Michigan
Divorce
Law - Divorce Procedures
This is a brief overview of the
steps in the divorce process followed in divorce cases in Kent County, Michigan.
The specifics will vary in some ways in other counties. The focus of
this article is how we get decisions from the Court, rather than what
those decisions may be. Michigan has no fault divorce. This means that the
Court will grant a divorce even if the Defendant does not want the
divorce. Contested cases involve disputes concerning the terms of the
divorce, not whether there will be a divorce. Disputes are resolved either by agreement to settle, or
by the Judge. If the parties settle, the settlement is put into the form
of a court order or orders, and the Judge thereby orders the parties to
be bound by that settlement. Because our court system is overcrowded
with too many cases for the number of Judges available, most divorce
cases are at some point settled. Even for cases that go to trial, most
of the issues are often settled, and only some issues need to be decided
by the Judge. For example, the parties might settle upon the terms of
the property division, but have a trial over custody of the children.
Divorce Procedures Vary Depending on
Circumstances:
For the purpose of handling cases, we distinguish between those which
do or do not involve minor children. In cases where there are no minor
children, the most common issues which must be decided by the Judge or
by the parties are separation (i.e., who moves out, under what terms),
alimony, payment of debts, and property division. In cases where there
are minor children, there are additional issues, primarily involving
custody, parenting time, and child support. We also distinguish between
those cases in which the spouse will cooperate with us (consent cases),
those in which the spouse will not cooperate but will not actively
contest (default cases), and those in which the spouse does contest
(contested cases).
Brief Outline of Steps in Contested Divorce Cases:
Typical steps in a contested divorce would include the
following. Any given case may have more or fewer steps depending on the
circumstances:
- Initial consultation - information gathered,
terms of divorce discussed, tactics identified, and procedures to follow
are
determined.
- Prepare initial documents -
The initial paperwork will depend upon the
facts and issues in the case. The following are the most
common papers prepared at the start of the case:
- Complaint for Divorce
- sets forth basic facts regarding the marriage, states that the
marriage has broken down and cannot be saved, and requests basic
terms of the divorce. The specific things stated and
requested depend upon what is required by the court rules as
well as the facts of the case.
- Record of Divorce
-
this is filed with the Complaint for Divorce and will go to the
Michigan agency that keeps vital statistics after the divorce is
granted.
- Summons
- a notice to
the Defendant of the right and need to defend the case in order
to avoid being defaulted
- UCCJEAA
- an affidavit
needed to establish the jurisdiction of the court over minor
children; most attorneys incorporate this into the Complaint for
Divorce instead of as a separate document
- Non-Military Affidavit
- notice to the court that special rules for persons on active
duty in military do not apply (if applicable); this is also
usually incorporated into the Complaint for Divorce
- Verified Statement
-
information for the Friend of the Court if there will be spousal
support or if there are minor children
- Support Calculations
-
preliminary child and spousal support calculations based on
available information are done to be included in the request for
temporary relief
- Motion for Temporary Order
- request for court to determine the
parties' responsibilities until the divorce is granted.
Typical issues are separation (who should move out), custody,
parenting time, child support, spousal support, payment of
bills, preservation of property pending division, and insurance
issues. A motion is almost always filed in Kent County
where there are minor children, and often filed where there are
no minor children.
- Notice of Hearing
-
this tells the Defendant when the hearing on the Motion for
Temporary Order will be held
- Motion Card
- this is
another notice of hearing, used by the Court to keep track of
the court file when it goes to the Judge or a Referee for a
hearing
- Temporary Order
- a
preliminary draft of a Temporary Order is usually prepared based
on the relief being requested by the Plaintiff. This will
be modified if necessary based on the ruling of the Judge at the
hearing on the Motion for Temporary Order
- Uniform Child Support Order
- a preliminary draft of a temporary order
for the child support
- Uniform Spousal Support Order
- a preliminary draft of a temporary order
for the spousal support
- Judgment Information Form
- a supplemental information form for the
Friend of the Court updating information whenever there is a new
support order
- Meeting with Client
to Review and Sign Initial Papers
- File case - and Summons Issued
by Court Clerk
- Service of process - Copies of the
initial papers are given to the
Defendant. Service might be by process server, certified mail, or
given to the Defendant in exchange for an Acknowledgment of Service.
- Answer filed - To have a say in terms of divorce, the
Defendant must file an answer with the Court and mail a copy to the
Plaintiff or Plaintiff's attorney. Even if the parties believe there is no dispute, it is
prudent for the Defendant to file an Answer.
- Temporary order and support orders obtained,
either by consent of the other party or following a hearing on the
Motion for Temporary Order.
- Discovery - information is obtained from spouse or other parties,
informally or formally. Formal discovery may involve written questions
to be answered under oath, documents to be produced, or documents
subpoenaed. Appraisals are obtained to determine values of property.
In the event of non-cooperation, there may be a hearing or hearings
on motions to compel discovery.
- If there is a custody dispute - usually there is a referral by the Court to the
Friend of the Court for investigation and recommendation. Multiple trips
to Court may be required over custody issues before trial.
