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YOUR CHOICES FOR DISSOLVING YOUR MARRIAGE IN THE STATE OF MICHIGAN

DIVORCE

In the State of Michigan, all divorces in Michigan are no fault.  This means you need only state in your complaint for divorce and testify at the final hearing 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” and your divorce will be granted.

SEPARATE MAINTENANCE

In the State of Michigan, you may file to obtain a legal separation.  This process is called “separate maintenance”.  The procedure for obtaining a Judgment of Separate Maintenance in Michigan is practically the same as the procedure for a divorce.  The difference between a divorce and a Separate Maintenance action is when a Judgment of Separate Maintenance is entered you are divorced from everything except the bounds of matrimony.  If you have a Judgment of Separate Maintenance in Michigan rather than a Judgment of Divorce, you cannot remarry (as you remain legally married to your spouse).  If you receive a Judgment of Separate Maintenance in Michigan and then later decide you do want a divorce, you will need to file a new case for a divorce.  If during the separate maintenance action, the Defendant request the court for a divorce, the case will be changed to a divorce action, and will proceed and be completed as a divorce action.

ANNULMENT

Annulments declare that the marriage is void and therefore never legally existed.  It is rare for a court to grant an annulment, as grounds must be proven.  Based on the difficulty of proving these grounds, a party should consider filing a divorce action.

GROUNDS FOR AN ANNULMENT IN MICHIGAN

In Michigan, the grounds for an annulment are incapacity due to age, bigamy, incapacity due to mental or physical condition, duress, fraud, kinship, and improper ceremony.  Most of the grounds for annulment in the State of Michigan are difficult to prove, and few annulments are granted for that reason.

To receive an annulment in the State of Michigan, you will need to prove one of the grounds for your request for an annulment.  Then the court must decide if you have met your burden of proof, and will grant or deny your annulment.

The grounds for annulment in the State of Michigan are expanded below.  You would be required to show one of the following when seeking an annulment:

INCAPACITY DUE TO AGE: In Michigan, persons under the age of 16 are not allowed to legally marry unless they obtain a court order. If one of the parties are under 18, they must have consent of their parents or guardians to legally marry.

BIGAMY:  Bigamy takes place when one spouse was already married to another person at the time of the subsequent marriage. This type of marriage is completely void.

INCAPACITY DUE TO MENTAL CONDITION: One party was legally incapable of entering into a contract when they married.  Incapacity can include physical incapacity and mental incapacity. If one spouse was mentally incapable of entering into marriage, another person may file the annulment case on behalf of the incapable person. However, if either spouse who was incapable at the time of marriage later becomes capable and the couple continues to live together, then the marriage will become valid.

INCAPACITY DUE TO PHYSICAL CONDITION:  If one spouse suffered from a physical incapacity, defect or infirmity at the time of the marriage, the marriage may be annulled if a case is brought to court within two years of the marriage date.

CONSENT OBTAINED UNDER DURESS: One of the parties was forced into the marriage when they married.

CONSENT OBTAINED BY FRAUD: One of the parties knowingly failed to disclose that they could not have children, concealed a criminal record of a crime of moral turpitude, entered into the marriage with the intent to commit immigration fraud, or failed to understand they were actually marrying at the time of the marriage.

KINSHIP: A marriage is invalid if it’s between a man and woman who are related closer than first cousins, including step family relations (blood or affinity).

IMPROPER CEREMONY: The person who performed the ceremony did not have the legal authority to perform marriages.

OTHER REASONS: The ability of a party to freely consent to the marriage, foreign law violations, and other reasons that have to do with the validity of the marriage.

EFFECT OF ANNULMENT: When a judge orders a marriage annulled, the effect is that the marriage never existed and that the couple was never married. This is different from divorce, where a marriage exists but is then ended by a court order.

THE DIVORCE PROCESS

THE PROCESS – IN A NUT SHELL

• The Complaint for Divorce is filed.
• The Defendant is served with the Complaint for Divorce.
• Defendant must be served within 90 days from the date the Clerk of the Court issues the   Summons: service may be accomplished either through a private process server, any   third party over the age of 18, or via U. S. Mail (certified/return receipt – restricted delivery).
• After the Defendant has been served, he or she will have 21 or 28 days to file an Answer  (21 days if personally served and 28 days if served through U.S. mail)
• If the Defendant files an Answer – then the case will be set for a scheduling conference     and settlement conference.  If the case does not settle at or before the settlement conference, a trial will be set.

