FAMILY LAW
FREQUENTLY ASKED QUESTIONS
How long does it take to get a divorce in Michigan? Under Michigan law, a husband and wife may not be divorced in less than 60 days. This minimum waiting period cannot be waived. For divorces involving minor children, the waiting period is extended to 180 days, however this waiting period may be shortened by the Court upon a showing of appropriate circumstances.
What are the grounds for entry of a judgment of divorce? Essentially, Michigan has one ground for divorce: “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.” In this sense, Michigan is known as a “no fault” divorce state. However the term “no fault” may be misleading. If the parties reach a final settlement on all issues, fault may not be a factor. If there is a dispute about spousal support (alimony), division of real and personal property, child support, child custody or parenting time, fault may be considered by the trial court in its final ruling on these issues.
Are there alternatives to divorce? Yes. Litigants, particularly those with children, are strongly encouraged to attend marriage counseling and therapy prior to filing for divorce. Mr. Kobliska can recommend potential marriage counselors to you. In the alternative, you may request from the court a judgment of separate maintenance, which is sometimes referred to as a “legal separation.” A married person may also a petition for an annulment. These various possibilities require further discussion in view of the facts of your particular case.
How much does it cost to get divorced? The cost of your divorce case will depend upon a variety of factors, including the nature and complexity of your case, whether there are children of the marriage, the extent of money and property, the amount of debt, and many other potential issues. The difference between an expensive divorce and an inexpensive divorce is not usually related to the complexity of the case, but the degree of conflict in the case. Reducing the level of conflict will substantially reduce the cost to the parties.
Can I represent myself? A litigant always has the right to represent their own interests in court. There is a great deal of difference between whether someone “can” and whether they “should” represent themselves. Errant decision making in managing a case even in the early stages can cause irreparable damage on important and costly issues. It is important to note that Mr. Kobliska’s clients include licensed attorneys, who despite their knowledge of the law and legal procedure, rely upon Mr. Kobliska for his experience in handling difficult and complex matrimonial cases.
Is it better to be the first to file? There are advantages and disadvantages to “winning the race to the courthouse.” The initial cost of preparing and filing the court papers falls on the plaintiff. However, as the plaintiff, you have the ability to request certain orders from the court at the inception of the case which may set temporary rules regarding child custody, parenting time, payment of support, preservation of assets, and the like. Each case is dependent upon its own facts.
What is the process of a divorce?
1. The first, and most important, step in filing for divorce is the meeting with your legal counsel. For an attorney to properly represent you, it is necessary for you to give your lawyer all the facts relating to your case. It is equally important for your attorney to understand your objectives and point of view. It is critical for the attorney-client relationship to be built upon complete trust and honesty, and withholding information from your lawyer may affect the outcome of your case. You may share any aspect of your case with your attorney with the knowledge that your attorney holds this knowledge in total confidence, in accordance with the Michigan Rules of Professional Responsibility.
2. The next step is the filing of a Complaint for Divorce, which is accompanied by a Summons. The Complaint set forth the basic facts in the case, such as the names of the parties, the date of the marriage, the names and ages of the minor children (if any), and that there has been a breakdown in the marriage relationship.
3. In a divorce involving minor children, you will also have to sign a Verified Statement. The Verified Statement is provided to the Friend of the Court and contains the names and addresses of the parties and their employers and health care information for the minor children.
4. The filing party (the plaintiff) may request the entry of certain types of ex parte orders. Ex parte orders are interim orders which are entered by the court without a hearing. The most common types of ex parte orders relate to custody, parenting time, dissipation of assets and/or maintenance of the status quo. The types of orders which are appropriate in any given case are very dependent upon the facts of the specific situation. You should discuss the appropriateness of ex parte orders with your attorney.
5. After the documents are filed with the court and a Summons is issued, all of the legal papers must be served upon the opposing party (the defendant). In most cases, a process server is used to personally serve the papers upon the defendant. In other cases, the defendant simply formally acknowledges receipt of the papers.
6. Upon effective service of process, the defendant has 21 days in which to file a formal answer to the plaintiff’s complaint. If the defendant fails to formally answer the lawsuit, he or she will be in default and his or her ability to advance and protect their position will be restricted. There are important distinctions between a default in a typical civil case, and a default in a divorce or paternity matter, and you should discuss these differences with your attorney in the event that a default is entered for or against you.
7. Once an answer is filed, the contested matter will proceed through various stages of the court process. These stages could include an Early Intervention Conference (EIC), a Case Management Conference, attendant at a session of the “SMILE” Program (“Start Making It Livable for Everyone”), a Settlement Conference, and/or participation in facilitative mediation.
8. During the pendency of the case, the parties can engage in the process of discovery. Either party may make use of interrogatories, requests to produce documents, depositions (oral examination of parties or witnesses), subpoenas to third parties, and other forms of formal and informal discovery. Experts may be retained to appraise real estate, retirement assets, the value of a business interests, or other valuable assets such as artwork, collectible items, household furnishings, and the like. In many cases, an exchange of affidavits of assets and liabilities may be used to ascertain certain relevant facts about the case in lieu of formal discovery. The form and degree of discovery will depend upon the facts of any particular case, the desires of the client, and the attitude and direction of the opposing party.
