Getting your divorce case started with the appropriate court can be a complicated undertaking, especially considering the often emotional impact of deciding to end a marriage. The experienced family law attorneys at Kelly & Kelly are not only equipped to handle the legal aspects of your divorce case, they are also well-seasoned in helping navigate this transitional time in your life from a personal perspective and with an individualized approach.
After you file for divorce, your spouse will need to be served with the Summons and Complaint, and any additionally documents filed with the court at the time of the initial filing. Service can be accomplished in a few different ways depending on your spouse’s level of cooperation, and whether or not he or she has retained counsel.
If you and your spouse have children under the age of eighteen when you file for divorce, there is a mandatory “waiting period” of 6 months from the time you file for divorce. However, under certain circumstances, you may request the court to waive the 6 month waiting period.
If you and your spouse do not have children under the age of eighteen when you file for divorce, there is a mandatory waiting period of 60 days from the time you file for divorce. There can never be a waiver of this 60-day waiting period.
It is important to know however, that the divorce process can sometimes take much longer than these minimum waiting periods depending on the facts of your case.
Prior to the entry of the final order in your case, called a Judgment of Divorce, if you and your spouse agree that you wish to reconcile, and no longer wish to proceed with a divorce, you can request the court to dismiss your case. However, if you decide at a later date that you wish to continue with the divorce process, you must refile your case and start over from the beginning.
Filing for divorce is not an inexpensive endeavor. Filing fees alone vary by county, and the cost associated with hiring an attorney to assist you with the process will vary depending on how cooperative and amicable you and your spouse are, and the degree of complexity of the issues specific to your case. However, using an attorney to assist you in your divorce proceedings is beneficial to ensure that everything is done in the most efficient and expedient nature, and can prevent you from expending a lot of money to fix mistakes that were made by persons lacking expertise in this complicated area of the law.
In a divorce case in Michigan, the law provides that a party may be entitled to costs and attorney fees for their representation in a divorce if they are unable to bear the expense of the litigation, the other party has the means and ability to contribute to the fees, or when a party refuses to comply with court orders. To the extent possible, attorney fees should be paid from marital funds.
Discussing the possibility of divorce with your spouse is a personal decision. However, when it comes to actually filing for divorce and initiating your case, it is often best to wait until after the documents have been filed with the court. Because the answer to this question can vary depending on the facts of your case, it is important to discuss with an attorney to determine the best strategy for your case moving forward. If you are a victim of domestic violence, you should take additional precautions to ensure your safety during this time.
No. Michigan is a no fault divorce state, so you can file for any reason, provided that you believe there have been “irreconcilable differences such that the objects of matrimony have been destroyed.” It is also important to know that Michigan does not have a requirement that the parties attend counseling or be separated for a set period of time prior to filing for divorce.
Michigan is a “no fault divorce” state, which means that a divorce will be granted regardless of whether or not either party is considered to blame for the breakdown of the marriage.
The fact that Michigan is a “no fault divorce” state does not mean that compelling reasons leading to the breakdown of the marriage such as abuse, neglect, substance abuse, emotional or physical abuse, infidelity, and/or mental health issues, will not come to light during the litigation. Fault can be taken into account when determining an appropriate division of marital assets and spousal support, and depending on the circumstances, custody determination and parenting time schedules as well.
Yes. Once your spouse is properly served with the Summons and Complaint, he or she has 21 days to file an answer to the complaint for divorce. If no answer is filed within that timeframe, your spouse will be considered “in default” and a default judgment of divorce can be entered against him or her once the statutory waiting period has expired.
The court will grant you a divorce regardless of whether or not your spouse wants a divorce, so long as you meet the statutory requirements in Michigan, which include living in Michigan for 180 days before filing for divorce, and living in the state in which you filed for 10 days prior to filing for divorce, and establishing to the court that there has been a breakdown in 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.
Ethical rules in Michigan prevent an attorney from representing both parties to a divorce. An attorney’s job is to look after his or her client’s best interests, and because divorcing spouses have such wildly different interests (whether it appears that way at the outset or not), it is not possible to ethically represent both parties in a divorce.
