DIVORCE - AN OVERVIEW
The following material is intended to answer some of your questions about divorce proceedings, generally it is not intended to answer specific questions about your particular case, as each case is different.
The dissolution of a marriage may be a traumatic experience, and your attorney or attorneys, are well aware of the emotional involvement of the parties. Though we are not behavioral specialists, we attempt to relieve your anxiety by attempting to assist in solving the problems, which confront you during these proceedings.
In order to properly represent you, it is absolutely necessary for you not only to provide us with the facts concerning your matter, but we must know your wishes and we welcome your viewpoints. Withholding information from your lawyer may affect the outcome of your case, so we advise you to be completely candid with us. Remember, that a fiduciary relationship exists between attorney and client.
Please be fully advised that though we will counsel and advise you throughout the entire proceedings, the final decision regarding your case must be made by you. Our experience has shown that most divorce cases are settled, which means in those matters the parties eventually, through their attorneys, reach an agreement, which is placed upon the court's record. Never agree to something you do not understand nor something you feel you are forced to agree to. Your consent to an agreement must be voluntarily made, after consultation with your attorney. After an agreement is placed upon the record, it is extremely difficult to vacate.
Finally, as your representatives, we are here to advise and inform you, cite the options and alternatives available to you, process your divorce matter, assist you in decision-making, and cooperate with you in attempting to obtain the best possible results in your behalf
Grounds for Divorce
Michigan is known as a "no-fault" divorce state; however, the words "no-fault' may be misleading. If the parties reach a final settlement on all issues, fault is not a factor. If there is a dispute as to alimony, property, support, visitation, or custody, fault may become an active ingredient in resolving these issues. That is the reason your attorney may go over with you a history of the indiscretions of the parties.
Basically, Michigan has one ground for divorce, which is as follows: "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 court, some judges require a detailed showing of the marital breakdown; i.e., that the matrimonial objects have been destroyed and there is no chance for a reconciliation. Other judges require only one brief recitation of the facts or merely an assertion that your marriage is dead, and you will never live with your spouse as Husband and Wife).
In Michigan, we have provided also for Separate Maintenance actions, which are generally seldom processed. The procedure is relatively the same as in a divorce matter, except that neither party may remarry. Further, the law provides that if one party institutes a Separate Maintenance suit, and the other party files for divorce, the court will only consider the case as a divorce matter and cannot enter Judgment of Separate Maintenance.
We also have annulment proceedings in Michigan, which invalidates a marriage. Marriage may be void from the inception, or are voidable depending on the circumstances. The grounds include incapacity to marry such as insanity, bigamy, under age, or any type of fraud that goes to the heart of the marriage. Parties desiring an annulment must not cohabit, after having discovered the impediment to their marriage. If you have any questions about Separate Maintenance or annulment, please advise us of same, as the following material basically concerns divorce.
The initial filing of a divorce case may include the following documents:
- Summons . This notifies the other spouse that a suit has been started and he or she has 21 days to respond or a default may be taken.
- Complaint . This document states the names of the parties, where, when, and by whom you were married, names and birthdays of children (if any) wife's and husband's name before marriage, length of residence in county and state, date of separation, grounds for divorce, a statement as to property, and the relief requested (a party must reside in Michigan for 180 days and in the county where suit is started for at least 10 days).
- Affidavit of Service and Return of Service is filed when service is made.
- Affidavit . This informs the court as to whether a previous action of divorce between the parties has been filed.
- Statement to the Friend of the Court . This is to inform the Friend of the Court of the essential facts (not necessary in cases where Friend of the Court Services are not required).
- Affidavit concerning a child or children's living quarters during the past 5 years and that no custody action is pending regarding child (only needed where there are minors).
- Record of Divorce . This is a statistical record required by the state.
- Injunctions . Only requested where needed to refrain spouse from committing certain acts. Your attorney will explain this procedure to you in detail and ask if you want an Injunction.
- Ex Parte Orders . This may be obtained for temporary custody, support, etc. an objection timely filed to the Ex Parte Order will negate the effectiveness of the Order until a hearing on this matter.
- Affidavit of Ex Parte Order . A sworn statement that the facts stated in order to obtain the Ex Parte Order are true.
- Filing Fee of $150.00 . If there are children, the filing fee is $230.00. There is also the cost of serving papers and entry of Judgment. Later on, there may be other costs for services such as services for appraisers, actuaries, accountants, depositions, etc. You will be advised before any of these expenses are incurred, so you may negate them.
