THE INSIDER'S GUIDE TO DOMESTIC LITIGATION
PROVIDED COURTESY OF RONIN LEGAL SERVICES, P.C. ATTORNEYS AT LAW
The following material is intended to answer some of your questions about the legal aspects of divorce. It is not intended to answer specific questions about your particular case, since each case is different and to some extent unique.
YOU AND YOUR ATTORNEY
The breakup of a marriage is a difficult experience. As your Attorneys, we will help you solve your legal problems. We can also recommend books on divorce, divorce stress, and helping children involved in a divorce. However, we are not trained in psychological counseling. If you need help with emotional stress, we will be happy to give you a list of professionals who are trained to help you deal with your feelings.
To properly represent you, we must have all the facts concerning your case. Information you withhold can affect the outcome of your case in a negative way. Your confidential information is not revealed without your consent.
We want to stress that we are here to advise and inform you and to assist you in decision making. However, you must make the final decisions regarding your case. Most divorce cases are settled. The parties eventually reach an agreement, which is entered on the record as the order of the court. Do not agree to anything that you do not understand. After an agreement is placed on the record it is extremely difficult to change it.
GROUNDS FOR DIVORCE
Michigan is known as a no-fault divorce state. This means you do not have to prove fault to get a divorce. However, the words, no fault can be misleading, because the judge may consider fault in deciding disputed spousal support, property, child support, parenting time, or custody questions.
Michigan has one ground for divorce: There has been 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. In court, some judges require simply an assertion that your marriage is over. Other judges require more, such as testimony by the Plaintiff that she or he wants a divorce and why (for example, the spouse is abusive, doesn't work, has left the marriage, or has left the country).
DIVORCE PROCEDURE
Time Limits
1. A party must reside in Michigan for at least 180 days and in the county where the suit is started for at least 10 days.
2. The divorce may not be finalized if it involves minor children until six months after the complaint is filed though in some instances this six month period can be waived. In a case in which no minor children are involved, or where the six month period with minor children is waived, the earliest is 60 days.
3. THE LENGTH OF TIME YOUR CASE WILL TAKE TO COMPLETE CANNOT BE PREDICTED AND NO PROMISE REGARDING THIS CAN BE MADE TO YOU. ANY TIME FRAMES PROVIDED AT ANY POINT, BY ANY PERSON, SHOULD BE VIEWED AS ESTIMATES ONLY.
The Ten Typical Types of Domestic Litigation Documents
A divorce case may include these documents:
1. Summons. The summons notifies the other spouse that he or she has been sued and tells him or her where and when to answer and that a default may be entered if he or she does not appear and answer.
2. Complaint. The complaint begins the divorce action. It states the facts of the case and the relief that the plaintiff wants (for example, custody of the minor children, child support, a share of the property). The complaint includes information about previous divorce/support cases of either party. It also includes a child custody affidavit. This lists the minor children's residence during the past five years and states that no custody action involving the children is pending (it is only needed when minor children are involved).
3. Affidavit of service/Return of service. This document shows that the defendant has been served, that is, given the papers filed with the court.
4. Verified statement to the Friend of the Court. This statement tells the Friend of the Court facts about child or spousal support (it is unnecessary in cases in which the Friend of the Court is not involved).
5. Record of Divorce. This document is a statistical record required by the Michigan Department of Health. This is filed when the divorce is finalized.
6. Ex Parte Orders. Ex Parte Orders are issued without prior notice to the defendant. The order must be served on the other party, who may then file objections to it. Filing an objection may make the ex parte order ineffective until a hearing is held. The affidavit for an ex parte order is a sworn statement that affirms that the facts stated to obtain the ex parte order are true. Some examples are 6a and 6b.
6a. Injunctions. An injunction orders a party not to do something, such as selling, disposing of, or hiding assets or changing the beneficiary on life insurance. This should usually be an order in every case.
6b. Personal Protection Order. This order is an injunction that orders the party not to assault or threaten violence to the spouse or children or that prohibits stalking.
