Any individual wishing to start a domestic relations action must file the correct papers according to the specific Michigan statutes and the rules ("Michigan Court Rules"). There are often many complicated issues and legal matters involved in a domestic relations case including property and debt division, Child Custody, Visitation, and Child Support. The Court will not require a party to use an attorney to start or defend an action but it is advisable to have an attorney to give you advice, file the correct papers, and follow the specific court procedures mandated by law to prevent losing rights associated with the Divorce process. Further, whenever a Pension or Alimony is a factor it is necessary to have an attorney who can advise you of your rights to a spouse's Pension or future earnings. An attorney will also be necessary to split any pension by obtaining a certified Qualified Domestic Relations Order ("QDRO") and serving it on the Plan Administrator. Pension division is an extremely complex area of the law and Perrone Law, P.C. has extensive experience in dividing Pension Benefits. The following is a general overview of the stages in the Divorce process.Michigan Divorce Process Plaintiff's Complaint
Every domestic relations matter begins with the plaintiff filing a complaint which asks the court to grant an order. For example, a complaint may ask the court to grant a divorce, provide for child or spousal support, start an out-of-state support collection effort, or grant an order for custody of a child. The defendant is the person against whom the complaint is filed.Service of Process
The court rules provide that the defendant be served with a copy of the complaint and summons. The summons is an instrument used to commence a civil action. The summons notifies a person that an action has been started against them, that they are required to answer the complaint that was filed, and appear on the day named.
The typical way to give notice are
- for a third party to personally hand the papers to the defendant, or
- send them by certified mail as may be required by Michigan Court Rule.
If the person served does not file an answer to the complaint within the time permitted by Michigan Court Rule, they may lose the right to have their concerns heard by the court. This could result in the court entering an order giving the Plaintiff everything he or she requested in the complaint. It is essential therefore that the defendant make prompt response to the complaint.Domestic Relations Procedures Divorce
A person who wants to end their marriage must have a circuit court enter an order ending the marriage. To grant the divorce, the court must find that there has been a breakdown in the marriage relationship to the extent that the objects of matrimony have been destroyed, and the parties cannot live together as husband and wife. At least one of the parties must appear in court to testify that this breakdown really does exist. In Michigan, a divorce can be granted even if one of the parties does not want the divorce. A divorce ends the legal relationship between a husband and wife. The divorce, however, does not end the parties relationship, even though the relationship will change.
Many decisions must be made before a divorce is granted. These decisions may include:
- Who will make decisions, provide daily guidance and take care of the children? (custody)
- What contact will children have with a parent they don't live with? (parenting time)
- How should the property gathered during the marriage be divided? (property settlement)
- How will financial responsibilities for the children be divided? (child support)
- What amount, if any, should one party contribute toward the support of the other, either permanently or temporarily? (spousal support-alimony)
- How will the children's medical, dental and other health care expenses be paid? (health care coverage)
- Will the wife take back her maiden name? (restoration of maiden name)
- Will children be allowed to move from the State of Michigan? (domicile)
- The parties may be able to reach an agreement by themselves or by talking to their attorneys.
- Mediation is available through the Court, through private attorneys skilled at mediation, or through private agencies to resolve the issues of property and custody.
- The Friend of the Court referee may hear issues of support, custody and parenting time, and make recommendations to the judge when requested to do so.
- The judge may help in settling a matter by having a pretrial or settlement conference.
- The judge will hold a hearing or trial on the issues that have not been resolved.
