| Divorce Process in Michigan | | | | motion being filed or a motion hearing. This can happen |
| A divorce begins with the filing of a lawsuit or | | | | because the court decided itself to issue an order. It |
| complaint for divorce. This is “served” on | | | | can also happen because the parties agree to an |
| the other party by giving him/her a copy of the | | | | order and “stipulate” to its entry. If the |
| complaint and summons and having him/her sign the | | | | judge sees the signatures of both attorneys on a |
| back of the summons to acknowledge receipt. | | | | proposed order, the court will almost always sign the |
| Otherwise, a person called a “process | | | | order without a hearing. Once an order is entered, it |
| server” must personally hand the summons and | | | | must be followed. Even if it is appealed, the order is in |
| complaint to the other spouse or the complaint and | | | | effect unless the Michigan Court of Appeals suspends |
| summons can be sent by certified mail. When a | | | | its enforceability. |
| receipt is signed for the certified mail, the court | | | | During the pendency of the case, the parties are |
| considers it “served.” Service must be | | | | expected to discuss legal custody, parenting time, child |
| completed within 90 days of filing or the court will | | | | and spousal support, and property distribution. Usually |
| dismiss the case for “lack of progress.” In | | | | the attorneys are able to discuss these issues even if |
| the end, the court must receive some sort of evidence | | | | the parties cannot. While the court has the Friend of |
| in the court file (called a “return of | | | | the Court available when it comes to support and |
| service”) to prove that the pleadings (i.e., the | | | | custody/parenting issues, it is more difficult to decide |
| summons and complaint) were received by the | | | | property issues. There are three tasks to be |
| defendant. The judges are assigned randomly to | | | | completed on the issue of property during the case: |
| cases. You find out immediately who your judge will be | | | | 1. All property and debt must be identified and listed. |
| when the complaint is filed. You cannot do anything to | | | | 2. Property must be valued. Sometimes the parties |
| “pick” a particular judge. | | | | can “stipulate” or agree to a value; |
| After “service” of the complaint and | | | | otherwise, it must be valued by an appraiser or |
| summons, the defendant/other spouse must file an | | | | qualified third party. |
| “answer.” The “answer” | | | | 3. Property must be distributed in the end. If the parties |
| admits or denies all of the allegations in the complaint. | | | | can agree as to who gets what, the court will usually |
| The answer must be filed with the court within 21 days | | | | accept that. Most assets are divided between the |
| of service unless the complaint and summons were | | | | parties “in kind.” If neither party wants an |
| served by certified mail. In that case, the defendant | | | | asset or is able to afford it, then the asset should be |
| has 28 days to answer the allegations in the complaint. | | | | sold. If both parties want an asset, then they must |
| Within a month of filing the complaint for divorce, each | | | | submit this issue to the court or consider mediation or |
| party is expected to file a verified financial statement | | | | arbitration to decide it without court intervention. |
| setting forth the assets and liabilities of the parties. This | | | | (Mediation and arbitration are different processes. With |
| may be later amended as information becomes | | | | mediation, a trained person helps the parties reach |
| available, but it is expected to be a good faith estimate | | | | agreement. If they do not agree, then the court |
| of the net worth of the marital estate. | | | | decides and there is no prejudice to anyone because |
| Once the court knows that both a complaint and an | | | | he/she did not accept a proposal in mediation. With |
| answer have been filed, it will schedule a “pretrial | | | | arbitration, a trained person hears the parties’ |
| conference.” The client does not have to attend | | | | positions and possibly considers other evidence. Then |
| this conference, but the attorneys for both sides must | | | | the arbitrator makes a decision, and the parties (in |
| attend. At that time, the court generally sets deadlines | | | | advance and in writing) agree to be bound by the |
| for exchanging witness lists, for the close of | | | | decision. A decision by an arbitrator cannot be |
| “discovery,” and for a “settlement | | | | appealed and can be enforced by the court. |
| conference” date as well. | | | | After the time for discovery has expired, the court will |
| “Discovery” is a set of procedures for | | | | require the parties to appear in person for a settlement |
