Divorce Procedure

Divorce & Family Law Attorneys Located in Canton, Michigan

All divorce have some common elements. This may include filing of the following documents:

1.    Summons.

This document notifies the other spouse that he or she is being sued and has 21 days (28 days if served by mail) to respond. If the other party does not respond then a default may be taken.

2.    Complaint.

The complaint states the names of the parties, where, when, and by whom they were married, names and birthdays of any minor children, wife’s and husband’s name before marriage, length of residence in county and state, date of separation, grounds for divorce, a statement as to property and debts, and the relief requested. Michigan law mandates that a party must reside in Michigan for 180 days and in the county where suit is started for at least 10 days prior to the date of filing.

3.    Affidavit of Service and Return of Service is filed when service is made.

4.    Uniform Child Custody Jurisdiction Enforcement Act Affidavit.

This document alerts the court about where the children have resided in the past five (5) years and that no custody action is pending regarding the children. In order to have jurisdiction to award custody, the children must have resided in the state for at least the past six (6) months.

5.    Verified Statement to the Friend of the Court.

This document informs the Friend of the Court, (FOC) of the essential facts such as names, addresses, employers, incomes, social security numbers,  etc. If the parties will elect to “opt-out” of the FOC system, this is not required, but a motion must be filed.

6.    Record of Divorce.

This is a statistical record required by the state.

7.    Motions for Injunctions / Orders.

Sometimes a spouse may be concerned that upon learning of a pending divorce action, a spouse will secrete assets. Sometimes attorneys file motions to preserve the status quo to prevent dissipation of assets. If you have any reason to believe that you may need a status quo order, you will want to tell your attorney your concerns. Stelmock Law Firm, PC will explain this procedure to you in detail and ask if you want an Injunction or Ex-Parte Order.

     Ex Parte Orders.

Motions to preserve the status quo are sometimes filed to ensure that the children’s residence is not changed prior to entry of a temporary custody, parenting time, and support order.  Such motion must be verified by oath or affidavit. A temporary injunction or order, may be issued restraining a party from selling, disposing or dissipating assets. Other types of injunctions may be requested.

8.    Filing Fee.

At the time of this writing (January 2015) the filing fee for a divorce is$150. If there are children, the filing fee is $230. Other costs may be incurred during the proceedings, including the cost of serving papers and entry of Judgment.

9.     Other costs.

If your divorce is contested, you may incur other costs for such things as appraisals of assets, expert witness fees, transcript costs for depositions and etc.

10.    Notice of Hearing, Motions, and Filing Fees.

Sometimes in the course of a divorce, your attorney may have to go to court to get your spouse to cooperate with discovery or to enforce the terms of a temporary order.  A Motion is filed with the court for some type of relief. A Notice of Hearing advises when and where a hearing will be held. There is a minimum filing fee of $20 for each Motion that is filed.

The Plaintiff is the party who files the lawsuit and the Defendant is the person against whom the case is started.  Each county has an office of the Friend of the Court and their job is to assist the Court. The FOC usually investigates the incomes and circumstances of the parties and makes recommendations about alimony, support, custody, and visitation rights. They also collect and distribute alimony and support payments. The FOC may cooperate to seek enforcement of court orders dealing with support, visitation rights, and alimony.

Once the Complaint and Summons is served, the Defendant must file an answer to the Complaint.If service is made in person, the Defendant has 21 days to respond. If service is made by mail, he or she will have 28 days to respond. Your attorney may extend the deadline. An answer to the lawsuit is, in effect, a response to each paragraph of the Complaint.

Once the answer is filed, the case is contested (in some jurisdictions a Praecipe must be filed with the answer).  If the Defendant fails to respond, an order of default is entered and the matter becomes an uncontested divorce case.  Sometimes the Defendant may not only answer the Complaint, but may also file a Counter Claim. If that occurs, then the Counter Claim must be answered by the Plaintiff in a timely fashion.

Michigan law compels the parties to wait at least 60 days before the Judgment of Divorce is granted, but if there are minor children then the waiting period is Six (6) months. Sometimes the Six (6) month period may be waived if your attorney makes a proper showing of good cause why the waiting period should be waived, but this rarely occurs. The court requires a “pro confesso” hearing before granting the divorce, which means that a witness testifies that the facts set forth in the Complaint are true. A witness is not necessary if the matter is uncontested when heard by the Court.

Temporary orders for custody, support, alimony, mortgage payments, medical payments, visitation, injunctions and other relief will usually be requested when you file your divorce case. Final orders are entered as part of the Judgment of Divorce. Temporary orders of support are usually based on a theMichigan Child Support Formula. Generally, alimony and support are based on needs and ability to pay. The Court may take into consideration the life-style of the parties in entering support orders.

If child custody is disputed in your case, the Court will have to consider and make findings of fact on each of eleven factors listed in the child custody act. Sometimes the parties will request psychological evaluations to assist the court in making a decision about who the primary custodial parent should be. If this is true in your case, you will want to spend a lot of time consulting with your attorney about the procedures, the preparation, and the strategy of your case.

The Court may order your spouse to pay temporary fees to assist you with the costs of obtaining counsel.  A motion filed with the court will be required to obtain this kind of relief.  Please call us at 734.927.9782to discuss your matter.