Doug Dinning can help lessen the emotional stress and the financial consequences that face our clients in this most difficult of times. Doug has handled divorce matters for over 30 years, from the simple drafting of pleadings that are reached by agreement of both parties to complex litigation involving businesses, tax questions and custody.

No Fault Divorce

Michigan has a "no fault" divorce law. In order to obtain a divorce in Michigan one spouse has to allege that 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. That bare recitation, without any testimony as to facts, is usually all the court needs to enter a Judgment of Divorce.

Fault is still a factor in a divorce, though. Fault can be used in determining spousal support and in the property settlement. Fault can also be relevant to awarding custody of any minor children.

Many people ask whether they are able to get a legal separation. In Michigan, you are able to obtain a Judgment of Separate Maintenance. These situations are rare. The reason for them being rare is that even though you file for separate maintenance, the other party can request a Judgment of Divorce which would preclude the court from entering a Judgment of Separate Maintenance. If a Judgment of Separate Maintenance is granted, neither party may remarry. If the desire to remarry occurs, one of the parties has to file for a divorce.

Another method of dissolving a marriage is to seek an annulment of the marriage which is usually a declaration that the marriage is void or voidable from the beginning. Grounds for annulment are typically fraud that goes to the essence of the marriage; incapacity, such as age, insanity or a prior marriage that has not been validly dissolved.

Procedure

A Michigan divorce is started by filing a Summons and Complaint.

The party who files the suit is known as the "Plaintiff". The party that is served with the suit for divorce is the "Defendant". All divorce cases are heard by the Family Division of the Circuit Court.

After the filing of the Complaint for Divorce, Orders regarding custody, child and spousal support, maintenance of the marital estate, and other items may be requested and entered with the Court to govern the handling of these items while the case is pending. Injunctions may also be entered. An Injunction restrains a party from doing some particular act and may restrain individuals from selling or disposing of assets or changing beneficiaries. Many of these Orders require consent of the opposing party or a hearing before the Court.

No Judgment of Divorce can be entered until the expiration of sixty (60) days from the date of filing. If there are minor children, there is a six (6) month waiting period before the entry of the Judgment of Divorce. The six month waiting period may be waived upon a showing of good cause to the Court.

In order to enter a final Judgment of Divorce, the Court must take testimony, under oath, from at a minimum, the Plaintiff.

The Friend of the Court is an arm of the Circuit Court, which assists in the enforcement and processing of divorce matters. It is also the agent for the collection and distribution of child and spousal support. The Friend of the Court is frequently called upon to perform investigations and recommendations as to child support, custody, spousal support and less frequently, property distributions.

In a typical divorce action, approximately 6 to 9 months will be spent attempting to determine all the assets and liabilities of the parties. This determination may by using Interrogatories which are written questions requiring responses under oath. Experts may be required, including appraisers, actuaries, accountants, to determine values of the various assets. Oral testimony, under oath, taken before a court reporter may often be required to obtain further information concerning the assets and liabilities. The procedures to be used in determining the methods for delineating the assets and liabilities is a decision reached jointly with the attorney and the client in order to minimize costs in relation to the benefit that may be obtained.

Most cases are settled by voluntary agreement of the parties. If it appears that there is a reasonable likelihood of settlement, the parties may hold a joint meeting and attempt to resolve as many issues and concerns as possible. In other circumstances, a Court Mediator may be appointed to help resolve the matter. Mediation can be conducted either at the Courthouse or at the offices of the individual attorney who is appointed the Mediator. In other circumstances the parties may wish to bypass mediation and go directly to Arbitration, which would be binding on both parties and not appealable to the Court. Arbitration must have the agreement of both parties, be in writing with executed advice and waiver of rights.

If a settlement is reached, the parties will often be asked to agree to an outline of the agreement, which may be placed on the Court record or written up into an outline of an agreement to be signed by all parties. The attorneys will then prepare a final, formal Judgment of Divorce which will incorporate all the terms and conditions. That agreement would be presented to the Court and sworn testimony would be taken. A Judgment of Divorce is the final document and the most crucial document arising out of the divorce. The Judgment deals with all issues pertaining to the marriage, including many ancillary and miscellaneous issues.

If the parties cannot agree, the Court will hold a Trial and the Judge will make all of the decisions. Trials are rare.

Spousal Support, Also Known As Alimony

Spousal support is used for the support and maintenance of the other spouse. It is usually paid by the higher earning spouse to the lower earning spouse. Spousal support can be awarded to the husband. The factors used in awarding spousal support are as follows:

1. the past relations and conduct of the parties (fault)
    

2. the length of the marriage
    

3. the ability of the parties to work and their respective incomes
    

4. the source and amount of property awarded to the parties
    

5. the ability of the parties to pay spousal support
    

6. the present situation of the parties
    

7. the needs of the parties
    

8. the health of the parties
    

9. the prior standard of living of the parties and whether either is responsible for the support of others
    

10. the age and educational level of the person claiming spousal support

Spousal support is usually taxable to the recipient and deductible by the other party. For deductibility of spousal support to occur, it must terminate upon the death of the other spouse. As spousal support is in the nature of support, it is not dischargeable in bankruptcy. Other terms and conditions may be attached that would terminate the payments, including remarriage or living in marital-like relationship.

