divorce

Michigan is a no fault divorce state. This means that either the husband or wife in a marriage needs no reason to file for divorce other than the desire to end that marriage. If the parties in a marriage have no children, then, with few exceptions, one must wait at least two months before the court will finalize the divorce.

If the parties in the marriage have children, then, with few exceptions, one must wait at least six months before the divorce can be finalized.

A basic divorce without children or any other complications will usually proceed as follows. The person initiating the divorce files a complaint with the court. The spouse then normally files an answer to the complaint. If the spouse does not file an answer to the complaint, after 21 days the party initiating the divorce, the Plaintiff, will file a Default document with the court.

The parties then come to an agreement as to the proper division of their property. That agreement is placed in a document entitled the Judgment of Divorce.

After the agreement, if the spouse filed an answer, he or she will then file a Withdrawal of Pleadings document. The Plaintiff would then file a Default with the court. A court date is set, called a Pro Confesso, where certain questions are asked of the Plaintiff in open court. The Judge then will sign the Judgment of Divorce and the divorce becomes final.

If there are children then the above description applies with some additions. There is an additional fee paid at the filing to fund a Friend of the Court Investigation. The Friend of the Court, a government entity concerned with child welfare issues, will call the parties into a conference. The Friend of the Court will then make recommendations concerning child support, visitation, and custody.

There are two types of custody. The first type is primary physical custody. The party that has primary physical custody cares for the child the majority of time. The other party usually is granted visitation rights as determined by the Friend of the Court.

The other type of custody is legal custody. Legal custody concerns the making of important decisions in the life of the child, such as medical decisions and educational decisions. In general, barring extraordinary circumstances, the parties to a divorce are granted joint legal custody.

Of course, many different situations would change the proceedings as above described. For example, if the parties are in dispute the court orders a discovery process to resolve issues. This can include the taking of depositions and written interrogatories.

The court may order mediation where a third party reviews submitted materials and tries to broker a mutually agreed upon judgment of divorce. If mediation is not successful then the court will make a final determination after a trial.

It is important that each party to a divorce has competent representation. Attorney Scott M. Neuman has extensive experience in representing both Plaintiffs and Defendants in divorce actions, and he can be contacted at 1-888-684-3999.

The following sections detail the various aspects of divorce, custody, support, visitation, and property division settling the affairs of the marriage.

Frequently Asked Divorce Questions and Answers

 

Who can file for divorce in Michigan?

One of the spouses must have been a resident of Michigan for at least 6 months and in the county for 10 days immediately before filing for divorce.

 

What are the grounds for divorce in Michigan?

Michigan has no-fault divorce based on the grounds that “There has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”

 

Can a divorce be granted if the respondent’s whereabouts are unknown?

If the filing spouse has made a ‘good faith effort’ to locate the missing spouse, and can swear under oath and penalty of perjury that they do not know the current whereabouts of the respondent and have made an effort to locate them, the missing respondent can be ‘served’ by publication of a notice in a local newspaper.

 

What are the fees filing for divorce in Michigan?

Each county in Michigan sets its own fees for filing legal documents. The filing fee for divorce is generally in the range of $100. If service is made to the respondent by a sheriff or process server, there is an additional fee for service of approximately $25.

 

How is property divided in a divorce in Michigan?

Michigan is an “equitable distribution” state, generally meaning that all marital property acquired during the marriage is subject to division. Property brought into the marriage i.e. that a person had before the marriage are not subject to division in a divorce.

 

How are marital debts divided in a divorce in Michigan?

Most divorcing spouses set out who will pay what debts as part of their marital settlement agreement during the divorce process, and close all of their joint accounts.

 

Does Michigan have Alimony?

Yes. Alimony may be awarded to either spouse for their support and maintenance after the divorce. It is based on the financial circumstances of the divorcing spouses. The needs of one spouse and the ability of the other spouse to pay are the primary factors in determining alimony. Since most spouses are working, alimony (if awarded at all), is usually for a shorter period of time, and smaller amount than in the past. Alimony may be paid in a lump sum payment of money or the award of some property.

 

Are there guidelines for custody of children in Michigan?

Most parents agree about the custody, child support, and visitation issues relating to their children. Joint custody arrangements have become common place and in some states the “norm” in determining the care, custody and support of children. If the parents are unable to ‘work it out’, a judge will ultimately decide these issues for the parents.

 

How is Child Support determined in Michigan?

Michigan, like all other states, has guidelines for determining the amount of child support to be paid. The guideline amount is presumed to arrive at an amount of support that is in the child’s best interest. If the parents are unable to agree to an amount of child support, the court will determine the amount of support based on the Child Support Guidelines.