Recommendations on custody, parenting time and child support will be made by the Friend of the Court office, if the circuit court orders the office to do so.Conciliation
In some cases a court may immediately enter a child support, custody and parenting time order upon the request of a plaintiff or defendant. In Ingham County this is usually done only after a Conciliation Conference at which the parties must appear and present their positions. Whether or not the parties are in agreement, the Friend of the Court Conciliator will make a timely recommendation to the Court, which will become a temporary order. Either party may request the court to hold a hearing to change the order by filing objections within 14 days after they receive the order. If objections are not filed within 14 days, the order automatically becomes a temporary order of the Court. Even if an objection is filed, the Court=s order remains in full effect until the Court modifies it, so that support, custody and parenting time orders will be legally binding on all parties.Reconciliations and Dismissals
Not every divorce matter that is started ends in a divorce. If the parties are attempting to work out their differences and wish to have enforcement of their court orders suspended, they must provide the Court and the Friend of the Court with written notice of their RECONCILIATION. A reconciliation notice does not dismiss a divorce action, but suspends it. If the parties have resolved their differences and wish to stop the divorce action, they must file an Order of Dismissal with the circuit court and provide a copy to the Friend of the Court. In either situation, if children have received public assistance, arrangements to pay any back support must be made with the Friend of the Court who will continue to enforce previous Court orders until all public assistance is paid to the State.Judgments
A judgment contains the orders of the court which address support, parenting time, custody, property and other related issues. There is a minimum 60 day waiting period prior to conclusion of divorce cases without children and a 6 month waiting period for divorces where there are minor children before a final Judgment may enter. If the matter is contested the proceedings will take longer to complete because a trial will have to be held. At trial, the Judge will hear and determine the issues presented, and a written Judgment will be presented and signed by the Judge. The divorce judgment can thereafter be changed only by the judge. Once a judgment has been entered, parties must comply with its terms. The language in your judgment takes precedence over earlier orders, or over any Aguidelines@ contained in this Handbook. If you are dissatisfied with your judgment, you may wish to contact an attorney. Once an order has been entered, a party has 21 days in which to file an appeal with the Court of Appeals.Modification of a Judgment or Order
After a judgment or order has been entered in a divorce action, there are some orders that can be modified (changed). These include: custody, parenting time, support, and change of domicile provisions. A change can only occur if:
- both parties have signed an agreement (stipulation and consent agreement), which, if approved by the court, will be entered as an order or Amended Judgment; OR
- a motion has been filed, a hearing has been held and the court enters a written order granting a change. Note: Only a Judge can sign orders or judgments.
The Friend of the Court has a responsibility to make recommendations to the Court in certain circumstances for child support, custody and parenting time modification.Child Custody
A custody order, or that portion of your divorce judgment pertaining to custody, specifies with who the child shall live, and other conditions surrounding custody. Parents are encouraged to reach their own agreements regarding custody. When parents cannot agree, the Judge must decide by considering all of the factors enumerated under the Michigan Child Custody Act [MCL 722.21]. In a disputed custody case the Friend of the Court will be making recommendations in writing to the Court.Court Procedures
A custody order, or that portion of your divorce judgment pertaining to custody, specifies with who the child shall live, and other conditions surrounding custody. A number of custody arrangements are possible. The most common are:Joint Legal Custody
Means that parents will communicate and cooperate with one another and attempt to reach mutual decisions regarding major issues affecting their children. This decision making process includes, but is not limited to major medical decisions, educational decisions and religious upbringing. Most Judges grant joint legal custody, unless there is some compelling reason not to do so such as child abuse or non-involvement in the life of the child.Joint Physical Custody
Means that children live with one parent part of the time and the other parent part of the time. This time does not have to be equal. The parent who has care of the children at any given time is responsible for routine daily decisions regarding the children.Primary Physical Custody
Means that the children live primarily with one parent.Sole Custody
Means that the children live with one parent and that parent is responsible for making the major decisions regarding the children.Conciliation
The Ingham County Friend of the Court offers a procedure called Conciliation. It is a conference that is held with the parties and a trained conciliator from the Friend of the Court office. It is designed to help parties more quickly resolve disputes of child custody, parenting time and support issues. The trained conciliator first attempts to use mediation techniques to help the parties resolve disputes. Unlike mediation, however, conciliation is not a voluntary process, but is required by the Court. If the parties reach an agreement, the conciliator will prepare an order reflecting that agreement. In the event the parties cannot reach agreement on the disputed issues, the conciliator will prepare a recommendation to the Court on the disputed issues. If this is a new case, the Court will immediately enter the conciliator’s recommendation as a temporary order. If either party objects to that recommended order, they may have a referee hearing by filing objections within 14 days after they receive the order. If there already is a court order in the case prior to the conciliation, the Court will not immediately enter the recommended order. The Court will wait at least 21 days before entering the order to give the parties an opportunity to file objections to the recommended order. If objections are filed within the 21 days, a referee hearing will be held. Even if an objection is filed, the Court's most recent Order remains in full effect until and unless the Court modifies it so that support, custody and parenting time orders continue as legally binding on all parties.Best Interest of Child Factors
- 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 to continue the education and raising of the child in his or her religion or creed, if any.
- The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material 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 considers the child to be of sufficient age to express preference.
- The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
- Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
- Any other factor considered by the court to be relevant to a particular child custody dispute.