FAQ’s in Divorce Cases
Almost every client who comes to see a lawyer has questions, and that is particularly true with divorce cases. There are not only complex legal issues that must be addressed, but there’s the prospect of the emotional and psychological roller coaster ride that comes along with it. Below are a number of the frequently asked questions that clients bring to us on a regular basis, and which people should be knowledgeable, even before they meet with us. While we can’t provide the answer to every case, and the answers posted here won’t be applicable to every situation, we can provide prospective clients here with some basic information, so they can become more familiar with what to expect. An educated client is the best client, and understanding the basics below, will help us explain the nuances or exceptions that may apply to your case.
How long will my divorce take?
Every case takes as long as it takes, and the answer always depends on how much the parties agree or disagree. However, there are statutes that set minimum time frames for divorces in Michigan, and the Supreme Court Administrator’s Office has set time standards for judges to follow regarding the length of time a divorce case can stay on their dockets.
If you are filing for a divorce, and you do not have any minor children born either during the marriage, or before the marriage but with whom your spouse and you are the parents, the statutes require that the parties may not get a divorce before the passage of 90 days (or three (3) months) AFTER the filing of a Verified Complaint for Divorce. However, most judges (though not all) will allow for the parties to enter into a waiver of this waiting period, if they both agree and the parties have resolved all of the issues. Generally speaking, the more complex the financial situation of the parties involved in the divorce, even when there are not children involved, the longer it takes to get things finished. The reason for that, before you settle your case, a good attorney, and a good litigant, will want to make sure that they know all the facts possible about your situation, to ensure the best outcome.
If you are filing for a divorce, and you have children either born during the marriage, or before you were married but with whom your spouse and you are the parents, the statutes require that the parties may not get a divorce before the passage of 180 days (or six (6) months) AFTER the filing of a Verified Complaint for Divorce. Most judges (though not all) will allow for the parties to enter into a waiver of this waiting period, if they both agree and the parties have a resolved all issues, including those related to parenting time and custody. Generally speaking, while we will try to resolve your divorce as quickly as possible, you should expect that a divorce with children will take the six-month minimum to resolve. Again, generally speaking, we like to have all the information possible before advising you on how to proceed regarding custody, parenting time, child support, and property division. In these cases, particularly those that are high conflict or involve a personality problem, six months is simply not enough time to resolve the issues.
The Supreme Court Administrator’s Office, or SCAO, has set forth policies and time standards by which the Circuit Courts have to operate with regard to Domestic Relations matters. Cases are supposed to be handled, and tried to conclusion, within one year of their being filed. However, that does not mean cases do not occasionally go over time standard, or require more time to resolve even than one year. However, as a general rule, you can use the statutory minimums and the policy mandates from SCAO as a good guide as to how long things will take.
How do you file for a divorce?
Clients often feel overwhelmed at the prospect of a divorce and filing for one is not a simple process. While the Courts do provide basic forms to assist persons who want to file for a divorce without an attorney, they don’t provide much guidance on what the forms mean, what the process is, or how much a filing costs. Here are some basics, but you should consult with us before doing anything or filing any paperwork with the Court. Frequently, the forms provided by the Court won’t give you the options you are seeking. We draft our complaints for divorce individually for each client, tailored to the facts of your case.
No matter what county you live in or what your situation is, every divorce is initiated by the filing of a Verified Complaint for Divorce. A complaint for divorce sets out the minimum facts that are needed to start the divorce process. All divorces are handled by the Circuit Court, and must be filed at the Circuit Courthouse for the county in which you reside. A complaint for divorce where there are no children costs $175.00 to file. A complaint for divorce with minor children costs $255.00 to file.
In order to file a complaint for divorce, you must have been a resident of the State of Michigan for the 180 days prior to filing it. You must also have been a resident of the County where you file for divorce for the 10 days prior to filing the complaint.
When you file your complaint for divorce there are a number of other legal decisions that you should have an attorney discuss with you. For example, do you want to file ex parte motions with the court regarding interim maintenance, child support, parenting time, or custody? Are mutual restraining orders regarding the sale or division of property prior to the conclusion of the case necessary? All of these are questions are important, relevant, and potentially impactful to your matter. You should discuss them with any attorney you choose to consult with. If the attorney you talk to doesn’t know about such motions and order, or does not know how or when to file them, you may wish to move on to a different attorney.
