Michigan Divorce Q & A (Questions & Answers) / FAQ (Frequently Asked Questions)
How much is the overall cost of my divorce?
The cost of the divorce is determined by the complexity of the legal issues involved, and the opposition of the legal issues by the other party. For example, if the other party is in agreement with major issues in the divorce, such as: child support, child custody, alimony, spousal support, or dividing property and assets/debts, you will most likely spend less in attorney fees because these issues can be resolved by the consent of both parties. If these issues are resolved in mediation, with the drafting of a separation agreement, more money will be saved. However, if these issues are contested by the opposing party, the attorney will spend more time preparing and litigating your case, especially if the case goes to trial- to be settled by the judge. A study conducted by Martindale-Nolo shows that the average spent for a non-contested divorce is $4000. A one-issue, contested divorce averages at $18,000. The cost is entirely dependent on the number of issues the divorce contains and whether or not it is contested.
How long will my divorce take?
The length of your divorce proceedings depends on many different factors. First, there is a mandatory waiting period that is required for all potential divorced couples in Michigan. Every divorce in Michigan has a minimum waiting period of 60 days. If there are minor children involved, the waiting period is 6 months. After the mandatory waiting period, a final judgment of divorce can be entered when the parties reach a settlement in mediation, or can be determined, later, by the trial judge. The length of the process is determined by how contested the issues are by the opposing party and by how complex the issues are to be litigated. For example, if you have child custody, child support, property division and spousal support issues – the length of the divorce will be much longer than a divorce without these issues. Generally, the shorter the length of marriage, agreement by both parties – with no minor children, the quicker the process of divorce will be.
I can’t locate my spouse to serve him/her. Can I still get a divorce?
Yes, you are able to still get a divorce. Notice of the action by process of service is required by the courts, in order to give the opposite party notice of the upcoming action. In order to do this, you have to locate your spouse, if his/her location is unknown. Locating your spouse may involve checking the telephone listings of where your spouse lived, contacting your spouse’s last known landlord or employer, asking your spouse’s friends and family of his/her location, checking the property records to see if he/she owns property, checking the state records for driver license and registrations and doing a postal check to see if there is a forwarding address on file. After all reasonable checks have been conducted, and you are still unable to locate your spouse, your attorney can file a motion for alternative service. Once the motion is granted, the court may permit service by posting or publication in the newspaper, or any other means that will reasonably provide actual notice of the proceedings. After the publication of the proceeding, you may proceed with the divorce. You will be able to get divorced and be awarded child custody; however, you may not be able to resolve property division issues, spousal support or child support until your spouse is served with the appropriate documents.
What is a contested and uncontested divorce?
A contested divorce is a divorce where the parties disagree or have objections to the initial complaint or petition, the terms of the settlement, and/or the party’s participation in the process. For example, the parties may disagree on how the property should be divided or disagree on the terms of child custody, visitation and child support. Contested divorces may lead to trial, if the issues are not resolved in mediation or settlement negotiations. If the issues are taken to trial, the judge will make the final decision on all aspects of the divorce. Because contested divorces require more time than uncontested divorce, the cost of a contested divorce is usually significantly more.
An uncontested divorce is a divorce where both parties agree to the divorce, agree to the terms of the settlement and does not dispute what is requested in the complaint or petition. When both parties agree on all aspects and terms of the divorce, and agrees on each party’s participation in the process, it is called a consent divorce.
What if my spouse does not want a divorce?
In the state of Michigan, you are allowed to get a divorce, even if your spouse objects to the divorce. This means that only one spouse has to file and initiate the process, even if the other spouse disagrees or does not reply to the initial complaint. Michigan is a “no fault” divorce state. The only thing that must be proven to get a divorce, in Michigan, is that there is 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.” Basically, the spouse initiating the divorce just has to show that the marriage is over, and it cannot be saved – that’s it. Fault, such as: cheating, abuse, abandonment, or anything similar to those actions, cannot and will not be used as evidence to grant a divorce. Fault may be used in the division of property, but not in proving a divorce is warranted. Lastly, even if your spouse show up to court and says “No, I don’t want a divorce,” you can get one.
What if I no longer want to get a divorce, but have started the process?
If you change your mind and decided not to pursue a divorce, you can do that, but it depends on what stage of the divorce process you are in. If you and your attorney have filed the initial complaint, but before your spouse has answered the complaint, you may file a dismissal of the action. This can be done, without the agreement of your spouse. If your spouse has already responded to the complaint by filing an answer, you can file for a dismissal, but the other spouse has to agree and sign the dismissal. Once the dismissal is entered, the divorce case has ended. If you later change your mind and decide to once again obtain a divorce, you must start the entire process over again.
What is Mediation?
