The Divorce Process
The commencement of divorce proceedings occurs when one spouse files a complaint with the circuit court. The lawsuit will be filed in the county where he/she resides provided that he/she has resided there for at least 10 days.
If parties live in different states or counties then it is the court in the state/county where the first lawsuit was filed that has jurisdiction. Within the circuit court is a division called the Family Court and specific judges are designated to hear family court cases.
If the divorce involves minor children, then state law requires that the case not be finalized for a minimum of six months unless exceptional circumstances exist. If the divorce does not involve minor children then the action cannot be finalized for a minimum of sixty days. This time period cannot be waived under any circumstances.
Contested v. Uncontested Divorce Proceedings
The largest factor that determines how the divorce process will work is dependant upon whether you and your spouse can resolve your outstanding issues amicably. If you and your spouse are not able to come to an agreement, the terms of the divorce will be contested over all issues that you don’t agree upon, including: division of the assets, valuation of the marital property, and child custody, support and parenting time. If you and your spouse reach an agreement, the process will be much faster, smoother and cost you significantly less in legal fees.
Interim, Ex-Parte Court Orders
Upon filing the Complaint, it is common to also seek the entry of interim, ex-parte orders that can deal with issues such as custody, parenting time, child support, protection from abuse, harassment or an injunction that the other party cannot hide, steal or destroy property upon receipt of the divorce papers. These orders are also served upon the party at the same time they receive the complaint.
Motion Practice Before the Court
If the parties cannot agree on any issue during the divorce proceedings, and the issue involves a pertinent matter, then either party can bring a motion to the court asking the Judge to decide the matter. The Court will then make a decision regarding the issue and enter an order. The Court can also order a hearing in which testimony can be given about any issue in order to better decide that issue. Once the Court enters an order, either by stipulation or after testimony, then the orders will be binding between the parties until the final Judgment of Divorce has been entered or if a subsequent order is entered. If either party violates an order then they may be brought back to the Court to show cause why they did so and possibly be held in contempt. Motions may be brought before the Court at any time during the pendency of the action.
The Friend Of The Court (also known as FOC)
If minor children are involved, the parties are required to go to the Friend of the Court (FOC) for an investigation and recommendation. The Friend of the Court is a division of the Circuit Court which handles all matters involving the minor children including custody, support and parenting time. The FOC may also handle other matters such as spousal support. Usually when parties go to the first meeting with the FOC the issues involving temporary custody, support and parenting time have been established via an order. The first meeting usually involves a support investigator asking the parties if the issue of custody and parenting time is an issue. If the parties agree then the agreement will be included in the investigator’s report and recommendation. If the parties do not agree then there will be a further investigation by another FOC custody investigator. Continuing with the first meeting, the investigator will then gather financial information from both parties. This usually includes tax returns, W2's and pay stubs. The investigator will then determine what the net income of both parties are and determine the amount of child support that will be paid. If custody is still an issue then the investigator will issue alternative recommendations showing what amount would be paid if either party gets physical custody of the minor children.
If custody and parenting time is an issue then another FOC referee or investigator will conduct an investigation.
Discovery is where the attorneys investigate all of the assets and liabilities of the parties so as to equitably divide them at the conclusion of the case. This can be a very difficult and expensive part of the divorce if one party is attempting to hide or falsify information about assets or debts. All financial records of the parties need to be supplied to each other to assist in this process.
Usually discovery involves gathering information regarding assets and debts but can be used for other purposes. These other purposes include gathering information if it is alleged that one party is at fault for the divorce. Fault can be considered many things such as alcoholism, drug abuse, infidelity, gambling and abandonment to name a few. Discovery can be performed to prove this fault.
You should have the following information ready if available to you:
· Copies of your income tax returns for the last 3 years;
· Your actual income (last 3 pay stubs);
· Your spouse's actual income;
· Other household income;
· Savings & checking account information, account numbers, name of bank, and information on any other investments including stocks and bonds; This includes retirement accounts like IRA’s and 401(k) Plans.
· Real Estate holdings - purchase date, purchase price, mortgage balance, current value, form of ownership from the property deed;
· Information about you and your spouse's jewelry, art work and valuable collections;
· Pensions - all information regarding same;
· Educational and employment background of you and your spouse;
· List any special skills and/or potential relevant employment;
· Any other financial matters or situations not covered above;
The nature of any current custodial sharing of the minor children, school information, tutors, extracurricular activities and any special needs of the children.
Negotiate With Your Spouse to Resolve the Case
Divorce is an expensive process for you and your spouse. It is much more expensive if the Court is required to make all of your decisions for you because you and your spouse can not agree.
