To obtain a divorce in Michigan, one of the parties must have been a resident of the state for at least 180 days and of the county in which he or she files for divorce for at least 10 days prior to filing the complaint for divorce. These residency requirements are jurisdictional, meaning neither party can waive them (say, for example, if you only resided in county A for 9 days but nonetheless wanted a divorce in county A).
Michigan is a no-fault divorce state. The complaint for divorce need only allege 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 of reconciliation. This does not mean, however, that Michigan does not consider fault. Fault is relevant in some instances in child custody, spousal support and property distribution.
Even if the parties are able to successfully negotiate the issues in their divorce case, Michigan law still requires that one of the parties physically appear before the court and testify under oath that there has been a breakdown of the marriage relationship. In this hearing it is the judge's responsibility to make sure that the best interests of any children have been met and that both parties agree to the settlement.
The family division of the circuit court handles all divorce cases in Michigan. If you want to file for a divorce, one of the parties must have lived in Michigan for at least 180 days and in the county where the case will be filed for at least 10 days before filing. The person who starts the divorce action is called the plaintiff. The plaintiff must file a complaint asking the court to grant a divorce. There is a filing fee for this action. The filing fee is more if there are children of the marriage who are under the age of 18.
If there are no children under the age of 18, there is a 30 day waiting period before a divorce can be granted. In cases where there are minor children, there is a 6 month waiting period. However, if there is unusual hardship or compelling necessity, the court may waive the 6 month waiting period. This waiver can only be obtained by petitioning the court, and whether to waive the period is in the court's discretion.
There are three distinct ways of legally ending a marriage relationship in Michigan: Divorce, Separate Maintenance and Annulment. In a Separate Maintenance action, the party filing this proceeding is asking the Court's help in providing for the division of marital property and, if there are children, for the custody and support of the children. A party may also request spousal support. However, in an action for Separate Maintenance, the Plaintiff does not seek to have the marriage dissolved. In Michigan, if the other party requests a divorce, instead of Separate Maintenance, the Court is required to grant the request for a divorce.
An Annulment proceeding is where the Plaintiff asks the Court to declare that the marriage never existed and is void. The "grounds" for Annulment include bigamy, fraud, insanity or the attempted marriage of a minor. Annulment can only be used in special circumstances and can not be used if children have been born as a result of the marriage.
People seeking a divorce are often confused about the concept of fault as used in Michigan divorce law. The common term for a divorce in Michigan is "no-fault" because in Michigan it is not necessary to establish that one party was at fault in order to obtain a court ordered divorce.
To receive a court-approved divorce in Michigan it is not necessary to show that either one of the parties was at fault in the decline of the marriage. The only thing that is necessary to prove is that there has been a breakdown in the marital relationship to the extent that the objects and goals of marriage have been destroyed and that no reasonable possibility remains that the marriage can be saved.
The assignment of fault may make a difference in terms of a court's final determination of the division of property. If one party is determined to be at fault for the breakdown of the marriage, then the court may award the other party more property.
"Equitable distribution" governs property division in Michigan. The court starts with the presumption that the parties should each receive a "roughly congruent" share of the marital property. Marital property is undefined by statute, but case law defines it as any property (including debt) acquired during the marriage, from any source, but excludes property acquired during the marriage and any increased in value so long as the increase was passive.
However, special rules apply to gifts (whether they were for the marriage or for the individual), inheritances, and commingled property, and you should consult with a lawyer to determine what your particular county and/or judge considers marital and separate property. There is no "bright-line" rule to divide property; instead, the court considers several factors, including the length of the marriage, the parties' needs, age, the value of the property, and so forth.
Fault is, in general, relevant if the fault that caused the breakdown of the marriage is related to marital property (e.g., your spouse had a gambling habit and, as a result, acquired substantial debt by refinancing your marital home). The court may also invade each party's separate property if the other party contributed to the increase in value of that property or if the other party "needs" a share of the property, using the same multi-factored analysis. In the final divorce judgment, the court is required to divide the parties' marital property, stating specifically how to divide pensions, annuities, and other retirement accounts, that were acquired or accrued value during the marriage.
Generally, courts start with the presumption that marital property should be split equally between the parties. However, Judges are only required to divide the property in a fair and equitable manner. In some cases, such as alimony, this requires that the property not be divided equally, this allows the court to make determinations based on relative fault.
Some of the other factors that may be considered are the duration of the marriage, the age, health, and earning power of the parties, and the contributions of the respective parties to the marital property. The Court is also required to consider pensions, annuities, profit sharing plans, and other retirement plans as part of the marital property.
Alimony in Michigan is called spousal support by statute. The court may award temporary spousal support during the action or in the final judgment if the judge determines that the awarded party "needs" support and the other party is able to pay it. The court uses a multi-factored analysis similar to the analysis used to divide marital property. The factors the court considers include:
Using this analysis, the court will award spousal support for a specific time period, which may be short and rehabilitative or long-term and either modifiable or non-modifiable, depending on the factors in the case. Be sure to consult with your lawyer to determine what your court and/or judge generally awards as spousal support, if anything.