Another type of support is known as alimony in gross. This type of spousal support is for a term and amount certain. It cannot be modified in the future and is usually used as a type of rehabilitative payment. It guarantees to the recipient spouse that it cannot be modified, under any circumstances, and it guarantees to the payor that once that obligation is satisfied, they have completed their obligation to the other spouse in regard to support and the Court cannot change that.

Another type of spousal support is in the nature of health insurance. Often the higher earning spouse has paid health insurance through their employer. As such, the other spouse may elect what is often referred to as COBRA health coverage, in which that party can continue their health care benefits by paying the monthly amount of the coverage to the employer. That can extend up to 36 months. The party responsible for that payment is subject to negotiations and/or an award by the Court as to the payment of same.

Child Support

Child support Orders are based upon a State recommended child support guideline. Child support utilizes both parents' income in determining the amount of support. As to the ultimate question of custody, the Court looks to eleven factors that are contained in the Child Custody Act in determining an ultimate award of custody between the parties.

Child support is modifiable upon a change in circumstances. Child support is generally ordered until a child reaches the age of 18 or until the child graduates from high school, as long as the child has not reached 19 ½ years and is regularly attending high school full-time, with a reasonable expectation of completing sufficient credits to graduate. The child must be residing with the payee of support or at an institution. Child support is determined based upon the Child Support Formula Manual, known as the Child Support Guidelines. Child support payments are most often paid through the Friend of the Court, which provides for an automatic Income Withholding Order which is sent to the employer for the collection of the child support. The party receiving child support is usually entitled to take the minor children as dependents on their income tax returns unless an agreement is otherwise reached entitling the non-custodial parent to declare one or more of the minor children as dependents.

Child Custody

The Child Custody Act sets forth 12 factors as follows in deciding which parent will be awarded custody of the minor children:

1. The love, affection, and other emotional ties existing between the parties involved and the child.
    

2. The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the education and raising of the child in its religion or creed, if any.
    

3. 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 the medical care, and other material needs.
    

4. The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
    

5. The permanence, as a family unit, of the existing or proposed custodial home or homes.
    

6. The moral fitness of the parties involved.
    

7. The mental and physical health of the parties involved.
    

8. The home, school, and community record of the child.
    

9. The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
    

10. 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.
     

11. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
     

12. Any other factor considered by the court to be relevant to a particular child custody dispute.

All parents are advised as to joint custody and that the Court shall consider an
award of joint custody. In their determination they look to the previously recited factors, along with a consideration as to the parties ability to cooperate and generally agree concerning important decisions effecting the welfare of the children. Joint custody does not eliminate the payment of child support. Child support is based upon the number of overnight periods with each party.

After a Judgment of Divorce has been entered, the Court may modify the child custody arrangement. The Court must first look to see if there is an established custodial environment. If there is, there must be a showing of clear and convincing evidence that there is compelling reason to change the custody. A child preference is only one of the factors reviewed by the Court and that child's preference alone will not be sufficient to generate a change of custody.

Parenting Time

The non-custodial parent is awarded parenting time with the minor children. The award may be a general statement that it be reasonable and liberal parenting time with it to be arranged between the parties. Other Judgments may provide very specific parenting time rights to the non-custodial parent. Minor children may not be removed from the jurisdiction of the Court without the Court's approval. The children are also prohibited from being moved more than 100 miles, in state, from where the child resided at the time of the divorce complaint. Parenting time is not conditioned upon the payment of child support, they are two separate items.

Property Division

In determining property division, the Circuit Court will consider the following factors:

1. the length of the marriage
    

2. the contributions of the parties to the marital estate
    

3. the ages of the parties
    

4. the health of the parties
    

5. the life status of the parties
    

6. the necessities and circumstances of the parties
    

7. the earning abilities of the parties
    

8. the past relations and conduct of the parties
    

9. general principles of equity

There is no requirement that the Court divide the property exactly on a 50/50 division. The Court is allowed to use principals of equity in the division of the property.

Attorney Fees

Attorney fees are billed on an hourly basis. Total attorney fees are often based upon a number of different factors including the difficulty involved, the amount of the marital estate, the skill and expertise required to develop the case, along with the possibility that the attorney may have to relinquish other work in order to pursue your representation. All disbursements made on your behalf will also be billed, including court costs, filing fees, etc. Many fees, including appraisals, expert fees, etc. will be arranged for directly between yourself and the expert, depending on the circumstances. You are charged for consultations, phone calls, research, drafting and attendance at all hearings. As part of the settlement negotiations, your spouse may be requested to provide a portion of your attorney fees. Any amounts awarded from the other spouse would be credited to the outstanding fees, assuming they are paid by your former spouse.

Conclusion

Doug Dinning will do whatever is necessary to assist you through this difficult time. If, even after filing, you want to pursue reconciliation, Doug is more than happy to assist and can recommend counselors and others that may be able to assist you in saving the marriage. Our goal is to keep you informed throughout the proceedings, including choices that may conserve expenses without compromising your representation and ultimate result.

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