A divorce is an emotional and painful event. For many parents, the decisions about children are the most important area of concern. You find yourself asking a question you have asked yourself many times before, only now it is more important than ever before, “what is best for my children?”
There are many “factors” that go into the best interests of the children. These “factors” are what affect the outcome of custody cases. I can help you determine your likelihood of success in seeking primary custody or sole physical custody, or any arrangement that best suits the child’s needs and safety.
Over the past four decades I have developed a highly personalized and aggressive approach for both mothers and fathers alike. I am experienced in cases that have been easily resolved and I have been taken on the cases that have to be battled in the court room. Settling is not always an option and you will need someone with trial experience that can go the distance.
No matter how you plan your divorce to go, it is rather unlikely it will be “a clean break”. Matters this personal get messy. Call me, I’ll help clean things up!
THE DIVORCE PROCESS: HOW A MICHIGAN DIVORCE WORKS
In Michigan, there are three ways to end a marriage; annulment, separate maintenance and divorce.
An annulment is a request to the court to strike down the marriage and treat it as if it never existed. Such an action is rare and usually involves a brief marriage that for all purposes never truly existed.
Separate Maintenance is a law suit asking the court to keep the parties married, but to essentially divide up the marital property. When children are involved custody and support for the children are also established. Because few people wish to remain married while living as if they are divorced, separate maintenance is also rare. Usually a Complaint for Separate Maintenance is filed for religious reasons or because a married couple has been married a very long time and one spouse desires to remain under the other’s insurance.
Divorce is a law suit filed by one spouse indicating that the marital relationship has ended and that reconciliation is not going to occur. All that is required is for one party to testify that there has been a breakdown of the marital relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. The term “No-Fault” comes from this position that no one has to be at fault for harming or destroying the marriage for it to be dissolved, someone simply has to want out.
Contrary to popular belief, there is no such thing as filing for a separation. An action for divorce must be filed under one of the above mentioned suits. The separation of the parties is dealt with during the divorce action and will be addressed later.
All Michigan divorce actions are heard in the county Circuit Courts. A party may file a divorce action in Michigan as long as the party filing has resided in the state for 180 days. The party files the suit in the county where he or she resides as long as they have resided there for ten 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, specifically divorces.
If the divorce involves minor children (children born between the parties and under the age of eighteen or not having graduated from high school but no older than nineteen and six months) then the action cannot be finalized for a minimum of six months (aka the six month waiting period). There are certain times when the six month waiting period can be waived but judges are very reluctant to do so. 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.
The largest factor that determines how the process will work is dependent upon whether the divorce is contested or not. A contested divorce is one which may involve many factors such as one or more of the following: one of the parties does not want to end the marriage, the marriage involved domestic violence, the parties cannot agree on how to divide the assets, value of marital property, one or both parties are hiding assets and/or child custody, support and/or parenting time. If you and your spouse agree to the divorce and have worked out these issues, the process will be much faster and with a significant reduction in legal fees.
THE COMPLAINT & ANSWER
The first step is for one of the parties to file the complaint in the court which has proper jurisdiction. It is highly recommended that this party have an attorney to do this for them. Once the complaint is filed then the other party must be served with a copy of the complaint. Service can be done in several ways but usually involves a process server delivering the papers directly to the other partner. When necessary, the party filing the complaint may ask that certain orders, called ex-parte orders, be entered by the court. Ex-parte orders 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.
Once the other partner receives the complaint, they usually get an attorney to handle the case for them, but they may represent themselves. The complaint is a document which contains information explaining what the party wants who filed the suit. Usually it is broad and vague. The other party then answers the allegations in the complaint and either agrees or disagrees and any disputed issues usually begin to show up in the answers. Also, the party that answers the complaint will usually file a counter-complaint for divorce. If the party is personally served they have twenty-one days to answer the complaint. If the party does not answer the complaint then the party who files will file a default with the court. The divorce will proceed regardless if the party has answered or is in default.
After the party answers the complaint or if a default is filed then the whole divorce process begins. In many divorces there are some issues that need to be immediately addressed. Some of the most commons urgent issues are as follows: temporary custody, support, parenting time, where and with whom the parties and/or minor children will reside, who will keep and maintain what property while the divorce is pending (also known as status quo), injunctions as to property, injunctions as to harming or harassing and many others. Many times the parties will be able to agree on many of these issues. If the parties can agree then they may enter into an order called a stipulated order. A stipulated order can include any and all issues during the pendency of the divorce. A judge will most likely always enter this order because the parties are in agreement. If the parties cannot agree on any issue and the issue involves a pertinent matter then either party can bring a motion to the court seeking relief. The motion can deal with any issue and is brought before a Friend of the Court Referee or the Judge. 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.
