Michigan Divorce 101 – Understanding Your Rights
Divorce can be a time of grieving and anger about the past – and uncertainty and fear about the future. Knowing what to expect as you navigate these uncharted waters can help you have confidence that everything will once again be fine. In this article Oakland County attorney and divorce specialist Starla Zehr provides an overview of the divorce process – so you understand the basic key issues you will be facing.
Starting a Divorce
A divorce is started by filing a document called a “Complaint” in Circuit Court. The other spouse, who is then “served” with a divorce Complaint, must file an answer with the Circuit Court within 21 days. Failing to do so results in “Default” – which means they will not be allowed to have a say in any issues involved in the divorce.
While the divorce is still pending, the presiding judge usually requires that the home – including the mortgage, utility bills, groceries, etc. – continue to be maintained and paid for as it has been during the marriage.
The Divorce Process
Next the “Discovery” process begins – in which each spouse has the right to “fact find” and request what property, income, assets or other circumstances the other spouse has.
After discovery is finished, the attorneys for the two spouses will help them negotiate a “Settlement” – which is basically “who gets what”. If the spouses and their attorneys can’t reach an agreement, the judge will usually refer them to a “mediator”. This specially trained, neutral third-party divorce attorney attempts to assist the spouses in reaching an agreement.
Mediation is not binding – and if the parties do not reach a settlement, the case will have to go to trial where a judge determines the outcome of divorce terms.
Judges do not like to hear divorce cases because of the complex, personal and emotional issues. So in Michigan, including Oakland County, less than 3% of divorce cases actually end up going to trial.
Property Division in a Divorce
Marital property is any property acquired during the marriage. It does not matter which spouse actually paid for it – nor does it matter whose name it is in (titled). “Marital property” is typically divided as close to equally as possible between the spouses.
But, many equitable “factors of fairness” could cause the Judge to depart from an even 50-50 split of marital property. ” Fault, behavior, age, children living at home, and the health of the parties are just some factors the judge will consider.
Additionally, an important exception to division of property is that each party is allowed to keep their own “non-marital” property that they brought into the marriage. They may also keep 100% of inheritances and gifts IF they were kept separated during marriage.
Spousal Support or “Alimony”
Alimony – technically now called Spousal Support – may be decided upon by the parties. Or it may be awarded by the Judge in addition to the property settlement. The judge will consider these factors when determining if (and how much) alimony will be awarded:
- the length of marriage;
- the ability of parties to work;
- the age of parties;
- the conduct of the parties;
- what property was awarded to the parties;
- the spouses’ ability to pay alimony;
- the prior “standard of living” of the parties.
Most often, alimony is only ordered for a limited time period – to provide support for a few years while the spouse finds employment or gets an education.
Child Custody in Divorce
There are two types of child custody: legal custody and physical custody. Legal custody includes the authority to make decisions over matters affecting the child. These decisions include medical, education, and religious, issues. Michigan judges, including those in Oakland County, strongly favor joint legal custody.
Physical custody, however, addresses where the children will live. If the parties cannot agree on physical custody terms, the judge will consider the following factors and make a custody decision:
- love, affection and other emotional ties;
- capacity to give love, affection and guidance to the child;
- capacity to provide food, housing, clothing and medical care;
- length of time the child has been in a stable environment;
- moral fitness of the parties;
- mental and physical health of the parties;
- reasonable preference of the child (if of sufficient age to express a preference)
The Friend of the Court is an agency of the Oakland County Circuit Court that assists with child related issues in divorce cases. When parties cannot agree, they will conduct an investigation and make recommendations regarding custody, visitation and support.
Child Support in Divorce
The parties can agree on a child support amount. When an agreement cannot be reached, the amount of child support to be paid in Michigan is determined by a formula set in the Statewide Child Support Guideline. This formula takes into consideration the income of both parents, as well as the needs of the child.
The Judge must use the amount calculated under this formula – unless there is a compelling reason to deviate from it.
When a Divorce Becomes Final
Michigan has a mandatory waiting period before a divorce can be granted and become final if there are no minor children, the waiting period is 60 days after the filing of the complaint. For divorces with minor children, the waiting period is longer: six months. This six month waiting period can only be waived by the Judge for “good cause”.
In Michigan, finalizing or “granting” a divorce requires a court hearing. Both parties are given the opportunity to be present, and a document entitled Divorce Judgment must be signed by the Judge for the divorce to be “final.”. The Divorce Judgment is the legally binding document that contains the property settlement, child custody, child support, and spousal support (alimony) arrangements.
Oakland County Divorce Attorney
This is just a thumbnail sketch of the many complex legal issues involved in the divorce process. The best way to understand – and protect – your rights in a divorce is to have an experienced and caring divorce attorney, like Starla Zehr, by your side.