Alimony can last for varying lengths of time and as a general rule can be modified or terminated as conditions warrant. Some courts will also consider an award of rehabilitative alimony. This type of award is usually designed to allow one spouse to obtain schooling or special training so that they can earn more in the job market. This type of alimony is usually limited in its duration.
In Michigan, a court may award alimony at the conclusion of a divorce case if the judge determines that support is appropriate in the given circumstances. Michigan courts have the authority to make an award of alimony in appropriate cases. The factors the court applies in determining the question of alimony include:
Alimony can last for varying lengths of time and as a general rule can be modified or terminated as conditions warrant.
Some courts will also consider an award of rehabilitative alimony. This type of award is usually designed to allow one spouse to obtain schooling or special training so that they can earn more in the job market. This type of alimony is usually limited in its duration.
"Custody" is divided in two segments, "legal" and "physical." Usually, the parties share legal custody. This means the power to make the child's important life decisions, such as educational and medical decisions. Physical custody is the actual possession and time with the child. It is presumed by statute that each child deserves an equal relationship with both parents, and the court must inform the parties of the option for joint custody. However, the court must try to maintain the child's established custodial environment when rendering a custody decision. An established custodial environment is a physical and a psychological environment marked by security and stability, where the child naturally looks for comfort, guidance and necessities. If it exists, the party seeking custody must persuade by clear and convincing evidence that changing it is in the child's best interests; otherwise, the preponderance of evidence burden applies. Using any burden, before awarding or modifying custody or parenting time, the court must consider:
The Child Custody Act also contains a litmus test for custody modifications. There must be a demonstrable "proper cause" or "change in circumstances" sufficient to modify custody. A proper cause should be relevant to at least one of the best interest factors, whereas a change in circumstances should be relevant to the sum total of them. This proper cause or change in circumstances test is mandatory. Minor changes, such as a parent's relocation, that do not affect the child will not suffice because, as the appellate courts have explained, there will always be some changes in a child's behavior and background circumstances over time.
Divorcing parties who have minor children generally have custody and support issues heard in the Friend of the Court, an agency-like body that assists the court with child custody, child support and (depending on the county) spousal support issues. Each county has the authority to establish how its Friend of the Court body operates, so be sure to consult with your lawyer for your particular county's procedures. Most often, the parties appear at a conciliation conference designed to assist them in determining a mutually acceptable custodial arrangement and parenting time schedule. If they cannot agree, the Friend of the Court will issue a recommendation to which either party may object within a certain time period. If a party objects, then a Friend of the Court referee or the judge will issue the custody and parenting time order. This is a temporary order, and in most cases it also becomes the final order, unless the party wishing to change it bring a motion to the court or the court independently determines the order is no longer in the child's best interests.
Divorcing parties who have minor children are required to appear at a Conciliation Conference at the office of the Friend of the Court. This conference is designed to assist parents in reaching agreement on issues of temporary child custody, parenting time and child support. Often, a Temporary Order will result from this conference.
The court must determine whether an award of joint custody is in the best interest of the child by using factors found in the divorce statue. The first factor actually consists of the 12 factors that make up the Best Interest of the Child Test. The second factor found in the Joint Custody statutory provision is based on the ability of the parents to cooperate.
Generally, the issue of the amount of child support is referred to the Friend of the Court. This body will conduct an investigation and make a recommendation as to the amount of child support. The Friend of the Court utilizes the Child Support Guidelines incorporated into a computer program and manual. The Friend of the Court will take into account many factors in making a recommendation, which are included in the text version as well as software version of the Child Support Guidelines. A non-custodial parent will generally pay a percentage of his or her net income after taxes.
The Michigan Child Support Guidelines are advisory, not mandatory. The court must deviate from the Guidelines when the recommended amount is "unjust or inappropriate." What is "unjust or inappropriate" is determined by the facts of each case. The Friend of the Court advises that good facts for deviation will arise around the following factors:
This list is not exclusive. The court must exercise discretion and consider all factors relevant to the case, the best interest of the child, and the financial ability of the payor. The parties' agreement to deviate is sufficient if the court determines it is in the child's best interests and if the parties disclose certain financial information defined by statute. The payor's "financial ability" means actual resources, and income imputation is generally only appropriate when the payor is in bad faith voluntarily unemployed or underemployed or has underreported income. Actual income means all income, not just income gained through employment. Income also includes withdrawals from IRAs and reasonable rates of return for properties. Overall, the Friend of the Court and/or the court should consider the parties' "financial condition" and all "relevant factors" when computing income for child support purposes.
The starting point for any discussion regarding child custody in the state of Michigan is the best interest of the child test. Before an award of custody can be made to either party, in a contested action, the judge must examine each factor in the test and make a determination as to whether one parent better fulfills that part of the test.
There are many adjustments that are taken into consideration which can increase or decrease the amount of child support. Some common ones include incomes from second jobs, income your spouse or former spouse earns and prior support obligations.
Once the Friend of the Court completes its recommendation each party is presented with its recommendation and the matter is referred to the judge assigned to your case. If the parties cannot agree, then it will be up to your judge to determine the amount of child support. This is done by means of a hearing.