9. The court will provide the parties with many opportunities for settlement during the pendency of the case. In the vast majority of cases, a negotiated or mediated resolution is reached. In those cases in which a settlement cannot be reached, a bench (non-jury) trial is held on all of the issues in dispute, and a judicial resolution is reached.
10. Whether by settlement or judicial resolution, a divorce has not been completed until a formal judgment is prepared and entered with the court. The Judgment of Divorce is the formal document through which the court speaks on all of the issues in the case.
11. Generally speaking, entry of the judgment completes the court process, but there may be a number of things yet to be done to effectuate its terms. This may include the execution and filing of deeds for the transfer of real property, the division of the bank accounts, signing and recording all necessary motor vehicle certificates of title, the physical division of personal property, name changes, changes in beneficiaries, and the formal division of retirement assets, among other things. In particular, many types of retirement plans, such as 401(k) plans and traditional defined benefit pension plans require the entry of a Qualified Domestic Relations Order (QDRO) or an Eligible Domestic Relations Order (EDRO). Each pension plan is different, and the proposed DRO(s) must match the terms of the plan. Extreme care must be employed when dividing pension assets, both before and after the entry of the Judgment.
12. A divorced person should review his or her will and other estate planning documents after the divorce, particularly if a will was prepared during the time of the marriage. If any trust documents during the time of the marriage, the trust documents must be revise your trust after the divorce to change the beneficiary designation. The statutory disinheritance of a spouse upon divorce does not apply to trust provisions. Also, you may wish to establish a trust to control your estate for your children rather than have your children directly receive your estate.
Will the divorce judgment be final as to all issues between me and my then-former spouse? Issues involving the disposition or money and property are generally final. Issues involving child support, child custody, parenting time (visitation) and spousal support (alimony) may be modified under certain circumstances. The burden of proof is different for each issue, and spousal support which is limited as to time and duration by an agreement between the parties may not be modifiable. See, Staple v Staple, 241 Mich App 562; 616 NW2d 219 (2000).
How will custody of my child(ren) be determined? This issue can be the most emotional and traumatic part of most divorce cases. One aspect is legal custody, i.e., the right to be legal parents of the child and share in decision-making involving important aspects of child rearing; and physical custody, i.e., the parent who is principally responsible for raising the child. Physical custody may be solely with one parent, or the court can order joint custody. The basis for determining child custody is “the best interests of the child.” Due to the extensive nature of custody disputes and the laws involved, this subject is best left to an in-depth discussion between attorney and client.
A party involved in a child custody matter should become acquainted with the Michigan Child Custody Act and study and be prepared to discuss the following 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 continuation of 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 deems the child to be of sufficient age to express a preference.
(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k) Domestic violence, whether or not it occurred in the child’s presence.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
Child custody orders are modifiable. The court will consider the time the child has lived in an established custodial environment (ECE) and what is in the best interest of the child. It should be remembered that the child’s preference, though an important factor, is just one factor to be considered in the 11 specific child custody factors cited above.
In instances in which joint legal custody is ordered, neither parent may move outside the State of Michigan, or move more than 100 miles from the child’s current legal residence, without a written agreement between the parties or an order of the Court. This is the so-called “100 Mile Rule.” Ay parent contemplating a move should consult with an attorney to discuss the possible ramifications.
How will time with my child(ren) be allocated between my former spouse and I after we are divorced? Except in very unusual situations, parenting time will be granted to the noncustodial parent. The judgment may order general “reasonable and liberal” parenting time, leaving it up to the parties to decide the dates and times, or it may provide for very specific parenting time. Either party may insist upon a specific parenting time schedule. If long distances must be traveled to exercise this parenting time, arrangements can be made to share the cost.
Will I pay or receive child support? The Michigan Child Support Formula is, under most circumstances, required to be used to determine the payment of child support between the parties. Calculations under the formula are made consideration of many different factors, including, the relative incomes of the parties, the custodial arrangement, the tax status of the parties, the number of children involved, the allocation of healthcare expenses, national estimates and averages of the cost of child rearing, and many other factors. Child support should continue until the child for whom support is paid attains the age of 18 years of age, or up to 19½ years of age if the child is attending high school on a full-time basis with a reasonable expectation of graduation. There may be grounds for deviation from the Michigan Child Support Formula in appropriate circumstances.
Who can claim the children as dependents for tax purposes? Under current law, the primary custodial parent is entitled to claim his or her minor children as dependents for tax purposes. The parties may agree that the noncustodial parent shall have this allowance and enter this agreement into the judgment. If the noncustodial parent is entitled to the allowance by the judgment, that parent must obtain each year, from the custodial parent, a signed IRS Form 8332, which must be filed with the noncustodial parent’s federal income tax forms. Only the parent taking the dependency exemption is entitled to claim the child tax credit and the interest deduction and tax credits for post-secondary education.