The answer to this question is almost always “yes.” If you are the plaintiff in a divorce proceeding, meaning that you filed for divorce, you will have to attend court at least one time. The number of times you and the opposing party in any type of family law case must attend court varies depending upon the facts of your case and the level of cooperation and amicability that exists between you and the opposing party.
No, you do not have to move out of your house if you file for divorce, in fact, many spouses continue to live under the same roof during the pendency of their divorce proceeding.
No. The house is not automatically yours if your spouse moves out during the divorce. Unless you owned your house individually prior to the marriage, and it has been categorized as your individual, premarital property, what happens to the house will be part of an overall division of your marital estate which includes real property (houses), and other assets acquired by you and your spouse during your marriage. Absent special circumstances, Michigan law calls for an equitable (not necessary equal) division of the marital estate.
When you file for divorce, you can request the court enter an order that prevents either you or your spouse from spending or withdrawing money in amounts inconsistent with your financial practices during the course of your marriage. These orders are complicated to prepare and enforce, and are best handled by an experienced family law attorney.
When you file for divorce, you can request the court enter an order that requires you and your spouse to continue handling your financial obligations as you did during the course of your marriage, including rent, mortgage payments, utilities, and other household bills and expenses. Again, these orders are complicated to prepare and enforce, and are best handled by an experienced family law attorney.
Federal law permits COBRA coverage for up to three (3) years after a divorce is final.
Yes. Michigan law provides for spousal support to be paid to a party based on a consideration of a number of factors, including:
(a) The parties’ past relations and conduct;
(b) Length of the marriage;
(c) Each party’s ability to work;
(d) The source and amount of property awarded to each party;
(e) Each party’s age;
(f) Ability to pay support;
(g) The present situation of the parties;
(h) The parties’ need for support;
(i) The parties’ health;
(j) The prior standard of living of the parties and whether the parties are responsible for the support of others;
(k) The parties’ contribution to the joint estate;
(l) A party’s fault in causing the divorce;
(m) How cohabitation affects a party’s financial status;
(n) General principles of equity.
There is no automatic formula for determining the amount or duration of spousal support and the Court must consider all of these factors in deciding how much support should be paid, and how long it should be paid for.
Yes. The law in Michigan does not determine spousal support based on gender, but rather considers all of the relevant factors discussed above.
You can waive your right to spousal support, however, you should discuss the implications of doing so with an experienced family law practitioner to determine whether or not it is in your best interest to do so.
The short answer is, “no.” However, you may be entitled to a larger portion of the marital estate as far as your overall property division is concerned, depending on the financial liberties your spouse took with your marital money in order to engage in an extramarital affair.
Furniture, household items, and personal property are all subject to division in a divorce. However, considering the cost and expense of working with attorneys to divide these items, it is encouraged for you and your spouse to work together to compile a comprehensive list of items each will be awarded.
No. Whether or not you want to change your name back to the name you had prior to your marriage is your decision. Your spouse cannot dictate whether or not you continue to use your married name.
Mediation is an alternative dispute resolution process which allows the parties to work with a mediator towards a resolution in their case. This can include all issues including child custody, child support, parenting time, spousal support, property division, payment of attorney fees, and any and all other disputed issues relative to your divorce. The mediation session is done out of court, in a private setting, and your attorney may or may not attend. While the process itself is not binding, if an agreement is reached by both parties at the mediation session, that agreement is final and binding, unless the agreement was reached based on some sort of fraud, duress, coercion, or some other compelling circumstance. For this reason, it is imperative that you have consulted an attorney and are adequately prepared for the mediation process.
Joint legal custody means two parents can discuss and agree upon major decisions affecting their minor children. This includes medical, educational, and religious decisions. But it is important to keep in mind that simply because parties share joint legal custody does not mean they are entitled to any specific parenting time schedule.
Physical custody refers to whom the child lives with primarily.