THE VERIFIED COMPLAINT FOR DIVORCE

To start a divorce proceeding, you must file a Verified Complaint for Divorce and Summons in the county where you reside. In a Verified Complaint for Divorce the party filing the divorce (Plaintiff) will be required to state the following:

• That they have resided in Michigan for 180 days or more
• That they have resided in the county they are filing the divorce action in for 10 days or more
• The date, city, and state where the marriage was performed
• Name and birth dates of children
• Date of separation (if no longer living together)
• Identify any other county or state that has jurisdiction over the children
• Identify any other county of state that the party has another child custody proceeding in
• Identify any person not a party to the divorce who has physical custody of the children or claims legal or physical custody or parenting time rights with the children
• List any information that could affect a child custody proceeding, including a proceeding for enforcement, a domestic violence proceeding, a protective order, termination of parental rights, or adoption in any state
• A claim for spousal support (if you are requesting spousal support from your spouse)
• A claim for attorney’s fees (if you are requesting your spouse pay for your attorney’s fees)
• And 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”

The Verified Complaint for Divorce will be signed by the Plaintiff, in front of a notary public.

FILING THE DOCUMENTS WITH THE CLERK OF COURT

Once the Plaintiff has reviewed and signed the Verified Complaint for Divorce, the Verified Complaint for Divorce and Summons is filed with the clerk of the court, and the Summons is issued.  At the time of filing, there will be a filing fee paid to the clerk of the court. This filing fee varies (a divorce with no minor children is less to file than a divorce with minor children).

THE SUMMONS

The Summons is a document that is filed with the Verified Complaint for Divorce and served on the Defendant (responding party to the divorce).  The Summons notifies the Defendant that an action has commenced against them, and sets forth the time limits within which the Defendant must file an answer.

The Summons also identifies the date the Summons was issued and the expiration date of the Summons.  If the Summons is not served on the Defendant before the expiration date, the Summons is no longer valid.

SERVICE OF THE DIVORCE DOCUMENTS

After the Verified Complaint for Divorce has been filed with the clerk of the court, and the Summons has been issued, both documents must be served on the Defendant.  Service can be in person (voluntary or by a process server) or by mail.

TIME LIMITS FOR DEFENDANT TO FILE AN ANSWER

After the Defendant is served with the Summons and Verified Complaint for Divorce they will have:

•  21 days to file a written answer with the court – if served personally

•  28 days to file a written answer with the court – if they were served by mail or served outside of the state

AFFIDAVIT OF SERVICE

After the Defendant has been served, the Plaintiff must prove to the court that the Defendant has been served with the Verified Complaint for Divorce and Summons.

The Plaintiff “proves” to the court service has been completed by filing an Affidavit or Service with the clerk of court.  The Affidavit of Service shows the court the name of the person who served the Defendant, as well as the date, time, and location of service of the Defendant.

If the Defendant accepted service voluntarily, an Acknowledgment of Service must be completed and filed with the court.

DEFAULT

After the Verified Complaint for Divorce and Summons are served on the Defendant, they must file an answer with the clerk of the court within specific time limits (see “Time Limits for Defendant to File an Answer”).   If the Defendant fails to file an answer within the time allowed, a default will be entered against them.  After the default has been entered by the court, the Plaintiff can proceed with the divorce case, and request the court for a default judgment to be entered (after the required statutory wait period).

WAITING PERIOD

Michigan law establishes waiting periods depending on the individual circumstances.

• If you do not have minor children of the marriage: There is a two-month waiting period after the filing of the Verified Complaint for Divorce has been filed.
• If you have minor children of the marriage: There is a six-month waiting period after the after the filing of the Verified Complaint for Divorce has been filed.

A Judgment of Divorce cannot be entered earlier than these established times.

TEMPORARY ORDERS

Temporary orders are orders that remain in effect through the pendency of the divorce case, or until a new court order is entered.  Temporary orders may consist of establishing custody, parenting time, and child support, or address financial issues such as payment of the marital debt, household expenses, and spousal support.

• Temporary custody and parenting time order: Until there is a temporary order on custody and parenting time, both parties have equal rights to the children.  It is important in the early stage of the divorce to establish custody and a specific parenting time schedule.  Temporary orders on custody and parenting time will avoid the inevitable war of fighting over the children.

• Temporary order for child support: A temporary order on child support may be needed if the parties no longer reside in the same household.

• Temporary order on household expenses and debt: Whether the parties are living in the same household or not, they must address how the household expenses and marital debt will be paid.  Judges do not want to see assets be dissipated because of lack of payment (such as mortgages and car payments).  And, debt must be paid, and paid on time, to preserve credit scores.

• Mutual restraining order: A mutual restraining order is a document prohibiting parties from disposing or hiding the parties’ assets.  By having the court sign a mutual restraining order, it alleviates the concerns that either party may do so legally.

DISCOVERY PROCESS

Discovery is part of the pre-trial phase of the case where each party requests documents and information from the other side.  This process allows both parties to obtain information necessary to reach a fair and equitable settlement.  If a settlement is unsuccessful, the information exchanged may be used at trial.