- Notice of Hearing, Praecipe, Motions, and $20.00 FilingFees as interim relief requires a hearing. A Motion is a plea to the court for some type of relief. A Praecipe is merely a form requesting that the matter be set for hearing. Notice of Hearing merely advises that a hearing will be held.
The Plaintiff is the party who starts the lawsuit and the Defendant is the person against whom the case is started. The Friend of the Court is an arm of the court, which is used to assist the Court. They usually make recommendations as to alimony, support, custody, and visitation rights. They also collect and distribute alimony and support payments. They also may seek enforcement of court orders dealing with support, visitation rights, and alimony. The court may use the Friend of the Court for other miscellaneous duties.
After the Complaint and Summons are served, the Defendant may file an answer to the Complaint, which is, in effect, a paragraph by paragraph response to the Complaint. Once the answer is filed, the case is contested (in some jurisdictions a Praecipe must be filed with the answer). If no action is taken by the Defendant, an order of default is entered, indicating the Defendant's lack of response, and the matter becomes an uncontested divorce case. The Defendant may desire not only to answer the Complaint, but desire to file his or her own Complaint. This is known as a CounterClaim and this must be answered by the Plaintiff.
A divorce cannot be granted in less than 60 days. Where there are minor children the parties must wait 6 months. However, the 6-month period may be waived upon a proper showing of circumstances warranting same. No divorce is granted without a court hearing as to the truth of the statements made in the Complaint. A witness is not necessary if the matter is uncontested when heard by the Court.
Temporary orders for custody, support, alimony, mortgage payments, medical payments, visitation, injunctions, and other relief may be requested at any time during the time you start your case and a Judgment of Divorce is entered. A temporary injunction restrains a party from doing something. There is an injunction restraining a party from selling, disposing or dissipation of assets. Other types of injunctions may be requested.
Temporary orders of support are usually based on a state recommended chart. Generally, alimony and support are based on needs and ability to pay. The life-style of the parties is also taken into consideration. In regard to child custody disputes, there are eleven factors listed in the child custody act. The procedures and preparations of such a case are much too involved for this discussion, and are left to further discussions with your attorney.
The Court may also award temporary fees to assist a party with their costs of obtaining counsel. This relief is usually obtained in the same way as any other motion and may be part of a motion requesting other relief
During The Pendency of the Divorce
This period is usually spent in defining the issues and trying to resolve them. We also attempt to find the net worth of the parties and the general financial status of the family. Interrogatories may be sent out requiring answers under oath from the recipient, which may, in part, request complete financial data. Depositions maybe taken (with consent of client) to obtain further information from the other spouse or those that have the needed information. Appraisers, actuaries (if pensions are involved), accountants or behavioral people may be used (with the client's prior consent) not be done hastily, but you will be given the opportunity to study the proposed settlement. The attorney will advise you as to the likelihood of acceptance of your proposals of what a court may do.
If settlement is not reached at this point, the court may appoint a mediator to help resolve the matter or the parties may agree to a mediation. If no agreement is reached, the mediator makes a recommendation to the court, in rare instances, an arbitrator is appointed and his recommendation is binding on both parties.
The attorney may call a meeting with both parties present, and try to resolve as many issues as possible. This is a voluntary process, and either party may decline to attend.
If settlement is reached, the parties will be asked to sign a property settlement form containing the provisions of the settlement, or they may be asked to approve the final Judgment. Further, the parties may be required to approve the settlement in court, before the judge, after it is placed on the record.
The Judgment of Divorce is the most important document you will receive. After a settlement is reached and/or the case is tried, the Judgment of Divorce will be entered by the court, as your final decree, granting you a divorce. It will also contain clauses dealing with such matters as alimony, custody, child support, visitation, insurance, dower rights, property settlement and other miscellaneous clauses. If a settlement has been reached, you must carefully read and examine this Judgment, and have your attorney explain it to you before you approve it.
Alimony is a sum of money usually paid by one spouse to another spouse for the support and maintenance of that spouse. The factors considered by the court in awarding alimony are as follows:
- The 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 the parties.
- The age of the parties
- The ability of the parties to pay alimony
- The present situation of the parties
- The needs of the parties
- The health of the parties
- The prior standard of living of the parties and whether either is responsible for the support of others.
- General principles of equity
Generally, Judgments of Divorce in which alimony is not granted must either expressly reserve the question of alimony or rule that neither party is entitled to alimony.
Regular or periodic alimony clauses in the Judgment of Divorce are modifiable at any time. When limitations are placed in the Judgment regarding modification, it is questionable whether or not these limitations will be honored by the court. Recent decisions say these limitations may not be honored. Alimony may be raised, lowered, or cancelled. A modification is based upon a showing of a change in circumstances, which would warrant a modification.