In any event, YOU CANNOT GET DIVORCED WITHOUT FILING A VERIFIED COMPLAINT FOR DIVORCE IN A COUNTY APPROPRIATE JURISDICTION. You have to file a lawsuit with your circuit court, before you can be granted a divorce.
Am I entitled to Spousal Support/Alimony?
For many clients, this is the first question they ask, and in many cases, rightfully so. The bluntest answer to the question is, no, the law does not provide that anyone is “entitled” to receive spousal support, or what we used to refer to as alimony. However, if you meet certain statutory and legal criterion, your case may be one in which spousal support is awarded, or to which your spouse would be entitled to receive spousal support from you. Spousal support is designed to ensure that, where appropriate, one party or the other is able to maintain the lifestyle they were accustomed to during the marriage, but cannot do so without the imposition of spousal support. A good lawyer who knows this area of the law well, won’t definitively say “yes” or “no,” but instead, will provide you with detailed information about why you may or may not have a good claim under the law.
Further, the statute that provides for spousal support in Michigan requires that if a Court orders spousal support, it is for the life of the recipient, but, can be modified in the future, if the circumstances of the parties allow for such a modification. Such future changes are also controlled by the same factors that come into determining whether an award of spousal support is appropriate in the first place. If the parties resolve their case in mediation or other alternative dispute resolution, they can enter into an agreement that Spousal Support only be for a set term of years, and/or only until a fixed amount of spousal support is paid. The parties can also contract for payment of spousal in one lump sum payment, should the parties agree.
Some things to consider, however, to see if your case is one where spousal support may be an issue, would be the following:
How long were you married? The longer the marriage, the more likely that spousal support may be appropriate.
Are/Were both parties working and employed? If both parties are working or worked in the past, it can impact the likelihood that spousal support could be awarded, but also the amount awarded.
Are/Were both parties able to work or find employment? If one or both parties cannot work, that can impact whether spousal support is necessary. In contrast, if one party is able to work but has chosen not to, that can also impact whether spousal support is necessary.
What is the education level of the parties? If one party has a substantially greater level of education, and has substantially greater long term earning capacity, that can have a substantial impact on whether to award spousal support or not.
What is the value of the remainder of the estate being granted to each party? At the outset of a case, this question can be hard to answer. However, in many cases where clients have substantial assets, this factor can come into play in trying to determine the appropriateness of whether to grant spousal support. On the other hand, in cases where there is not a substantial amount of wealth to be divided between the parties, that factor may downplay the likelihood of an award of spousal support.
Is one party at fault for the breakdown of the marriage? Even though Michigan is a no fault divorce state, if one party’s behavior is so egregious as to clearly be the result of the marriage relationship breaking down, the possibility for an award of spousal support increases.
While there are other factors, these are the most commonly seen and the ones that seem to have the most sway in decision making by Court’s and mediators/arbitrators in determining whether or not to award spousal support to one party or the other.
I want full custody of my children. Is that possible?
Anything’s possible. However, determinations of custody are complicated, and it is rare that one party ever gets “full custody” of a child or children. First, you need to know that what people commonly think of as “custody” is different than what the law defines as “custody.” Commonly, people think of “custody” as which parent has physical control of the children. However, that law breaks “custody” up into two separate things. “Custody” for lawyers and the Family Court System typically is what is referred to as “Legal Custody.” Legal Custody of a child typically means a determination of which parent can make major decisions for the child, such as, religion, education, and medical treatment. In the majority of divorces, even where there is serious contention between parents, the Courts generally grant the parties joint legal custody. Only in the rarest, most high conflict cases, where one parent or the other is provided numerous opportunities to correct errant behavior, will one parent be granted sole legal custody.
The decision related to which parent has “physical custody” of the minor children is really a determination of how much “parenting time” each party will have with the children. Rather than being designated the “primary or sole physical custodian” of a child, the Court will frequently designate a “primary residence” for the children, and then establish a specific parenting time schedule for the parties to follow. Where parents have equal parenting time, that is commonly referred to as “joint physical custody.” In both cases, the Courts participate in a complex series of legal analyses to try and make these determinations if the parties cannot agree, or where the parties have initially agreed, but where circumstances have arisen that require the Court to review their initial custody or parenting time determination.