DOCUMENTS REQUIRED FOR THE DISCOVERY PROCESS

The following is a checklist of documents you should compile for your attorney.  This checklist may not contain everything your attorney will need, as the discovery process is tailored to the specific facts of each case.  Here is the most basic checklist of documents used in most divorce cases:

1. List of all bank accounts.  Provide account numbers, current balances, and statements for the last three months for each account.  (savings, checking, CD’s, credit unions)
2. Copies of titles and registrations for all vehicles, boats. etc.
3. Blue book values on all vehicles and boats.  Print reports for private party values for each vehicle and/or boat.
4. Warrant Deed and statements reflecting mortgage balances owed for all real estate.
5. Copy of Appraisal for home (if within last 3 years).
6. Copies of life insurance policies.
7. Most recent property tax statement and any recent appraisal reports for all real estate.
8. Retirement account statements (401k’s, IRA’s, 403B’s, pensions, profit sharing, etc.).
9. Statements for investments (stocks, bonds, mutual funds, etc.).
10. Information for inheritance received during the marriage.
11. List all credit cards and other debts (mortgages, car loans, home equity lines of credit) indicating whether joint or individual, and balance owed, and provide copies of statements for the last three months for each.
12. Documents for all other indebtedness.
13. Any financial statements recently prepared (ex: for loan applications).
14. Recent paystubs for both spouses.
15. Recent credit report to ensure that all debt is accounted for in your settlement.
16. The last three years’ tax returns with W-2’s and schedules attached.
17. Business interests, corporate stock certificates, etc.
18. Franchise agreements.
19. Employment Contracts.
20. Lease agreements.
21. Copy of household budget if used.
22. Prenuptial or postnuptial agreements.
23. If you have children under 18:
    – Verification of yearly daycare costs
    – Information on, or copy of, current health care cards
    – Cost of employer provided health insurance with breakdown for costs for self and cost for self with family

FORMS OF ALTERNATE DISPUTE RESOLUTION

MEDIATION

Mediation is an alternate dispute resolution process wherein a neutral third party assists the parties in reaching a binding agreement.  In the Mediation process, the parties maintain total control of the outcome.  Mediation is confidential, cost effective, and the written agreements are legally binding.  No decision is handed down from judge, allowing the parties to be creative with the terms of their agreement.  Since the parties created their agreement, they are more likely to abide by the terms of the agreement.

COLLABORATIVE

The parties resolve their issues in a respectful manner, using a team approach.  The team assists the parties in crafting solutions in the best interest of each party, without involving the judge to make their final decisions.  The collaborative divorce process is confidential, and the parties maintain total control of the outcome.  The collaborative process is cost effective, as it can be much less expensive than arbitration or litigation.

ARBITRATION

This alternate dispute resolution process is where a third party reviews the case, case law, and information provided and makes a final, binding decision.  This process brings the case to a close, and eliminates direct confrontation/conflict with the other party.  When a case is sent to arbitration, the parties are bound by the arbitrator’s decision.  The parties may not like the arbitrator’s decision and will have little or no recourse but to accept decision.  Therefore, the parties have no control of the outcome.

IF PARTIES ARE UNABLE TO REACH A SETTLEMENT  THE CASE PROCEEDS TO TRIAL

When you are unable to resolve your issues through mediation, then a trial will be necessary.   The following is an outline of what a day at trial resembles:

FIRST

OPENING STATEMENTS: Opening statements are an opportunity for both sides to make an opening statement to the judge, briefly presenting their issues and the facts they intend to present.  An opening statement is an outline presented by the attorneys, giving an overview of what they intend to show the judge at trial.

SECOND

WITNESSES:  Now that opening statements have concluded, witnesses will now take the stand to testify.  In a divorce trial, the plaintiff (the person who filed the divorce) will present their witnesses, evidence, and exhibits first.  Once they have completed presenting their case, the defendant will call their witnesses and present their evidence and exhibits.

THIRD

CLOSING ARGUMENTS: Once both parties have presented all of their evidence, exhibits, and witnesses, it is time for closing arguments. Similar to opening statements, closing arguments are where each attorney will provide statements to the judge that explains the facts that were presented at trial, apply the facts presented to the Michigan law, and argue to the judge for a particular outcome.

LASTLY

WRITTEN ORDER: After the trial has ended, the judge will review and take into consideration all of the testimony, exhibits, and evidence presented, apply the Michigan case law, and issue a written order.  This written order is the judge’s ruling on the issues.  After the written order, the plaintiff’s attorney will prepare the judgment of divorce.  This judgment of divorce must comport with the findings of the judge’s written order.  Once the judgment of divorce is submitted to the court, the judge will sign the judgment of divorce and the parties are officially divorced.

JUDGMENT OF DIVORCE

A Judgment of Divorce is the legal document that finalizes the divorce process.  It is the written court order that formally dissolves the marriage.  The Judgment of Divorce contains the terms of the judge’s ruling after trial on all aspects of the divorce, or the specific terms of the of the parties’ agreement.

DISCLAIMER

Note, the contents provided is this Divorce Guide are for general information purposes only, and should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of Schmitt Law, PLLC.  You should contact your attorney to obtain advice with respect to a particular issue or concern.  Use of and access to this Divorce Guide does not create an attorney-client relationship between Schmitt Law, PLLC and the user or browser.