7. Court fees are currently (2006) $150.00 without children/$230.00 with children. There is also a charge for serving papers and for filing motions.
8. Notice of hearing, praecipe, motions, and filing fee. These are required for any motion that requires a hearing. A motion is a request to the court for some type of relief. A praecipe asks that the matter be set for hearing, and the notice of hearing says where and when. Each motion that is filed costs $20.00. At a motion hearing, only the lawyers are typically allowed to speak, unless the court asks you for your position.
9. Temporary orders. Orders you live by until your divorce is final.
10. Judgment of Divorce. The document that grants you a divorce. It also provides for custody, parenting time, support, and property division.
Who's Who and What They Do
The Plaintiff is the party who starts the lawsuit. The defendant is the person being sued. The divorce is resolved by the family court. The Friend of the Court is an office of the family court that investigates and makes recommendations about spousal support, child support, child custody and parenting time, collects and distributes support payments, and may request the enforcement of court orders for support and parenting time.
Contested and Uncontested Cases
After the complaint and summons are filed and served, the defendant has 21 days (28 days if served by mail or out of state) to file an answer admitting or denying each paragraph in the complaint. The defendant may also file a counterclaim, to which the plaintiff must file an answer.
Once the answer is filed, the case is contested. If the defendant does not file an answer, an order of default is entered. The matter then becomes an uncontested divorce case. However, the defendant may decide to retain an attorney and move the court to set aside the default. Judges are extremely likely to grant this, even if it is done just before the case is ready to be finalized.
No divorce whether contested or uncontested, is granted without a court hearing to determine the truth of the statements made in the complaint. This is usually brief in an uncontested case.
Temporary Orders
Temporary orders may be requested at any time after your case is started and before a judgment of divorce is entered. These include orders for child support, custody, who lives in the marital home, and spousal support. Generally a hearing will be required before any temporary order will be entered unless both parties agree to the order.
The court may award temporary attorney fees to a party who can show need. These fees are typically in the range of $300 to $500, and if received, they are credited to your account.
WHILE YOUR DIVORCE IS PENDING
Discovering Facts and Defining Issues
While awaiting the hearing in your case, we will be defining the issues and obtaining the facts through investigation and discovery. Types of discovery include depositions (questioning a witness under oath), requests to admit (asking the other party to agree that certain facts are true), and interrogatories (questions to a party that he or she is required to answer under oath). Appraisers, actuaries (if pensions are involved), accountants, or psychological professionals may be consulted (with the client's prior consent). This may also involve subpoenaing certain documents from various persons, agencies, or entities.
After discovery is completed you and your attorney will discuss your goals and settlement negotiations. Your case may be conducted without formal discovery, but only on the client's express order and only after the client has consulted with their attorney and executed a discovery waiver form.
Settlement
The attorney might decide to call a meeting, with both parties and their counsel present, and try to resolve as many issues as possible.
If a settlement is reached, the parties will sign a form containing all the provisions of the settlement. The parties may be required to approve the settlement in court, when it is a placed on the record.
Court Appearances
Your lawyer may go to Court for motion hearings and a pretrial or settlement conference. You should assume that your presence will be required at all scheduled court appearances unless your attorney specifically tells you otherwise.
Your Judge may refer a custody case to be heard by a Friend of the Court Referee. This is often a quicker way to have the case heard, but the Referee's recommendation is not final. Both parties have an absolute right to have the case heard by a Judge. As a result, either party can generally object to any decision rendered by a Referee and have the case heard over again by a Judge.
The final trial date may not be the day your case ends, depending on the Judge's schedule. You should be prepared for the frustrating circumstance of any court date being adjourned with little to no notice whatsoever.
JUDGMENT
The Judgment of Divorce is the document that actually grants the divorce. It also deals with spousal support, custody, child support, parenting time, insurance, the property settlement and other issues. You will have an opportunity to read the Judgment and discuss it with your attorney before it is entered. You must be certain that you thoroughly understand the terms contained in the Judgment of Divorce and that the Judgment as drafted is what you want and can reasonably live with. Once the Judgment of Divorce is entered or signed by the Judge it can be extremely difficult if not impossible to set aside or change.
