the issues and trying to resolve them. Your attorney will also attempt to find the net worth of the parties and the general financial status of the family. A verified financial statement or interrogatories may be sent out requiring answers from the recipient under oath. Complete financial data is usually requested. Depositions may be taken (with consent of the client) to obtain further information from the other spouse or from those that have the needed information. Appraisers, actuaries (if pensions are involved), accountants, or behavioral professionals may be used (with the client’s prior consent). You and your attorney, after the discovery work has been completed, will set final goals you wish to obtain. This will not be done hastily, and you will be given an opportunity to study the proposed settlement. Your attorney will advise you on the likelihood of acceptance of your proposals or what a court may do.

The attorneys may call a meeting, with both parties present, and try to resolve as many issues as possible. This is a voluntary process. Either party may decline to attend.

If settlement is reached, the parties will be asked to sign a property settlement form containing all the provisions of the settlement. 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 the most important document you will receive. After a settlement is reached and/or the case is tried, the judgment of divorce will be entered by the court as your final decree granting you a divorce. It will also contain clauses dealing with such issues as spousal support, custody, child support, parenting time, insurance, dower rights, property settlement, and other miscellaneous clauses. If a settlement has been reached, you must carefully read and examine this judgment and have your attorney explain it to you before you approve it.