The following are the basic steps in a Michigan divorce. This is a general guide to the process. Due to the facts of your case, there may be additional steps or some of the steps may be avoided. If you have any questions, please call us at (248) 584-0400.
1. The first step is to file a Complaint for Divorce. The Complaint states the basic facts about the parties, such as names of the parties and their minor children, the dates of marriage and separation and a statement that there has been a breakdown in the marital relationship. The Complaint must also state that the party filing the Complaint has lived in Michigan for 180 days and in the county in which they are filing for 10 days. You will need to sign the Complaint for Divorce.
2. The person filing the Complaint is identified legally as the Plaintiff. The other spouse is identified legally as the Defendant. In most divorces, there is no advantage or disadvantage to being either one.
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. Along with the Complaint, Ex Parte Orders may be entered. Ex Parte Orders are orders entered by the court based solely on the allegations of the spouse who files the Complaint. The orders remain in effect only if the Defendant fails to file objections within 14 days. Ex Parte Orders are used to establish temporary child custody, child support, parenting time and other issues related to the children. Ex Parte Orders can also be used to prevent the parties from dissipating assets, or compelling the parties to continue contributing to the maintenance of the marital home.
5. After the Complaint for Divorce is filed, it must be served on the spouse, along with any Ex Parte Orders. The spouse can sign an “Acknowledgement of Service” or a process server can be hired to serve the spouse with the Complaint. In an amicable divorce, we encourage our clients to have their spouse sign an Acknowledgement of Service. Being served with divorce papers by a process server can frequently be viewed as an hostile act and we prefer to use this method only when a spouse is uncooperative or the situation is not amicable.
6. Once the Complaint for Divorce is served upon the spouse, he or she has 21 days to file an Answer with the court. The Court Rules states that in the Answer the Defendant must either admit or deny each of the allegations in the Complaint. If the spouse fails to file an Answer, he or she will be in Default and will not have legal standing to contest any of the issues in the divorce. However, Michigan law requires that the Judge reach a finding that the property settlement in a Judgment of Divorce is “fair and equitable.” Therefore, a party in Default still has standing to contest a property settlement in a divorce. (add hyperlink)
7. In Oakland County divorce cases involving minor children, there is an appearance at the Friend of the Court, which is scheduled 56 days after the Complaint is filed. First, the parties must appear in front of a Friend of the Court Referee for an Early Intervention Conference (EIC). The purpose of the EIC is to provide the parties with an overview of the Friend of the Court. If there are unresolved temporary issues related to the minor children, the Referee may try to resolve those issues.
After the completion of the EIC, the parties will attend a session of the SMILE program. SMILE stands for Start Making It Livable for Everyone and is a program designed to assist parents in minimizing the impact of the divorce on the children.
Parties in divorce cases with minor children in Macomb County will also attend the SMILE program and in Wayne County, the parties will have to attend the Kids First program. In Macomb and Wayne Counties, the Friend of the Court will provide a number of dates for the SMILE/Kids First programs for parents to choose from. For a small fee, parents in Wayne County can view the SMILE program on the internet.
8. The next step is Discovery. In Michigan divorces, the courts require full disclosure of the parties’ assets. Each party is required to disclose all of their assets, usually through Interrogatories (written questions) or Depositions (a meeting in which the attorneys can ask questions face to face). The parties can also use subpoenas to obtain wage and pension information from employers and to obtain financial information from banks or investment firms. At this stage, experts may also be retained to appraise real estate, the value of a family business or other valuable assets. Under Michigan divorce law, if a party intentionally fails to disclose an asset, the Judge can award that entire asset to the opposing party, even if the asset is discovered after the Judgment has been entered and the divorce is final.
9. During and after Discovery, the parties will attempt to reach a settlement. If a settlement cannot be reached, the Judge will appoint a mediator, who will work with the parties to try and reach a settlement. In Oakland, Macomb and Wayne Counties, it is mandatory to attend mediation before the first Trial date.
10. Once the parties reach an agreement, the attorneys will draft a Judgment of Divorce which will contain all of the provisions the parties agreed upon. One of the parties will be required to attend a brief court hearing in which the person will testify regarding the allegations in the divorce and to the terms of the Judgment. Once the Judgment of Divorce is signed by the Judge, the parties are divorced.
11. In a Michigan divorce without minor children, the parties must wait 60 days from the date the Complaint was filed before the Judgment can be entered. In divorces with minor children, the parties must wait 180 days from the date the Complaint is filed, but this can be waived by the Judge if the parties agree that it is in the best interests of the children to do so.
12. Retirement Benefits. If either party has retirement benefits in the form of a traditional defined pension plan, 401K or other type of retirement plan, Federal law requires a separate document called a Qualified Domestic Relations Order (QDRO) or an Eligible Domestic Relations Order (EDRO) when there is a government pension. These documents are frequently entered after the Judgment of Divorce has been entered. Unfortunately, each pension plan administrator has their own language that they require in a QDRO or EDRO and getting the parties to agree on the correct language and having the language approved by the plan administrator can be difficult. Therefore, many Michigan divorce attorneys hire a QDRO expert to prepare these documents. However, we continue to work with our clients until the QDROs or EDROs are entered by the court and all issues remaining in the divorce are resolved.