Frequently Asked Questions About Divorce
1. Can I Stop The Divorce?
Yes and no. Yes, but only if you convince your spouse that there are other alternatives that should be explored before obtaining a divorce. You might consider marital counseling; however, ultimately, there is nothing the reluctant spouse can do to prevent a divorce. If one person wants to be divorced, then there is nothing that the other spouse can do to prevent the ultimate entry of a Judgment of Divorce.
2. How Long Will The Divorce Take?
Michigan has two different waiting periods that provide for the “shortest” time possible before the Judgment can be entered. A divorce judgment generally cannot be entered until after the expiration of a waiting period: 60 days after the complaint was filed for a divorce without minor children, and six months when minor children are involved. The court may shorten the six-month waiting period on written motion if the court finds extenuating circumstances of undue hardship or compelling necessity, but 60 days is the minimum waiting period permitted. The “longest” time possible before a judgment is entered is dependent on either the parties’ ability to reach a settlement on the issues involved in their litigation or the length of time the judge takes to schedule a trial, conduct the trial and issue a judgment that decides all the contested issues.
3. How Do I Protect Myself Financially?
There are numerous ways to protect your financial health. Much is dependent on how much you trust your spouse, and what their reaction might be to the actions you take with the marital assets. Some proactive steps include:
- Write down all the ways that your spouse might adversely affect your financial health. Be creative … what can your spouse do to hurt you? Then speak with your attorney about
preventative steps you may take to counter what you believe your spouse may do (ask your attorney whether there are court orders, like status quo orders, that might prevent the action that you believe your spouse is considering).
- Obtain your credit report. See if there are any debts that you did not know about. Your spouse may have obtained a new joint credit card by forging your signature.
- Check with all stock brokerages and financial institutions where you have assets. See if there have been any recent withdrawals that you did not authorize. Ask if you can put a “hold” on the assets and not allow withdrawals without your knowledge and consent.
- Check your credit cards. Take steps to prevent your spouse from charging on your account without your consent. Has their name removed from the account?
- Ask your attorney to seek a court order for maintaining the status quo regarding the marital finances.
4. Can I Represent Myself?
It is your absolute right to represent yourself in your divorce proceeding, but this is not recommended. If your spouse is represented by an attorney, it would be analogous to you doing your own dental work … it could be successful, but the risks are high. If there are children involved, or you have real property, you need an attorney to discuss your rights and obligations, and the ramifications of the options available to you. Do not use the advice of the attorney hired by your spouse. At the very least, negotiate with your spouse’s attorney for what you believe to be a fair settlement of the issues involved, and before you obligate yourself or sign anything, have the document reviewed by a competent attorney who you hire for the specific and limited purpose of reviewing the document.
5. Can My Spouse And I Use The Same Attorney?
Michigan Rules of Ethics prevent an attorney from representing both spouses in a divorce action. A conflict of interest would arise for any attorney trying to represent the best interests of both spouses. Each party in a divorce needs their own attorney to advise them according to their own unique and separate interests. It is possible for one spouse to hire an attorney early in the divorce process and have that attorney draft all the necessary documents. The other spouse can then hire an attorney later in the divorce process in order to review the documents that have been previously drafted. This plan only works in cases where there is very little conflict in the early stages of the divorce.
6. What Are The Grounds For Divorce In Michigan?
Michigan is a No Fault divorce state. The sole “grounds” that a court must find before it grants a judgment of divorce is that “there has been a breakdown in the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonably likelihood that the marriage can be preserved.” When people talk of “grounds” for a divorce, they usually are asking what kind of “fault” is required, such as adultery, or an abusive relationship. Michigan has no such “grounds” for obtaining a divorce. “Fault” or “wrongdoing” is not a basis for divorce in Michigan. It is not necessary to allege “fault” in any of the initial pleadings. However, “fault” is an important element in spousal support, child custody and property distribution.
7. Is There A Trial In Every Case?
No. In fact, most divorces do not proceed to trial. The majority of divorces are resolved through negotiation or mediation. Only the contested cases involving very difficult legal or factual issues proceed to trial. Most people resolve their differences with the help of their attorney. There are many reasons why people settle their cases without a trial. The cost of a trial is a big factor. Private mediation is often successful in resolving disputes. Additionally, the Friend of the Court caseworkers and referees often assist people in coming to a settlement of their cases. Seldom does any rational person want a disinterested judge making decisions for them that will forever affect their lives, and the lives of their children.