ELEVEN FACTORS COURTS CONSIDER FOR SPOUSAL SUPPORT
Spousal support, also called alimony, is money paid to one's former spouse for his or her support. The court considers the following factors in awarding spousal support:
1. the past relations and conduct of the parties (fault);
2. the length of the marriage;
3. the ability of the parties to work and their respective incomes;
4. the source and amount of property awarded to the parties;
5. the ability of the parties to pay spousal support;
6. the present situation of the parties;
7. the needs of the parties;
8. the health of the parties;
9. the prior standard of living of the parties and whether either is responsible for the support of others;
10. the age and educational level of the person claiming spousal support need
11. any other equitable circumstances.
A judgment of divorce must either award spousal support, expressly reserve the question, or state that neither party is entitled to spousal support.
Spousal support may be modified on a showing of a change in circumstances that warrants modification, unless the Judgment specifically states that spousal support is nonmodifiable or is specified as alimony in gross.
Spousal support is usually paid through the office of the Friend of the Court, but the parties can agree to have payments made directly.
HEALTH CARE INSURANCE
Adult health care insurance that is provided through your spouse's employment stops when the divorce is final. It is a crime for a person not to inform their insurance company within a reasonable amount of time of their divorce becoming final. Ongoing coverage may be available under COBRA (a federal law that makes continuing health care insurance available), at a cost, following divorce. The usual contention on this issue is who will be responsible for the cost of the insurance. Unless otherwise specified, the spouse that is receiving the benefit of the insurance is responsible for the cost of the insurance. There is a three year maximum for COBRA benefits.
Federal law also provides for group health care coverage by employers for the children of employees who are not in the employee's custody. The coverage is obtained by means of Qualified Medical Child Support Orders. Children are covered no matter who claims them as a tax exemption.
CHILD CUSTODY
This issue is the most emotional and difficult in divorce cases. Custody may take many forms, including sole custody, joint custody, shared custody, etc. The basis for determining child custody is "the best interests of the child." These guidelines are sex neutral. They contain no preference for the mother. The word "unfit" does not appear in the factors. There is no law that says a 12 year old can choose where he or she lives. Generally, the older the child is the more weight the child's preference carries. However, even a 17 year old's preference may be disregarded if the other factors are found to weigh against the minor child's preference. The following factors are those considered in deciding what is in the child's best interest.
(a) The love, affection, and other emotional ties existing between the parties involved and the minor 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 with 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 a preference.
(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
(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.
MCLA 722.23, MSA 25.312(3)
Child custody orders may be modified if there is a change in circumstances sufficient to justify a change in custody.
Joint Custody
Joint legal custody is routinely awarded. Joint legal custody means the parties will have equal access to school and medical records. It also means that the parents must consult with each other on major non-emergency decisions for the child. Physical custody - meaning where the child resides - may be sole or joint. Joint physical custody arrangements vary - week to week, month to month, etc., and are largely limited only by the parties imagination and circumstances.
Child Support
Child support is determined by state guidelines based on the income of the parents. A party may not voluntarily reduce their income to lower child support as the prior higher income can still be imputed to the person attempting to do so.
If child support, medical expenses, etc., are not paid up to date when the judgment of divorce is entered, the judgment must specify whether the unpaid amounts remain due and payable after the entry of the judgment, or said arrearages are waived.
Income Withholding Order
Every order for child support may be modified if there is a change in circumstances, but such modification is only effective from the point when a request for a change is made forward. Almost never is a backward modification permitted absent some showing of fraud. Support is usually ordered until the child reaches 18 years of age or graduates from high school (but not past the age of 19 ½). Nonpayment of court-ordered support may lead to a contempt of court citation, resulting in a jail term. An additional remedy is available allowing for the suspension of a nonpaying parent's driver's license. If the payer is self employed or often unemployed, support collection can be a long frustrating process.
