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October 25, 2012

The Michigan Divorce Process

In Michigan, a divorce follows a formal process. However, there is no requirement to follow every step in a divorce. In fact, most cases settle during the divorce process. We invite you to explore our knowledge base. 

Divorce Process Resources

THE BASICS   THE DETAILS

 

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The basics – Michigan divorce process

The Michigan divorce process can be described in five basic steps. However, most Michigan divorce cases settle before trial. A Michigan divorce case can settle at any time during the divorce process.

  1. File the Complaint for Divorce / Ex Parte Orders;
  2. Service of Process / Answer the Complaint / Counterclaim;
  3. Conduct Discovery;
  4. Negotiate or Mediate; and
  5. Trial or Arbitration.
The BASIC Divorce Process

The Plaintiff is the person who files the complaint for divorce and the Defendant is the person who responds or answers the complaint for divorce. If things are not confusing enough, the Defendant can file a counter-claim and become a Defendant/Counter-Plaintiff.

Formal process 1

A divorce without minor children cannot be completed in less than 60 days and typically will be completed within 6 months. A divorce with minor children cannot be completed in less than 6 months (without special court permission) and typically is completed within 1 year. This waiting period is called the statutory waiting period.

The details – Michigan divorce process

Before exploring the nitty gritty details of the Michigan divorce process it is important to have an understanding of the following terms:

Complaint for divorce:  The formal divorce lawsuit which is filed with the court.

Counterclaim for divorce:  A counterclaim for divorce is a lawsuit against the party who filed first.

Ex Parte OrdersOptional Orders submitted with the complaint. Typically to preserve property and maintain the financial status quo during the divorce process. Ex Parte” is a Latin legal term meaning “from one party”.  Simply put, an Ex Parte order is an order submitted to the court without first having a hearing or asking the other party to agree. Typically, an order is entered after the court has an opportunity to hear from both parties.  An Ex Parte order is different because the order is entered first and the hearing is set for another date.

Service of process:  Placing your spouse on legal notice of the divorce. Typically by a process server. Service must be completed within 90 days of filing the complaint.

Conduct discovery: The process of “discovering” the nature and extent of the marital estate and contested issues.  (e.g. Interrogatories, Subpoenas and Depositions)

Mediation: A facilitated settlement meeting with a neutral 3rd party.

Settlement Conference:  A court appearance where the court may try to facilitate settlement if mediation was unsuccessful.

Trial / Arbitration:  A Trial is before a Judge. Arbitration is before a private judge. Parties must agree to arbitration and the right to appeal is limited.

The DETAILED Divorce Process

Every case must complete the first two steps of the formal divorce process; the remaining steps may not be necessary in every case.

Michigan divorce – The Jurisdictional requirements.

  1. File the Complaint for Divorce. After setting achievable goals, the Michigan divorce process begins with the filing of a complaint for divorce.   The complaint for divorce is a lawsuit which simply provides that a party wants to get divorced.  The complaint for divorce also contains a wherefore clause, setting forth a basic proposed resolution of the issues. Typically, some Orders regarding property or the children will be entered as well. For example, preserving the financial status quo of the parties, prohibiting property transfer or awarding temporary custody.  This step of the divorce process must occur in every case.
  2. Service of Process. he next step in the Michigan divorce process is service of process.  The Plaintiff (person who files the divorce) must put the Defendant (the person responding to the divorce) on legal notice of the complaint for divorce.  The Michigan Court rules define the manner and method of service of process. Typically a defendant is personally served with the complaint for divorce by a process server, generally an outside contractor. However, other means of service of process are available, especially when your spouse is avoiding service.  This step of the divorce process must occur in every Michigan divorce case.
  3. Answer to Complaint The next step in the Michigan divorce process is the requirement to answer the complaint.  Within 21 days after the Defendant is served with the lawsuit (28 days if served by mail or if out of state) he/she must file a formal answer to the complaint for divorce. The answer to complaint must specifically address the allegations in the complaint for divorce with an admission or denial.  The answer to complaint sets forth what is contested in the case.  Key learning: If you are served with a lawsuit, a failure to answer the complaint timely can result in really bad things, like a money judgment against you or loss of property, custody or other rights. Protect your rights by always contacting an attorney if you receive notice of a legal proceeding.  This step of the divorce process should occur in every Michigan divorce case, but is not mandatory.
  4. Discovery. Discovery is the formal process of exchanging information under oath.  Discovery is used by Michigan divorce attorney’s to verify facts and discover information.  Simply put, in order to properly prepare for settlement or trial, you must first understand the nature and extent of the marital estate.  Typically, an attorney will use three types of discovery:
    a. Interrogatories, which are written questions submitted under oath and subject to the penalties of perjury;
    b. Subpoenas, which is a court order which generally compels the production of documents; and
    c. Depositions, which is testimony taken under oath and subject to the penalty of perjury.Discovery is often the single most important step in the Michigan divorce process, but is not mandatory.  Properly conducted, discovery will protect individual rights and save the parties money.
  5. Status / Case Management Conference. The next step in the Michigan divorce process is typically a court appearance.  This court appearance is generally called a status or case management conference.  The court appearance goes by more than one name depending upon which county the Michigan divorce is filed.  The purpose of this court appearance is simply to schedule dates and obtain a timeline for the conclusion of the case.  This step of the divorce process must occur in certain counties when there is a Michigan divorce with minor children.
  6. Early Intervention Conference. If your case involves minor children, the first court appearance in some counties is an Early Intervention Conference. The purpose of the conference is to meet with the Friend of the Court and schedule dates and potential referrals concerning custody, support and parenting time.  This step of the divorce process should occur in every Michigan divorce case, but is not mandatory.
  7. Mediation. Mediation is a non-binding, informal process by which a neutral third party listens to the positions of the parties and attempts to facilitate a resolution or settlement. Mediation is helpful in many cases to help resolve a case in a less costly, more economical manner, saving time, money and stress.  This step occurs in many Michigan divorce cases, when the parties cannot reach a settlement on their own.  While mediation may not be mandatory, it sometimes is and can be an important step in the Michigan divorce process.
  8. Settlement Conference. If mediation is not successful, the court will schedule a settlement conference in an attempt to see if the parties can settle a case. If mediation is successful, typically, the settlement conference will also serve as your date of divorce.  This step of the Michigan divorce process should occurs in every Michigan divorce case that has not settled and may proceed to trial.
  9. Trail or Arbitration. At trial, the Judge makes a decision regarding disputed issues. Arbitration is a voluntary process like mediation and is often less costly than going to trial, however, it is very important to understand that Arbitration is binding with limited rights to appeal a bad decision. In either case, a third party (Judge/Arbitrator) determines the parties’ rights and obligations.Most cases settle before Trial or Arbitration, however, if necessary, a Trial or Arbitration is the only mechanism to resolve a case.  This step of the divorce process should occur in very few Michigan divorce cases.

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