Will child support stay the same until the child reaches adulthood? Child support may be modified upon a showing of a significant change of circumstances relating to the support of the child. For example, the loss of a job, a job promotion, reduction in overtime, changes in child care and/or health care, may warrant a prospective modification of the child support amount. In addition, the Friend of the Court may set your case for a child support review if there have not been any changes in support for a long period of time.
How can I enforce payment of child support and/or spousal support? The Friend of the Court may assist a support recipient in the event that support is not paid on a timely basis. The Friend of the Court has certain the enforcement mechanisms available, including tax refund intercepts, suspension of driver and occupational licenses, and other means. In addition, your attorney may request and obtain a “show cause” order, to require the noncomplying party to appear before the court and demonstrate good cause why he or she has not remitted payment for support as ordered.
May I opt out of the Friend of the Court system? Parties may agree to provide for direct payments rather than have their payments processed through the Friend of the Court and MiSDU, provided that certain conditions are met. Even so, many courts are hesitant to allow parties to “opt out” unless the court is convinced that each party is making a fully informed decision, and opting in for all future payments is usually easily accomplished.
What is MiSDU? The Michigan State Disbursement Unit is the central processing unit for all child support and spousal support payments for the State of Michigan. The local Friend of the Court offices no longer process support payments.
Will I pay or receive alimony? Alimony, or “spousal support” as it is referenced in the Michigan statutes, is a sum of money usually paid by one spouse to another spouse for support and maintenance of the spouse, both during the pendency of the case and after. The factors considered by the court in awarding spousal support are as follows:
1. Past relations and conduct of the parties (the so called “fault” factor);
2. The length of the marriage;
3. The ability of the parties to work and their respective incomes;
4. The source and amount of property awarded to the parties;
5. The parties’ respective ages;
6. The abilities of the parties to pay spousal support;
7. The present situation of the parties;
8. The needs of the parties;
9. The parties’ health;
10. The prior standard of living of the parties and whether either is responsible for the support of others;
11. General principles of equity (“fairness”).
Although these factors are not codified in any statute, they are derived from the abundance of case law which has interpreted this area of the law, most notably: Sparks v. Sparks, 440 Mich 141, 485 NW2d 893 (1992); Beason v. Beason, 435 Mich App 791, 460 NW2d 207 (1990); Parrish v. Parrish, 138 Mich App 546, 361 NW2d 366 (1984).
There may be tax consequences to consider in relation to the payment or receipt of spousal support. Federal and state laws continually change, so you should consult with your accountant or tax preparer to determine the effect that spousal support may have on your tax situation.
Can I keep my health care benefits after divorce? If you have health care benefits prior to divorce through your former spouse’s employer, you may elect to retain those benefits at a group rate pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, Pub L. 99-72 (“COBRA”) provided that you follow specific requirements within 60 days from the date of entry of the judgment. Note that the provisions of COBRA apply only to employers who employ more than 20 employees and who maintain group health plans. See, 29 USC 1161(a); IRC 4980B(a).
How will property and debts be divided between my spouse and I? Ultimately, the Court must allocate the debts and debts of the parties in a “fair and equitable” manner. For reasons too lengthy to address here, it would be incorrect to assume that this means a 50/50 split. Property awards must be made with due regard to: (1) whether the property is “separate property” or “marital property;” (2) whether the was an antenuptial (prenuptial) or postuptial agreement; (3) the relative needs of the parties; (4) the nature of the specific property awarded; (4) the length of the marriage; (5) the contributions of the parties to the marital estate; (6) the age and health of the parties; (7) the life status of the parties; (8) the earning abilities of the parties; (9) the past relations and conduct of the parties; and many other factors.
My spouse has asked me to sign a settlement agreement , but I am not sure that I understand what it all means. What should I do? You should not sign any settlement agreement until and unless it has been reviewed by an attorney with substantial family law experience, and understand all of the implications involved.
I was never married to my partner. What happens now that we are splitting up? This issue arises more and more frequently as many people are eschewing the tradition of marriage in favor of a less formal arrangement. In addition, many same-gender couples who do not have the benefit of legal marriage available need to deal with various issues in the event that the relationship goes south. The considerable body of divorce law is inapplicable to these non-marital unions, which our Michigan Supreme Court has referred to as “meretricious relationships.” In the event that children are born to the couple, the Court may enter an order of filiation to establish paternity and provide for custody, parenting time and support. The disposition of real and personal property, debts and other related issues between the parties requires the advancement of various legal theories and arguments, depending upon the facts of your case. Mr. Kobliska has experience in handling these types of cases. It is nevertheless very important for any person contemplating entering into a cohabitation relationship, even on a temporary basis, to have a Domestic Partnership Agreement prepared and signed prior to entering into a cohabitation arrangement, pooling any assets, or entering into any joint liabilities.
These questions and answers are intended to provide brief, general answers to common questions. The answers may not be applicable to your situation, and as with any general rule, there may be exceptions that apply. As such, these FAQs are not a substitute for legal advice. Legal advice may only be rendered upon the establishment of an attorney-client relationship. If you have any questions, you should contact Mathew Kobliska for further information.
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