Joint physical custody means that the child resides with each parent, so the child has two places they consider “home.”
Sole physical custody means that the child resides primarily with one parent. However, it is important to know that even though one party may have sole physical custody, the other parent will most likely have parenting time with that child, absent extenuating circumstances.
No. The law in Michigan requires that custody be awarded consistent with the best interests of the minor children. This means that the Court will consider the best interests factors before making any decisions regarding custody.
The Judge assigned to your divorce or custody matter will make determinations about custody and parenting time with the minor child based on a number of factors as discussed above. These factors are called the “best interest factors” and were compiled to evaluate the most vital aspects of a minor child’s well-being.
These factors include the following:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) 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.
(c) The capacity and disposition of the parties involved to provide the child 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.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) 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. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
Consulting with a highly experienced family law attorney is crucial in understanding and tackling a full evaluation of the best interest factors in a custody dispute.
Parenting time refers to a specific schedule of days and time the child spends with each parent. Because each family is different, and every case is different, the specific parenting time plan can vary quite a bit from case to case, however, Michigan law provides that parenting time should be awarded in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time.
No. You cannot bring your children to court, unless the judge assigned to your case has specifically asked to meet with them. Otherwise, due to the often sensitive nature of the subject matter discussed in court proceedings, it is not appropriate for children to be present in court.
32. What if my kids want to tell the judge they don’t want to live with or spend time with their other parent?
If the judge wants to speak with your children regarding their preference for custody and/or parenting time, they will request a special “in camera” interview, meaning a private and confidential meeting between the judge and your children, to which neither you nor your spouse will be privy to.
Nesting is a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out of the home into separate residences. In other words, the parents are “visiting” the children instead of the children visiting the parents. This form of parenting time can be beneficial for children, but will really only work if the parents are extremely amicable.
“Right of first refusal” means that if, during your parenting time, you need to arrange for childcare for your children because you are not available, you must first offer that time to the children’s other parent, and vice versa. For example, if you have parenting time with your children on Saturday night, but you have a wedding to attend and will need to hire a babysitter, you must first ask the child’s other parent if they are available and would like to have that time with the children. This is a difficult provision to enforce, and is only recommended in very limited situations. Speak with a family law attorney to determine if this type of provision is appropriate for your family.
The ability to move outside of the State of Michigan with your children will greatly depend on whether there has been a prior determination of custody and the provisions of any custody order. When parents share joint legal custody, the ability to move out of Michigan requires consent of the other parent or Court approval.
Depending on the terms of your divorce judgment, travel is only prohibited to countries that are not signatories to the Hague Convention on the Civil Aspects of International Child Abduction. However, if you share custody of your child, then you will need to obtain a passport for your child together, or petition the Court to allow you to obtain a passport.
37. My child’s other parent lives in a different school district than I do, where will my child go to kindergarten?
If you and the child’s other parent share joint legal custody, you must make a collective decision regarding where your child will be enrolled in school. If you cannot agree on where to send your child to school, you can file a motion with the court requesting the judge decide where your child will attend school. The judge will hold an evidentiary hearing (like a mini-trial) to determine which school the child should attend. Another way to handle this issue is to attend mediation with an experienced family law mediator, a neutral third party who can assist you and the other parent in coming to an agreement on this issue.
Custody is modifiable if there has been proper cause or a change in circumstances since the entry of the last Court order. A party wanting to modify custody must file a motion with the Court, and that party bears the burden of establishing the proper cause or change in circumstances. Proper cause means changes that have or could have a significant enough effect on the child’s life such that a change in custody should occur.
A change in circumstances means that since the entry of the last order on custody, conditions which have or could have a significant impact on the child have materially changed. The Court will consider the established custodial environment in determining the weight of the burden by the party requesting the custody change. Established custodial environment exists with the parent whom the child looks to for support, guidance, and basic needs. The Court must also consider what custodial arrangement is in the best interests of the minor child.