- Informal settlement negotiations, by telephone, letter, proposed Judgment of
Divorce, or meeting at one of attorneys’ offices.
- Mediation: a more formal type of settlement negotiation.
The parties retain a neutral mediator to assist in attempting to obtain
a settlement. If the parties do not settle informally through
their own negotiations, the Judge
will usually order the parties to try mediation before they can proceed
to trial. Mediation can occur at any stage of the case (indeed,
even before the case is filed). The mediator does not decide
disputes. Each party can veto any proposal made by the other party
or mediator.
- Settlement conference:
If unable to settle informally, a formal settlement conference is
scheduled with the
Judge. Attorneys prepare briefs for the Judge (and each other).
The parties must attend court. There are often intense settlement
negotiations. If the case is settled, the
attorneys and parties go into the courtroom and place the settlement on the
record. The Plaintiff testifies that the marriage has broken down
and cannot be saved.
- Arbitration: Arbitration is a less formal method of
resolving disputes than trial. The parties agree to allow a
neutral arbitrator to resolve the dispute. The rules of evidence
and other formal trial procedures are usually waived. The parties
argue their positions to the arbitrator, who then resolves the dispute.
Compared to going to trial, arbitration has the following advantages:
it should be less costly, quicker, informal, and it is private.
The primary disadvantages are that you have less right to appeal if you
disagree with the decision and you have to pay an arbitrator, unlike
the Judge.
- Trial preparation: Interview witnesses, prepare for examination and
cross-examination of witnesses, and prepare trial brief and exhibits.
Usually settlement negotiations continue through this process right up
to trial.
- Trial: The last resort if the parties cannot settle. The Judge will hear
the facts and
resolve disputes. There is no right to jury trial in divorce cases.
- Judgment of Divorce: The agreement of the parties, or decision
of the arbitrator or Judge, must be put into a court order granting the divorce and
setting the terms of the divorce. The attorneys usually agree on
the language of the Judgment, but sometimes there are disagreements
which result in still more hearings. There may be other final
documents, including:
- Uniform Child Support Order - child support
often changes between the Temporary Order and the Judgment of
Divorce
- Uniform Spousal Support Order - may also
change from the Temporary Order
- Judgment Information Form - new support
orders require updating Friend of the Court on certain
information
- Domestic Relations Orders - if
retirement benefits are being divided, there must often be a
separate order for each retirement benefit
- Pro con hearing: This is a brief hearing to finalize divorce at which the
Plaintiff testifies to establish the no fault grounds for divorce.
In cases that are settled, this is set as a brief, uncontested
hearing.
If the case goes to trial a separate will not generally be
required.
Consent Divorce Cases:
If the spouse will cooperate and the parties agree on
the terms of divorce in advance or shortly after the filing of the case, the steps in processing the case may be
substantially reduced. After the case is filed, papers will be mailed to
the spouse with a request that an Acknowledgment of Service be signed
and returned. If a Temporary Order and Support Order is required, it is mailed to the
spouse. If signed and returned, I obtain the Judge's approval of the
orders without
the necessity of a hearing. The Judgment of Divorce is likewise mailed
to the spouse, to be signed and returned. The case is completed with an
uncontested pro con hearing. Since most contested cases are settled, a
contested case will likely turn into a consent case at some point. The
sooner the case is settled, the fewer steps that may be required and the
less expensive the attorney fees will be.
Default
Divorce Cases:
In a contested divorce case, the Defendant has bargaining leverage
against the Plaintiff because the Plaintiff must either settle on terms
acceptable to the Defendant, or go through a trial. However, if
the Defendant fails to file an answer, a default can be entered against
the Defendant. The default is effectively a waiver of the right to
trial, and also relieves the Plaintiff from having to enter into a
settlement with Defendant (though the Plaintiff may still wish to and
can agree to a settlement). If the Plaintiff needs a Temporary
Order a motion hearing at the start of the case will generally still be
required. However, the Plaintiff will not need to negotiate the
final terms of divorce with the Defendant. Being defaulted results
in a severe loss of negotiating strength for the Defendant. The Defendant may file a motion asking the
Court to set aside the default. If this motion is granted, the
case turns into a contested case. If no motion is filed, or if the
motion is denied, the Plaintiff can proceed to finalize the case without
the consent of the Defendant. At the end of the waiting period, we will
file a motion, with notice to the Defendant, asking the Judge to approve
a Judgment with terms requested by the Plaintiff, without regard for
what the Defendant might want. If the Defendant still fails to
move to set aside the default, the Judge will likely approve whatever proposed Default Judgment of Divorce
and Support Order may be
requested by the Plaintiff.
Free Initial Consultation
Call Michael Idema for a free initial office
consultation for your Kent County, Michigan Divorce:
(616)
647-2200. Home
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About Michael Idema |
Michael Idema
Divorce Lawyer
6410-A Alpine
Ave NW
Comstock Park,
MI 49321
(Between 7 & 8
Mile Roads)
mike@michaelidema.com
(616)
647-2200 This is the Divorce
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