 

What about medical insurance for the children?

A determination as to who is going to provide medical health care insurance for the children and how any uninsured medical expenses shall be paid between the parties is typically part of the parties’ marital settlement agreement during the divorce process. If medical insurance is available through a parent’s employment, they are required to cover their children through the plan.

 

How permanent are the provisions for child custody and support?

As in any other state, orders providing for the support and custody of children is subject to modification after the divorce if their is a substantial change in the circumstances of the parties i.e. an increase or decrease in income or a change in the living arrangements of the children.

 

Types of Divorce

 

Default Divorce

In a default divorce, only one spouse (the one filing the divorce) is required to sign anything. One spouse files the divorce papers. The other spouse is then notified by being delivered a copy of the divorce papers by the Sheriff, Constable or other authorized process server, (and in some states by certified mail). The spouse being “served” with the divorce papers is not required to sign anything. All that is required is proof that they were notified – not their consent. You cannot force someone to stay married to you.

 

Missing Spouse

If you don’t know where your spouse can be found to be ‘served’ (notified), and you have made a good faith effort to locate them, you can still get your divorce. Missing spouses can be ‘notified’ by running a notice in a local newspaper.

 

Issues Related to Children

 

Child Support

Michigan has guidelines for child support that are presumed to be in the child’s best interest. Unless both parents agree to an amount other than that calculated using the guidelines, child support will be based on the guidelines as a pro rate share for both parent’s combined weekly net income.

 

Withholding Child Support From Earnings

Virtually every state has a provision for withholding child support directly from the earnings of the parent who is ordered to pay child support; much like the way income tax is withheld. This makes both receiving and paying child support ‘easier’ and more certain for both parents. Child support is typically withheld and sent to the state agency authorized to receive and disburse payments. Once the support has been ‘logged’ in to verify that it was paid, the payment is then forwarded to the parent who is to receive support for the benefit of the children.

 

Visitation With Children

Much like calculating child support, the standard visitation ‘schedule which is presumed to be in the best interest of the children is ‘universally accepted. Although parents are generally free to visit with their children at all times mutually agreed to by the parties, the Standard visitation schedule provides a ‘safety net’ for those times when parents cannot agree. With some minor differences, generally all states use what is considered to be the “standard” visitation schedule which is basically: Every other weekend; Summer visitation of approximately 4-6 weeks and Alternating Holidays.

 

Joint Custody

Many states are now ‘urging’ parents to work together for the benefit of the children and reach a ‘joint custody’ agreement. Joint custody is seldom a 50:50 time sharing of children. It is more accurately a 50:50 sharing of responsibility and participating in the decision making process in matters that affect the children.

Generally, one parent is named as the ‘primary’ joint custodian and the other parent is granted visitation “at all times mutually agreed” and failing agreement, under the terms of the state’s standard visitation policy. The primary joint custodian typically retains the decision making authority to determine the child’s primary residence and school; and to designate such things

 

 

Determining Custody

When the court sets out to determine custodial and visitation rights, the issue at hand is the “best interests” of the child.

Below is a partial list of factors taken into consideration. It is ultimately up to the court to decide what weight is to be given to each factor.

Emotional Ties

  • Who does the child speak to when they have a problem? When they have a success?
  • Who has the child bonded with to a greater degree? To whom does the child show open signs of affection?
  • Who spends more time with the child?

Capacity to Raise the Child

  • Who bathes and dresses the child? Who stays at home when the child is sick?
  • Who takes responsibilty for the child’s academic and extracurricular activities?
  • Who disciplines the child in the most appropriate manner?

Capacity to Provide for the Child

  • Who makes more money? Has more job security?
  • Who makes purchases for the child? Who takes the child to medical and dental appointments?
  • Who can provide insurance for the child?

Moral Fitness

  • Has either parent had an extramarital affair known by the children?
  • Has either parent engaged in verbal abuse of the child? Physical or sexual abuse?
  • Does either parent have a drinking problem? Poor driving record? Other questionable behaviors?
Child’s School and Community Activity

  • Who can provide leadership to aid the child in academic and extracurricular pursuits?
  • Who is more actively involved in school conferences and the child’s extracurricular activities?
  • Who can assure that the child has friends and peers conducive to the child’s development?

Other Factors

  • Can either parent provide a safer environment? Greater continuity in the child’s life?
  • Does either parent have a physical or mental problem that would interfere with child-raising?
  • Does either parent have a record of domestic violence?
  • Whom does the child prefer? Is the child mature enough that his or her preference should be substantially weighted?