| getting information in a case. Discovery is governed by | | | | conference. Sometimes the court will also order the |
| “court rules.” Discovery can include | | | | parties to meet with a mediator to try and settle a |
| interrogatories and requests for production of | | | | case. There is no obligation to settle, but if a party |
| documents from the other side. It can include | | | | does not participate in settlement proceedings in good |
| subpoenas to third parties. It can include | | | | faith, it could backfire on that party in the end. |
| “depositions” of parties to the case (the | | | | Further, if there are issues relating to children or |
| husband and wife) and of non-parties (like employers, | | | | alimony, the court generally refers the issue to the |
| day care providers, neighbors, and relatives). Discovery | | | | Friend of the Court (“FOC”). The FOC |
| can also include independent medical examinations | | | | caseworkers will schedule an interview. Sometimes |
| (“IME’s”) like an evaluation by a | | | | they speak with parties individually for one hour each. |
| therapist or psychiatrist. Unlike interrogatories and | | | | Other times the caseworker will ask the parties to |
| requests for production of documents, a party can | | | | come together and will meet with them for 1--1-1/2 |
| only do an IME if the court permits it. To get a court | | | | hours. The attorneys are permitted to attend these |
| order for an IME, the requesting party must file a | | | | interviews but generally do not come. If minor children |
| motion with the court and go through a hearing. | | | | are involved and they are old enough, the FOC |
| During the pendency of a case, there are some | | | | caseworker will interview them as well in private. After |
| occasions where the parties must appear in court for | | | | the interviews are concluded, the FOC issues a |
| a hearing (that is not the actual “trial”). A | | | | “recommendation.” The court is usually |
| judge has the power to require the parties to appear. | | | | willing to enter that recommendation as an interim |
| The parties themselves can also set up a hearing by | | | | order of the court while the case is pending. If either |
| filing a “motion” for some sort of relief | | | | party objects to the recommendation, the court can |
| with the court. Most judges appreciate having the | | | | either set the matter for an evidentiary hearing before |
| parties personally appear at “motion | | | | the court itself or order the parties to go through a |
| hearings” although parties are under no legal | | | | FOC “referee hearing.” A referee hearing |
| requirement to be there unless they have been served | | | | takes place at the FOC offices in the courthouse. It is |
| with a “show cause order.” If a party fails | | | | not open to the public. Witnesses must leave the room |
| to appear for a “show cause hearing,” | | | | immediately after testifying. The hearing officer is an |
| then the court can issue a bench warrant for their | | | | attorney employed by the court. After the hearing, the |
| arrest. | | | | referee writes a recommendation and issues it. The |
| After a motion hearing, the judge makes a decision on | | | | parties have 21 days to accept the recommendation |
| the relief requested. The judge can decide the issue on | | | | or file objections with the court and schedule a hearing |
| the spot or take the matter “under | | | | on the objections. If objections are filed, then the court |
| advisement” and issue a written decision within | | | | holds an evidentiary hearing and makes its own |
| a few days or a few weeks. If the court rules the day | | | | ruling—which may be consistent with the |
| of the hearing, then the court expects the attorney for | | | | referee recommendation or different. |
| the party who filed the motion to draft an order that is | | | | There is eventually a trial in each case if it is not |
| consistent with the court’s ruling. This | | | | settled. Approximately 90% of all divorce cases are |
| requirement applies even if the judge ruled against the | | | | settled before trial. If the parties are able to settle |
| party who filed the motion although sometimes the | | | | some of their issues, the court is generally willing to |
| court will ask the prevailing party to draft the order. A | | | | hear and decide only the unsettled issues. After the |
| party cannot contest the language in the order if it is | | | | court rules, then the parties have 21 days to file an |
| consistent with the judge’s ruling. The only way | | | | appeal with the Michigan Court of Appeals if they |
| to contest the ruling at that point is to take an appeal. | | | | object to the final decision. Very few cases get to this |
| Sometimes orders are entered by the court without a | | | | point. |