Regular or periodic alimony is usually taxable to the recipient, and is deductible by the payor. The phrase "payment until death" must be part of the alimony clause, if it is to be considered as taxable alimony. This type of alimony is not subject to bankruptcy action. It may have qualifying clauses such as "payable until remarriage."
Another type of alimony, referred to as Alimony in Gross, has all the attributes of a property settlement however, it is not taxable to the recipient, it is not deductible by the payor, and it is not modifiable. It may be subject to being discharged in bankruptcy. This type of alimony is for an amount certain and has no qualifying clauses such as "payable until remarriage". The court will look to the intent of the parties to determine the nature of the alimony.
There are many tax consequences and restrictions in regard to alimony and Alimony in Gross, which should be explained to you by your attorney or your accountant. As tax laws and their interpretation continually change, as well as State laws and their interpretations, your attorney cannot guarantee any tax consequences resulting from your divorce proceedings and the Judgment of Divorce.
Alimony is usually paid through the office of the Friend of the Court. This enables a party to obtain an accurate record of these payments. Also, it makes it easier to request assistance from the Friend of the Court in the event that paymentsare not forthcoming, or if a spouse denies receiving said payments.
Enforcement of regular or periodic alimony payments is usually instituted by an Order to Show Cause. The procedure will be explained to you by your attorney, upon request. Alimony in gross is more difficult to enforce, and there are other procedures available for enforcement.
In regard to health care provisions, your attorney will explain to you, upon request, your options including your right, if applicable, to elect COBRA Health Care.
The custodial parent is entitled to take the minor child or children as dependents for all tax purposes. The parties may agree that the non-custodial parent shall have this allowance and enter this agreement into the Judgment. If the non-custodial parent is entitled to the allowance by the Judgment, said parent must obtain each year from the custodial parent, a signed Form 8332, which must be filed with the non-custodial parent's other federal income tax forms.
Child support is modifiable on the same basis as alimony. This support is usually ordered, until the minor reaches the age of 18 years, or graduates from high school, so long as the minor child regularly attends high school on a full-time basis with a reasonable expectation of completing sufficient credits to graduate from high school while residing on a full time basis with the payee of support or at an institution, but in no case after the child reaches nineteen years and six months of age, or until further order of the Court. Enforcement of payments is instituted by an Order to Show Cause.
Child support is based on the Michigan child support formula manual. Non-payment of court ordered support may lead to a contempt of court citation, resulting in a jail term.
If there is an arrearage of child support payments, medical expenses, etc. the Judgment of Divorce must contain a provision preserving this arrearage. The same provision holds true for any monies owing under any temporary order in order to preserve a temporary order, it must be so ordered in the Judgment of Divorce. If it is not so ordered, it is cancelled.
It should be further noted that every child support order now provides for the immediate and automatic withholding of child support payments from any source of the payor's income.
Visitation is generally granted to the non-custodial parent. The Judgment may state that general visitations are granted and leave it up to the parties to decide the dates, or specific visitation hours and dates may be written into the Judgment. If long distance must be travelled to exercise this visitation, some arrangements can be made concerning the cost of same. Enforcement of visitation rights is by an Order to Show Cause. Judgments of Divorce provide that the minor child may not be permanently removed from the jurisdiction of the Court without the Court's approval. To move the child from the state, the custodial parent must petition the Court for an Order granting same. Visitation/Parenting Orders are modifiable upon a showing of a change in circumstances warranting same. There is also a provision in the law for the makeup of visitations that have been wrongfully denied, and contempt of court action against the offending parent that can lead to a fine or jail term.
The parties usually arrive at a settlement of all their property rights after negotiation or after mediation. If settlement is not reached, the matter will be decided by the court after the trial is concluded. Again, you are advised that you must be absolutely sure that you understand and accept the settlement as written, or placed on the record in open court, as property settlements are not modifiable, except in cases of fraud, clerical error, mistake, or gross unfairness in the initial trial. If your property includes retirement or pension plans, then you may exercise your rights under the qualified domestic relations order procedures.
Property settlements are enforceable through provisions provided in the Judgment, by execution, show cause, garnishment, etc. These procedures may be further discussed with your attorney.
In determining property issues, the court will usually consider the following:
- duration of marriage;
- contributions of the parties to the marital estate;
- age of the parties;
- health of the parties;
- life status of the parties;
- necessities and circumstances of the parties;
- earning abilities of the parties;
- past relations and conduct of the parties; and
- general principles of equity.