Similarly to changing custody, parenting time is modifiable if there has been proper cause or a change in circumstances since entry of the last Court order, and it is in the child’s best interest to modify parenting time. A party wanting to modify parenting time must file a motion with the Court, and has the burden of establishing proper cause or change in circumstances exist to warrant modification of the current parenting time schedule.
40. My kids are refusing to come with me for my court-ordered parenting time and the other parent is telling them they don’t have to, is there anything I can do?
Your child’s other parent cannot unilaterally decide to limit or eliminate your parenting time, regardless of what they allege your child’s preferences are. If this behavior continues, you should have an experienced family law attorney file a motion to enforce the most recent order of the court awarding you parenting time, and to request makeup parenting time.
Our Family Wizard is a website designed to facilitate communications between separated or divorced parents in relation to their children. It promotes “cooperative parenting,” and includes features like a calendar to notify each parent of the children’s extracurricular activities, doctor appointments, dentist appointments, etc., and a message board for communicating regarding the children. This program is especially helpful when parents have difficulty communicating in person or via phone, email or text messaging. There is an annual cost associated with using the program. An experienced family law attorney can advise if this program is appropriate for your family.
In the State of Michigan, child support is based on a formula which considers each party’s income, number of overnights each party has with the minor child, tax filing status, cost of child care, and health insurance expenses. While there is now an online calculator available for public use, to ensure accurate calculation of child support, it is imperative to consult an experienced family law practitioner.
If you are subject to an income withholding order, the Friend of the Court will automatically direct your employer to withhold your support from your paycheck. If you have opted out of the Friend of the Court services, then you are required to submit payments directly to the other party. You should keep track of all payments made and never pay child support in cash.
If you are the recipient of child support then you have the right to decide how you want to receive your payments. MISDU (Michigan State Disbursement Unit) will process your support payments by collecting the monies directly from the other party’s employer per an income withholding order, and automatically divert the monies to your account.
The Friend of the Court is a division of the circuit court which is designed to assist parties in several areas related to their family law issues. This includes providing enforcement for custody, parenting time, and support orders; conducting investigations on custody, parenting time, and support issues; making recommendations on custody, parenting time, and support issues; offering mediation to settle disputes; and providing forms for parties unable to utilize the services of private attorneys.
No. The child support you receive from your child’s other parent is not your money – it is your child’s money, therefore, the court will not allow you to forego receiving child support from the other child’s parent if the Michigan Child Support Formula indicates that you should be receiving funds. However, in certain circumstances, you can request to deviate from the Michigan Child Support Formula depending upon the specific facts of your case.
Child support is modifiable based on a change in circumstances since the entry of the last court order. This could mean a decrease or increase in income, a change in parenting time, or an increase or decrease in the cost of health insurance or childcare. The birth of another child by one party may also cause a change in child support.
48. Why did my child’s father receive notice of a paternity action but I didn’t file anything or ask anyone to file anything on my behalf?
If you have applied for, or are receiving any form of state aid, including MIChild, the prosecutor in the county in which the minor child resides likely filed a child support case against the father of your child. Contact an experienced family law attorney at Kelly & Kelly to assist you in navigating through this process.
Guardianship of a minor gives you the power to make decisions on behalf of a minor when the minor’s custodial parent is unable to act in this capacity for their child.
You can obtain guardianship of your grandchild if the child’s parent consents to the guardianship, and agrees to sign the necessary documents that must be filed with the court in order to effectuate the guardianship.
If the child’s parent will not consent to the guardianship, you will need to file a petition for appointment of a guardian of a minor with the probate court in the county in which the child resides at the time of filing.
This can be a complicated process and is best accomplished with the assistance of an attorney experienced in this area of the law.
If the biological parent will not consent to the adoption, then the biological parent’s parental rights must be terminated. Termination can occur if the other parent has not provided regular and substantial support for two years or more, and has also failed to regularly visit or contact the minor child for two years or more. It is also a requirement that to proceed with involuntary termination of one party’s parental rights, the parent making the petition has sole legal custody of the minor child at issue.
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