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Divorce Process in Michigan

May 1, 2011 by admin  
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Divorce Process in Michigan

A divorce begins with the filing of a lawsuit or complaint for divorce. This is “served” on the other party by giving him/her a copy of the complaint and summons and having him/her sign the back of the summons to acknowledge receipt. Otherwise, a person called a “process server” must personally hand the summons and complaint to the other spouse or the complaint and summons can be sent by certified mail. When a receipt is signed for the certified mail, the court considers it “served.” Service must be completed within 90 days of filing or the court will dismiss the case for “lack of progress.” In the end, the court must receive some sort of evidence in the court file (called a “return of service”) to prove that the pleadings (i.e., the summons and complaint) were received by the defendant. The judges are assigned randomly to cases. You find out immediately who your judge will be when the complaint is filed. You cannot do anything to “pick” a particular judge.

After “service” of the complaint and summons, the defendant/other spouse must file an “answer.” The “answer” admits or denies all of the allegations in the complaint. The answer must be filed with the court within 21 days of service unless the complaint and summons were served by certified mail. In that case, the defendant has 28 days to answer the allegations in the complaint. Within a month of filing the complaint for divorce, each party is expected to file a verified financial statement setting forth the assets and liabilities of the parties. This may be later amended as information becomes available, but it is expected to be a good faith estimate of the net worth of the marital estate.


Once the court knows that both a complaint and an answer have been filed, it will schedule a “pretrial conference.” The client does not have to attend this conference, but the attorneys for both sides must attend. At that time, the court generally sets deadlines for exchanging witness lists, for the close of “discovery,” and for a “settlement conference” date as well.

“Discovery” is a set of procedures for getting information in a case. Discovery is governed by “court rules.” Discovery can include interrogatories and requests for production of documents from the other side. It can include subpoenas to third parties. It can include “depositions” of parties to the case (the husband and wife) and of non-parties (like employers, day care providers, neighbors, and relatives). Discovery can also include independent medical examinations (“IME’s”) like an evaluation by a therapist or psychiatrist. Unlike interrogatories and requests for production of documents, a party can only do an IME if the court permits it. To get a court order for an IME, the requesting party must file a motion with the court and go through a hearing.

During the pendency of a case, there are some occasions where the parties must appear in court for a hearing (that is not the actual “trial”). A judge has the power to require the parties to appear. The parties themselves can also set up a hearing by filing a “motion” for some sort of relief with the court. Most judges appreciate having the parties personally appear at “motion hearings” although parties are under no legal requirement to be there unless they have been served with a “show cause order.” If a party fails to appear for a “show cause hearing,” then the court can issue a bench warrant for their arrest.

After a motion hearing, the judge makes a decision on the relief requested. The judge can decide the issue on the spot or take the matter “under advisement” and issue a written decision within a few days or a few weeks. If the court rules the day of the hearing, then the court expects the attorney for the party who filed the motion to draft an order that is consistent with the court’s ruling. This requirement applies even if the judge ruled against the party who filed the motion although sometimes the court will ask the prevailing party to draft the order. A party cannot contest the language in the order if it is consistent with the judge’s ruling. The only way to contest the ruling at that point is to take an appeal.

Sometimes orders are entered by the court without a motion being filed or a motion hearing. This can happen because the court decided itself to issue an order. It can also happen because the parties agree to an order and “stipulate” to its entry. If the judge sees the signatures of both attorneys on a proposed order, the court will almost always sign the order without a hearing. Once an order is entered, it must be followed. Even if it is appealed, the order is in effect unless the Michigan Court of Appeals suspends its enforceability.

During the pendency of the case, the parties are expected to discuss legal custody, parenting time, child and spousal support, and property distribution. Usually the attorneys are able to discuss these issues even if the parties cannot. While the court has the Friend of the Court available when it comes to support and custody/parenting issues, it is more difficult to decide property issues. There are three tasks to be completed on the issue of property during the case:

1. All property and debt must be identified and listed.


2. Property must be valued. Sometimes the parties can “stipulate” or agree to a value; otherwise, it must be valued by an appraiser or qualified third party.


3. Property must be distributed in the end. If the parties can agree as to who gets what, the court will usually accept that. Most assets are divided between the parties “in kind.” If neither party wants an asset or is able to afford it, then the asset should be sold. If both parties want an asset, then they must submit this issue to the court or consider mediation or arbitration to decide it without court intervention. (Mediation and arbitration are different processes. With mediation, a trained person helps the parties reach agreement. If they do not agree, then the court decides and there is no prejudice to anyone because he/she did not accept a proposal in mediation. With arbitration, a trained person hears the parties’ positions and possibly considers other evidence. Then the arbitrator makes a decision, and the parties (in advance and in writing) agree to be bound by the decision. A decision by an arbitrator cannot be appealed and can be enforced by the court.

After the time for discovery has expired, the court will require the parties to appear in person for a settlement conference. Sometimes the court will also order the parties to meet with a mediator to try and settle a case. There is no obligation to settle, but if a party does not participate in settlement proceedings in good faith, it could backfire on that party in the end.

Further, if there are issues relating to children or alimony, the court generally refers the issue to the Friend of the Court (“FOC”). The FOC caseworkers will schedule an interview. Sometimes they speak with parties individually for one hour each. Other times the caseworker will ask the parties to come together and will meet with them for 1–1-1/2 hours. The attorneys are permitted to attend these interviews but generally do not come. If minor children are involved and they are old enough, the FOC caseworker will interview them as well in private. After the interviews are concluded, the FOC issues a “recommendation.” The court is usually willing to enter that recommendation as an interim order of the court while the case is pending. If either party objects to the recommendation, the court can either set the matter for an evidentiary hearing before the court itself or order the parties to go through a FOC “referee hearing.” A referee hearing takes place at the FOC offices in the courthouse. It is not open to the public. Witnesses must leave the room immediately after testifying. The hearing officer is an attorney employed by the court. After the hearing, the referee writes a recommendation and issues it. The parties have 21 days to accept the recommendation or file objections with the court and schedule a hearing on the objections. If objections are filed, then the court holds an evidentiary hearing and makes its own ruling—which may be consistent with the referee recommendation or different.


There is eventually a trial in each case if it is not settled. Approximately 90% of all divorce cases are settled before trial. If the parties are able to settle some of their issues, the court is generally willing to hear and decide only the unsettled issues. After the court rules, then the parties have 21 days to file an appeal with the Michigan Court of Appeals if they object to the final decision. Very few cases get to this point.

 

Marian L. Faupel is a practicing attorney with over 25 years experience and an Adjunct Professor at Wayne State University. For more information on divorce, please visit http://www.faupel.com.


Article from articlesbase.com

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