Who Gets the Tax Deduction
The custodial parent is entitled to claim the minor children as dependents for all tax purposes. If the parents agree the noncustodial parent may have this deduction. The custodial parent must furnish a signed IRS Form 8332 each year to the noncustodial parent to be filed with his or her income tax forms. A split of deductions can be negotiated for other financial concessions.
Miscellaneous Children's Issues
Child support may include a contribution for child care expenses through the end of the school year when the child turns 12.
Uninsured health care expenses for the children will usually be divided between the parties based on the ratio of their incomes.
PARENTING TIME
The noncustodial parent almost always has parenting time. The judgment may order reasonable parenting time, leaving it to the parents to decide the dates, or it may provide specific parenting time hours and dates. If long distances must be traveled for parenting time, arrangements can be made to share the cost. Child support is usually reduced by 50 percent when the child spends six or more consecutive overnights with the noncustodial parent.
Judgments of divorce provide that the minor child may not reside outside of Michigan without the court's approval. To move from Michigan with the child, the custodial parent must petition the court for an order. The other parent may object to this if they feel the move is not for a good reason. In addition, a move even within the State of Michigan of more than 100 miles from the residence in effect when the first custody order is entered is prohibited without court approval except in very limited circumstances.
Parenting time orders may be modified on a showing of a change of circumstances.
The law also allows parenting time that has been wrongfully denied to be made up. A custodial parent who wrongfully refuses to allow parenting time may be held in contempt of court and be fined or sentenced to jail. Additionally, a parent who fails to comply with parenting time orders may have their driver's license suspended. Failure to pay child support is not an acceptable reason to deny parenting time.
PROPERTY
The parties usually arrive at a settlement of their property rights. If the parties do not reach a settlement, the court will decide the matter after a trial. Mediation is also used to assist in reaching a settlement. Another alternative is binding arbitration. Such arbitration is binding on the parties like a trial but the arbitrator is a private attorney which may be chosen by the parties or appointed by the court at the option of the parties. The parties must both agree to use binding arbitration in order for it to take place. The court cannot order the parties to binding arbitration. Arbitration is not recommended in cases where domestic violence has been an issue.
You must be absolutely sure that you understand and accept the settlement as written or placed on the record in open court, because the property settlements are not modifiable, except in cases of fraud, clerical error, mutual mistake, or gross unfairness in the initial trial.
Your pension earned during a marriage is marital property subject to division. If your property includes retirement or pension plans, your attorney can explain your rights under the Qualified Domestic Relations Order (QDRO) procedures.
In determining property issues, the court may consider many factors, including:
contributions of the parties to the marital estate;
necessities and circumstances of the parties;
earning abilities of the parties;
past relations and conduct of the parties (fault)
general principles of equity.
Generally, property of the marriage is divided fifty-fifty. There are often issues of separate property, pre-marital or inherited property. In Michigan, courts can consider in divorce even these types of property. A pre-nuptial agreement will sometimes resolve the issue of property acquired before marriage. However, fraud, failure to fairly disclose assets or other appropriate circumstances may defeat such agreements.
DEBTS
If you have a contract with a lender (such as a home mortgage or car loan), the divorce court cannot change that. You may sign the title to a house or car over to your ex-spouse, but you will still be indebted to the lender. Hold harmless and anti-bankruptcy provisions can be included in your final judgment, but such provisions are only enforceable between you and your ex-spouse. They have no effect against the creditors. If one party does not abide by the order, further litigation may be necessary in order to have the court enforce the provisions of the judgment.
ATTORNEY FEES
Your attorney will quote you an hourly rate for attorney time and support staff time. You will be charged at the quoted rates for consultations, correspondence, telephone calls, and research work, court time, filing and hearings. Since you have retained our Law Firm and not any single attorney, if an emergency or scheduling conflict arises and your assigned attorney is not available, another attorney in our office will represent you.
YOU are responsible for all attorney fees, court costs, filing fees, fees for service of pleadings, appraisals, expert witness fees, etc. If your spouse is ordered to contribute to your attorney fees and he/she actually pays, you will be given credit for the amount your spouse pays.