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. This issue is dealt with later in the section entitled ISSUES INVOLVING MINOR CHILDREN.
During the initial stages of the divorce, the process of discovery may begin. If the parties know the value of the assets and debts then the discovery process is unnecessary. If the values and amounts are unknown by one or both parties then discovery is a necessity. Discovery is where the attorneys work to learn or “discover” all of the assets and debts of the parties. This can be a very difficult part of the divorce if one party is attempting to hide or falsify information about assets or debts. Many records need to be supplied to the other party upon request. This is usually accomplished by one party sending interrogatories to the other party. Interrogatories are questions asked to the other party in which they must answer under oath. One party may also request for the other party to produce documentation. If one party fails to answer the interrogatories or fails to produce documentation then the other party may bring a motion to the court or issue a subpoena, which is a court order, demanding the production. Both parties may also get information by taking the deposition of the parties or any party relevant to the action. A deposition is when a party is questioned under oath by an attorney while a court reporter transcribes everything said. The answers and information presented can be used as evidence during the case.
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.
What you should expect at this point:
As your attorney gets ready to start seeking information from your spouse, the same will be requested of you. You should have the following information ready if available to you:
PROCESS MOVING TOWARD JUDGMENT OF DIVORCE
Divorce is an expensive process for you and your spouse. In order to avoid the uncertainty and expense of a Divorce trial, many parties will attempt to negotiate an agreement on the issues in their case. This can happen at any point during the process as long as the statutory waiting periods have been met. Understand that 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. However, even if the case is settled in this manner, Michigan law still requires that one of the parties, usually the plaintiff, physically appear before the Court and testify under oath that there has been a breakdown of the marriage relationship.
Another way to resolve a divorce case short of going to trial is to go through a process called mediation and/or arbitration. 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. If the mediator can get the parties to agree then the agreement is put on the record in the court or if the parties are not in the court then a mediation agreement will be drawn up by the mediator and signed by the parties. If the mediator cannot get the parties to agree then he or she will prepare an opinion on how the case should be settled. Mediation is an effective process used in many cases. The reason it is used so often is that it is less expensive than going to trial and it is an effective way to settle a case especially if the mediator is experienced. Some courts require the parties to go to mediation prior to going to trial.
Arbitration is the same process as mediation except for a few features. First, arbitration is binding between the parties. What this means is that the parties are agreeing to go to arbitration as an alternative means to going to trial. The reason parties would do this is because of time and money. If parties are going to trial the process takes a far greater time which means more money. Usually the arbitration can be done in one day or less. The arbitrator again is usually another attorney but in some cases can be a retired judge. The arbitrator will initially try to get the parties to settle. If a settlement is impossible then the arbitrator will begin to hear evidence offered by the parties. After hearing all the evidence presented by the parties, the arbitrator will then issue a ruling. The ruling will cover all issues involved in the case. After the parties receive the ruling a judgment of divorce will be entered reiterating the ruling by the arbitrator.
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. Obviously this Judgment is not signed by the Judge until it has been reviewed by both of the parties and their attorneys in order to be sure that it accurately represents the Judge’s Opinion. When the Family Court Judge signs the Judgment of Divorce, the marriage is officially dissolved. The problem with going to trial involves the availability of the Judge and court. 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.
THE JUDGE’S POLICIES
The “outcome” in every divorce case is going to depend on many factors. One of the most important factors is which Judge is assigned to your case. Every Judge brings his or her own background, experience, biases and concerns to the bench. All Judges have reputations on how they will rule in certain areas such as custody, spousal support and fault to name a few. An experienced attorney who practices frequently before the local Family Court in your county should be able to give you some idea as to what arguments are likely to be “convincing” with the particular Judge assigned to your divorce case. This is important for you to remember because although your case is unique, the vast majority of the issues in your specific case, will have been presented to this judge many times before in similar cases.
In Lapeer County there are two Judges that make up the family court. They are Judge Byron Konschuh, and Judge Justus Scott. One of these two judges will handle any divorce action in Lapeer County.
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