If your head is spinning, don’t worry, this complex issue confounds many lawyers, even those in the practice of family law. There is a complex analysis that has to be made by Judges and Courts across Michigan in order to assist them in making these determinations. The Courts first must determine whether the child or children look to one parent or the other, both parents, or neither parent for love, guidance, affection, discipline and the necessities of life. Such a finding is called determining the child’s established custodial environment. The Courts have set parameters on what evidence and facts the Court may consider in making such a determination, but, the Court must make this determination BEFORE any custody decision can be made.
After determining which parent, neither parent or both parents have an ECE with the child or children, the Court must determine what parenting time schedule is in the best interests of the minor child. The law requires that the Court consider 12 different factors in determining custody. No one factor is dispositive alone, and the Court may give whatever weight it feels appropriate to each factor. Those factors are the following:
The love, affection, and other emotional ties existing between the parties involved and the child.
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.
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.
The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
The permanence, as a family unit, of the existing or proposed custodial home or homes.
The moral fitness of the parties involved.
The mental and physical health of the parties involved.
The home, school, and community record of the child.
The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.
Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
Any other factor considered by the court to be relevant to a particular child custody dispute.
Not only does the Court have to consider all the factors, but there are boundaries and limitations on the types of evidence that can be presented in Court with regard to these factors. While the information here can provide you, as a client, the basic information you need to gain an idea of what the Courts are going to have to do in your case, you should also see how important the assistance of a competent attorney can be when custody is an issue in your case. Custody determinations are, often times, the most contentious in divorce and family law cases. Once the Courts make their determination, while it can be modified at a later date, it is often very difficult to change that initial determination, in most cases. Make sure that you have a good advocate for you when it comes to determining custody at the outset, who can help you and the Court navigate the complex and choppy waters in this area of family law. Your lawyer shouldn’t make promises to you about custody outcomes, and any definitive answer to this question should be looked upon skeptically.
Will my ex have to pay me child support?
That depends. What most people don’t understand about child support is, the determination isn’t based solely on which party makes more, or solely on which party has more parenting time. Child support is based upon a mathematical formula, which provides a certain amount of emphasis on the number of overnights each party has with the child or children, and the income of each party. This is called the Michigan Child Support Formula or MCSF.
However, the notion of income is not as simple as looking at someone’s W-2 income on their tax returns, or looking at their last couple of pay stubs. The Michigan Child Support Formula Guidelines provide a comprehensive set of rules by which the Courts and attorneys determine the proper amount of child support. The child support guidelines are reviewed and modified every four years, with the most recent ideation being released in January of 2017. Income can include a substantial number of other sources of funds than simply a paycheck. Gifts from family provided on a regular basis, or regular payments made by a non-spouse significant other can be considered income for purposes of the child support formula.
That being said, the more overnight parenting time you have versus the other party, and the lower your income compared to that of the other party, the more likely you are to receive child support and the higher that support amount is likely to be. Gone are the days where dad always pays mom, as well. The formula does not discriminate based on gender or in any other way. If mom earns more than dad, and they have equal parenting time or dad has more overnight parenting time, mom likely will owe dad child support.
How much will my divorce cost?
The question most often asked by clients. The answer is not always an easy one. Each case is unique, though good lawyers can see what type of family law case you have, look at the amount of acrimony, the complexity of the matter and discuss the ball park of what costs could be. That being said, the more issues your case poses, the more your initial retainer is likely to be. The number of issues, the level of acrimony, the degree of difficulty in dealing with financial issues, and the possibility of support, all impact the final total.
The more people fight and the more there is to fight over, the higher the cost of a divorce in general. Here, we try to limit costs for clients by, most importantly, educating the client about the process and how to minimize the areas in which conflict can arise. Conflict in divorce cases is inevitable to some degree. Being proactive and prepared helps to stop the other side from escalating the matter too far and in a manner that simply increases costs. The question should be asked, but be wary of attorneys who will tell you up front that your case will cost no more than a certain amount or that they can handle the whole case for a certain fixed amount. Feel free to talk to several lawyers about cost of litigation and for handling your matter before settling on an attorney. The more information that you have, the better client you will be.
Grosse Pointe Farms, MI 48236
(313) 421-8083 Daniel
(313) 458-8276 Dodd