Many times, one party or the other will enter the process thinking that no negotiations are needed. This is not a practical stance because this forces the Court to make all the decisions and those decisions can frequently be different from what could be achieved in negotiations between the parties. How these negotiations take place can vary. In some cases, the parties and their attorneys will meet together and attempt to negotiate disputed issues. In other cases, it may not be advisable for the parties to meet together and proposals for settlement may be exchanged primarily in written form. It is also possible for the parties to work out many of the details on their own and simply report them to the attorneys for finalization.
If the parties are able to successfully negotiate the issues in their Divorce case, the attorneys will prepare a proposed Judgment of Divorce. This document contains all of the agreements relating to division of property, spousal support (alimony), child custody, child support, parenting time (visitation) and other issues.
Many courts require the parties to go to mediation prior to trial if they can not agree on the outstanding issues. Mediation is a process in which the parties pick a third party (usually another attorney or FOC referee) to try to help them settle the case. After the parties pick a mediator, both parties prepare a mediation summary which outlines the facts of the case and how each party proposes to settle the matter. On the date of the mediation, the parties with their attorneys go before the mediator who is now familiar with the facts and proposed settlements via the mediation summaries. The mediator will try to encourage the parties to negotiate and settle the matter outlining to them the benefits of settlement in comparison with the time and costs of trial. Arbitration
If the parties are not able to negotiate a settlement, the Court will schedule a Trial. A divorce trial is like most other trials. The parties and their attorneys must appear and present testimony and evidence in support of their respective positions. It can take a few hours or days, depending on the circumstances. At the conclusion of the Trial, the Family Court Judge will render an Opinion on the disputed issues (sometimes verbally from the bench and, sometimes, in writing). One of the attorneys will then be directed by the Judge to draft a Judgment of Divorce including the terms and provisions required by the Judge's Opinion. When the Family Court Judge signs the Judgment of Divorce, the marriage is officially dissolved.
Trial is very expensive. Many times a trial will be scheduled with many other cases and adjourned repeatedly. The case may be over a year or two old before the trial is actually heard and when it is heard it may take a great deal of time as the Judge may need to take time to handle other matters or emergencies that were on his/her docket longer.
Property Division and Alimony Fault
Although many factors can contribute to a need to adjust the property division, if both parties contributed to the acquisition, improvement, or accumulation of the property, the courts will usually order a 50/50 split of marital property. Michigan is a "No Fault" State, but fault for the divorce may be considered when dividing property. Fault can be considered infidelity, domestic violence and alcohol, drug or gambling addictions or other bad characteristics that arguably led to the divorce.
Spousal support is another factor that may be awarded by the Court. Formerly spousal support was called alimony. Spousal support is not a given in any case. Unlike child support which a party who has custody always has a right to, spousal support is subjective. A court will sometimes use the following factors in determining if spousal support should be awarded: The past relations and conduct of the parties; The length of the marriage; The ability of the parties to work; The source of an 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.
General Principles of Equity
As with the distribution of assets, the court will try and achieve a “fair and equitable” support award if one is needed. The length of the marriage is usually a major element considered. If the marriage was short and involved no children, support is rarely awarded. In a medium length marriage, support may be awarded for a period of time allowing the other party an opportunity to learn a trade or get some additional education to provide for themselves. For a longer term marriage where a spouse did not work outside the home, support will likely be a component. What constitutes a “long term” marriage? Although there is no court rule, twenty years appears to be the minimum.
Important Things to Remember from Your Lawyer's Perspective
We realize how important your case is to you, but we also need to take care of other cases and may not be available 24 hours a day to talk. That does not mean your case is not being handled properly. Divorce cases take time, particularly when children are involved. Despite your desire to get things done immediately, the case must runs it’s course and often cannot be pushed any faster. We must respond to your spouse’s lawyer when they try and take some action. This type of work cannot always be predicted but takes time and energy to deal with. Expect attorney fees to be incurred as a result of your spouse’s efforts. We need to know everything to properly handle your case. If you fail to tell us everything, you are putting yourself at a disadvantage and jeopardizing your own case. If you leave certain facts out, we will not be able to develop the correct plan of action for your case. Understand, it is highly unlikely that any skeletons in your closet will shock us. We have seen and heard it all before and will not judge you. Your case does not change every day. Although you may learn something new or remember something else, we cannot always do something with that information that day. In order to minimize your attorney fees, it is best to talk to us every few weeks or so and update us at one time, rather than calling all the time. Remember, every time you call, we will likely charge you.