Please note: We cannot tell you what the total fee for your divorce will be because we have no way of knowing how much time will be spent on your case in advance. The time spent on your case and the costs incurred depends on the Judge, selection of counsel by the opposing party, the opposing party's conduct, complexity of issues, and numerous other factors beyond our control.
Five Things to Consider To Dramatically Reduce Your Legal Fees
Every member of our staff understands this is a very emotionally and financially trying experience for you. We also understand you wish to keep your costs as low as possible. The following information is not intended to prevent you from contacting your attorney or his/her staff any time you feel you need to, nor to make you feel as if you are being a burden or bother. Please contact any one in our office anytime you feel it is necessary. However, the following information is intended to alert you to how litigation costs can escalate dramatically and to inform you of some very simple tools and steps you can take to help you control these costs. The following are five key things you can do to curb your litigation costs.
1. You can greatly reduce "legal footwork" by clearly and concisely completing all the information requested on the Client Interview Form, or any other subsequent documents in a timely manner.
2. Any information you can get regarding bank accounts, annual pension reports, stocks, etc., will help and save you attorney/staff time in trying to obtain information through the other attorney or other legal process.
3. A letter is an inexpensive way of keeping your attorney up to date on information they may need to know about your case or asking questions about things you don't understand. If you wish advice on a current situation, a letter gives your attorney a chance to think about your problem before they communicate with you. It takes much less time for your attorney to read a letter than to have a telephone conversation or conference.
For example if your attorney spends 24 minutes (0.5 hours) on the telephone and another 12 minutes (.25 hours) writing a memorandum on that call for the file, it will cost 0.75 hours at $165.00 per hour or $123.75. If on the other hand, your attorney spends 6 minutes (.25 hours) reviewing a letter and another 12 minutes (.25 hours) discussing it with you it will cost .5 hours at $165.00 per hour or $82.50. As you can see, frequent or lengthy telephone conversations add up quickly. In addition, a letter provides a written document that your attorney can keep in your file for review. And if you are confused about something, putting it down on paper and seeing it in black and white is often helpful to both you and your attorney.
4. Since you will be billed for all of the time that your attorney spends on your case, you will save money whenever you can do your own negotiating, for example, on day to day issues such as who pays the car insurance or other bills, parenting time arrangements, etc. Whenever a lawyer is asked to negotiate on your behalf costs escalate. You will pay for (1) your telephone call to your attorney, (2) the telephone call to the other attorney, (3) his reply to your attorney after contacting your spouse, and (4) your attorney's response to you.
If each call is a minimum of .25 hours, each round of negotiations will cost you at least 1 hour of time at $165.00 or $165.00. If round one does not solve the problem, we begin round 2. It is far more expensive to use your attorney to negotiate those matters than if you can resolve them on your own.
5. Write down several questions at a time and submit them all at once to your attorney for review. You will kill multiple birds with one stone and make full use of the time you are billed for.
You might be able to think of other ways you and your attorney can work together efficiently. If each of us considers what needs to be done and the cost and benefit of each task, we can do the best job for the case with the available resources. If you have any reasonable questions about a billing item or cost for which you were charged, you will not be charged for the time spent discussing such matters.
AFTER THE DIVORCE
After the divorce case is concluded, you might need an attorney for the enforcement of support, parenting time, or property provisions. Custody, support, and parenting time can be modified under some circumstances and remain under the jurisdiction of the court.
CONCLUSION
Some divorce cases end in reconciliation of the parties. If there is a chance to save your marriage, we will be pleased to help you do so, including recommending a marriage counselor. If you believe the marriage is over, we will do our utmost to obtain a judgment of divorce that is satisfactory to you.
This document is provided to give you an overview of divorce law and procedures. The law is constantly changing, so some of this discussion might already be outdated or not apply to your case.
For specific advise about your case, consult your attorney. At Ronin Legal Services we help our clients protect their families and their finances. We keep your kids and your money where they belong.
Ronin Legal Services, P.C.
Protecting Your Family and Your Finances
20372 Eureka
Taylor, MI 48180
(734) 324-3100
www.roninlegalservices.com