Mediation can be a voluntary process or court-ordered, in which both parties are able to solve problems outside of the courtroom. Both parties are encouraged, during mediation, to reach an agreement regarding the divorce, child custody, and parenting time. A Mediator collects the information during this process, becomes familiar with the needs of the parties and any children, and formulates the issues that the parties need and want to resolve. This process saves time and money for you, because if both parties reach an agreement, the need to proceed to trial will disappear. Your attorney may appear with you during mediation.
When is mediation not appropriate?
Mediation is not appropriate in cases involving domestic violence, abuse, the threat of criminal behavior or acts, and/or situations involving unfair bargaining power. These situations are best left for trial.
If we agree in mediation to all the terms of the divorce, do we have to go to court?
If the terms of the divorce, custody and property issues are agreed upon, the mediator will draft a Memorandum of Agreement (MOA) that contains the mutual agreement of the parties. You should have an attorney review the MOA, to make sure all the terms of the agreement, discussed during the mediation, are in the document. When the MOA is signed by both parties it becomes a binding contract, that later can be submitted to the court to include in the final Judgment of Divorce.
What if we don’t agree to all the terms of the divorce through mediation?
If you and your spouse do not reach an agreement during mediation, you can still litigate the issues in court. Agreeing to mediation does not forfeit your rights to proceed to trial.
My spouse and I agree on all the terms of divorce, how long will the process take and what will happen?
If you and your spouse come to an agreement on all of the terms of divorce, before a trial takes place, the terms of the agreement are placed into a “Consent Judgment of Divorce.” This document musty comply with all applicable statutes and court rules, signed by both parties, and entered to the court after the statutory waiting period has passed.
The statutory waiting period is 60 days for spouses without minor children, and 6 months for spouses with children.
A majority of divorce cases are resolved with either a Consent Judgment of Divorce or a default. A default is entered when the opposing spouse does not answer the initial complaint in a timely fashion. When a default is entered, the judge can make final decisions regarding your divorce, property, children, and other issues without your opinion.
My husband/wife cheated. Can I use this information to get a divorce?
No, Michigan is a “no fault” divorce state. The only thing that must be proven to get a divorce, in Michigan, is that there is 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.” Basically, the spouse initiating the divorce just has to show that the marriage is over, and it cannot be saved – that’s it. Cheating can, however, be considered when dividing property and determining spousal support.
What is martial property? How can it be divided?
Marital property is all property that is acquired during the marriage, this includes property that may or may not be titled in the spouse’s name. Any property acquired until the final divorce decree is entered, is considered marital property. For example, your spouse purchased a house in his name only, but he purchased the house during the time in which the two of you were married, the house is considered martial property – even if the house is in his name only.
In Michigan, the courts are called to make an equitable division of the martial property. This means that each spouse will receive their own separate property (property acquired before the marriage), and the property will be divided according to each spouse equitable share. An equitable share may mean 50/50, or it can mean some other percentage of the property given to the spouse. The prevailing purpose of the court is to keep the division of property fair. Some of the factors that the courts use in dividing property are:
- The financial circumstances of each spouse at the time of marriage, commencement of action, and as predicted in the future;
- The duration of the marriage;
- The age and health of the parties;
- The need of the custodial parent to occupy and own the martial residence;
- Any loss of inheritance and pension rights due to dissolution;
- Any maintenance awards;
- Any direct or indirect contribution to acquisition of marital property;
- Any tax consequences to the parties;
- The wasteful dissipation of any assets, including both marital and separate property, or any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
- Any other factor that the court expressly finds just and proper.
What types of property is considered marital property?
Marital property is all property that is acquired during the marriage, this includes property that may or may not be titled in the spouse’s name. Any property acquired until the final divorce decree is entered, is considered marital property. Martial property may include:
- Pensions – A portion of a spouse pension, earned during the years in which the parties are married, is subject to equitable division by the court. This also includes military and government pensions.
- Professional License or Degree—Michigan is one of the few states that recognize holding a professional license or degree is subject to equitable division by the court. The court must place a valuation on the degree, and can award a percentage of its value to the other spouse through the grant of other martial property. If there is little marital property to divide amongst the parties, the court will order a lump sum for the value of the license or degree.
- Stock Options—Stock options earned or acquired during the marriage are considered martial property. This is true, whether they are exercised or not.
- Employment Bonuses—Employment bonuses earned and received during the marriage are considered martial property. However, if a bonus is dependent on a condition that takes place after the divorce, the bonus is no longer considered marital property.
- Workers’ Compensation Benefits—Workers’ compensation benefits are considered martial property, only if the benefits accrued during the parties’ marriage. Any benefits awarded before or after the dissolution of marriage are considered separate property.
- Real Property—Houses or land acquired during the parties’ marriage is subject to equitable distribution between the parties. It is not required that both spouses’ names are on the title.