This issue is the most emotion and traumatic part of most divorce cases. There is sole custody, joint custody, "bird nest" custody, and many other forms. The basis for determining child custody is "what is in the best interest 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 with your attorney.
A party involved in a child custody matter should become acquainted with, study and be prepared to discuss the following factors enumerated in the Child Custody Act:
- The love, affection, and other emotional ties existing between the parties involved and the child.
- The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
- The capacity and disposition of the parties involved to provide the child with food, clothing, medical care and other remedial care recognized and permitted under the laws of this state in place of medical care, and other marital needs.
- The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
- The permanence, as a family unit, of the existing or proposed custodial home or homes.
- The moral fitness of the parties involved.
- The mental and physical health of the parties involved.
- The home, school, and community record of the child.
- The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
- 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.
- Domestic violence, regardless of whether the violence wsa directed against or witnessed by a child.
- Any other factor considered by the court to be relevant to a particular child custody dispute.
When there are custody disputes the parents must be advised as to joint custody.
- At the request of either parent, the court shall consider an award of joint custody, and shall state oilier cases joint custody may be considered by the court. The court shall determine whether joint custody is in the best interest of the child by considering the following factors:
- The factors enumerated in the above.
- Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.
- If the parents agree on joint custody, the court shall award joint custody unless the court determines on the record, based upon clear and convincing decisions affecting the welfare of the child.
- If the court awards joint custody, the court may include in its award a statement regarding when the child shall reside with each parent, or may provide that physical custody be shared by the parents in a manner to assure the child continuing contact with both parents.
- During the time the child resides with a parent, that parent shall decide all routine matters concerning the child.
- If there is a dispute regarding residence, the court shall state the basis for a residency award on the record or in writing.
- Joint custody shall not estimate the responsibility for child support. Each parent shall be responsible for child support based on the needs of the child and the actual resources of each parent. If a parent would otherwise be unable to maintain adequate housing for the child and the other parent has sufficient resources, the court may order modified support payments or a portion of housing expenses, even during a period when the child is not residing in the home of the parent receiving support. An order of joint custody, in and of itself, shall not constitute grounds for modifying a support order.
- As used in this section, "joint custody" means an order of the court in which one or both of the following is specified:
- That the child shall reside alternatively for specific periods with each of the parents.
- That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.
Child custody orders are modifiable. The court will consider the time the child has lived in a stable environment 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 factors cited above.
My fees are based on the Legal Canons of Ethics.
Since an attorney has no way of knowing how much time must be spent on your case, I cannot estimate with specificity what your ultimate fee will be at the conclusion of your case. My fees are based, pursuant to the aforementioned Canon, on a number of factors, which includes: the amount and nature of the services rendered, the time, labor and difficulty involved, the character and importance of the litigation, the amount of assets and value of the estate affected, and the requisite professional skill and expertise exercised by your attorney as well as novelty and difficulty of the questions involved and the results obtained. An hourly rate will be quoted to you, which may be helpful in assessing the amount of fees due. You will also be responsible for filing fees, service of pleadings, appraisals, expert witness fees, etc. You will be charged for consultations, correspondence, hone calls, office and research work, court time, filing, and hearings. In the event your spouse is ordered to contribute to your attorney fees, you will be given credit on the amount your spouse pays. A lawyer shall not enter into an arrangement for, charge or collect a contingent fee in a divorce case.
Many matters may arise after the case is concluded for which counsel should be retained. These matters may be for enforcement of support, alimony, visitation, or property provision. Further, Michigan permits personal injury actions for physical or emotional injuries inflicted by a spouse or former spouse during the marriage or afterwards.
Many divorce cases end in a reconciliation of the parties. If there is viability in your marriage and a chance to save it, we will be pleased to recommend marriage counselors to you and assist you in every possible way to effect this reconciliation. If, on the other hand, you believe the marriage is over, we will do our utmost to obtain a Judgment of Divorce that is satisfactory to you.
As divorce proceedings today are difficult, and extensive work may be necessary, I may use a team effort, other attorneys or paralegals in the office who are available to assist me at the office, or in court. However, I will oversee and advise on all work performed.
This document, in effect, touches the basic elements of divorce and divorce procedure. It is not to be considered as the last word on the subject, but merely as a helpful guide.
As an attorney for over 26 years, I have had substantial experience and expertise in the field of family law, and I am aware of the pressures and the personal difficulties faced by a person involved in the divorce process; I will attempt to ease and hopefully eliminate the cause of some of these problems. If you have any questions, please do not hesitate to call or arrange for an appointment.