8. Do I Have The Right To A Jury Trial?
No. There is no right to present the issues of your divorce to a jury. In Michigan, a trial court judge will decide the issues in the case and write an order that will become the Judgment to be
entered by the County Clerk’s office.
9. Is There A Residency Requirement To Obtain A Michigan Divorce?
Yes. A judgment of divorce may not be granted unless one of the parties, either plaintiff or defendant, has resided in the state for at least 180 days, and the county of filing for at least 10
days immediately preceding the filing of the complaint.
10. How Much Will My Case Cost?
There is no way to accurately predict the cost of a divorce at the start of the case. Much depends on the difficulty of the issues, the time involved and the ability of the parties to resolve their own conflicts. There are two parts of every divorce: the emotional divorce and the legal divorce. Both parts affect the total financial cost. The legal aspects of the divorce are substantially easier to resolve once the drama caused by the emotional divorce is over. Only then do the parties get down to the business of how to fairly divide the assets/debts of the marriage, and how to parent the children after the divorce. Steps you can take to reduce your attorney fees:
- Organize and make copies of your financial, real property, credit card and tax documents
- Create a budget of your actual income and expenses with copies of documents that support your numbers
- Keep a diary of your involvement and conversations with your spouse and children
- Agree to mediate or arbitrate all or portions of your case
11. Child Custody. What Is It?
Child custody is most often described by two concepts. The first is “legal custody.” Michigan encourages judges to award joint legal custody to parents. This means that both parents would have a right to make decisions concerning such things as their child’s education, medical treatment, religious training or enrichment activities. The court also has the power to award
“physical custody” of the child to one or both parents. In establishing custody, the court reviews all of the facts that are presented, and then determines where the child will primarily live based on what the court believes will be in the best interests of the child using 12 best interest factors:
a) The love, affection and other emotional ties existing between the parties involved and the child.
b) The capacity and disposition of the parties involved to give the child love, affection and guidance, and to continue the education and raising of the child in his or her religion or creed, if any.
c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care and other material needs.
d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
f) The moral fitness of the parties involved.
g) The mental and physical health of the parties involved.
h) The home, school and community record of the child.
i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
l) Any other factor considered by the court to be relevant to a particular child custody dispute.
12. Alimony/Spousal Support. Does It Still Exist?
Yes. Alimony or Spousal Support refers to support paid by one spouse or former spouse to the other. The purpose is to meet the financial support needs of a party who is unable to fully
provide for their own support. Much is dependent on the discrepancy of income between the parties, the need of one spouse and the other’s ability to pay. These payments can either be
temporary, periodic, rehabilitative or permanent. Most often alimony/spousal support payments are taxable to the recipient and deductible by the payer.
13. Child Support. Who Decides The Amount?
In response to federal legislation, Michigan has adopted child support guidelines that establish the methods for calculating child support. These guidelines are designed to ensure consistency
and predictability in child support amounts. Though difficult to do, it is possible to deviate from these guidelines. The court may increase or decrease the amount of support as long as it gives
specific reasons for doing so. Primarily, the courts are seeking to balance the financial needs of the child, with the noncustodial parent’s ability to pay. The incomes of both parents are used in determining child support. Child support typically ends when the child graduates from high school, or turns 18 years of age, but not later than 19 1/2.
14. Dividing Property. Who Gets What?
Michigan is an equitable distribution state. This means that the court may distribute the marital assets of either party in any manner the court feels is fair and equitable under all the
circumstances of the case. Judges look at the following factors to determine what is “fair and equitable:”
- Past relations and conduct of the parties
- The length of the marriage
- The ability of the parties to work
- The source and amount of property awarded to parties
- The age of the parties
- The ability of the parties to pay spousal support
- The present situation of the parties
- The needs of the parties
- The health of the parties
- The prior standard of living of the parties
- Whether either party is responsible for the support of others
- General principals of equity
FAQS generally based upon article written by Robert B. Guyot, III, Michigan Family Law Journal, January 2007, Special Issue