Does It Matter Whether I Am the First One to File a Complaint for Divorce?
In Michigan, there is no real advantage to filing first. Sometimes, a person will be advised to file quickly in order to obtain a court-ordered “freeze” on marital assets if he or she suspects their spouse is transferring assets in anticipation of divorce. This is known as a “status quo” order or restraining order. A common technique among divorce lawyers in Michigan is to file a Counterclaim for divorce in answer to a Complaint, which has the effect of making both spouses the “Plaintiff”. There is no legal significance to this tactic, although the counterclaim allows either party to appear in court at the end of the divorce to receive the formal divorce ruling from the judge. Without a counterclaim, the Plaintiff must be present to receive the ruling from the court.
How Long Will My Divorce Take?
A divorce is not official until a judgment of divorce is entered in the Court by the Judge. In Michigan, there are two statutory waiting periods that must expire prior to the entry of a judgment for divorce. These time periods depend on whether the divorce involves minor children. If there are no minor children during the divorce and the wife is not pregnant, the parties can enter a judgment in 90-days after the complaint is filed. If minor children are involved, the judgment cannot be entered until 180-days. The legislative purpose of these wait periods is to provide an opportunity for the parties to reconcile. On occasion, a Judge may waive the 180-day wait period if there is a compelling reason to do so (usually involving the safety of the minor children). The 90-day period in cases without minor children cannot be waived.
Many divorce cases are not completed upon expiration of the statutory wait periods, even though the parties want to be divorced. This is due to the complexity of the case or because there are unresolved issues that need resolution by the Judge or through an alternative dispute resolution process such as mediation or arbitration. Depending on the issues, the attorneys and the parties, some divorces take more than a year to complete. Even when the divorce is “final”, there are often post-judgment issues, particularly in cases with young minor children, that require additional attorney representation and subsequent trips to court.
How Much Will My Divorce Cost?
It is impossible to predict the total cost of your divorce because it depends on several factors. The most important of these is the reasonableness of the parties and the respective attorneys. In a true “pro-confesso” divorce (meaning there are no disputed issues and the parties agree on every aspect of the divorce in the form of a consent judgment for divorce), overall fees are usually contained. We always advise our clients that litigation costs money. It is always better if the spouses negotiate their own material terms of a settlement. Many cases that start out as an uncontested divorce, however, turn into a disputed proceeding involving several trips to court and extensive negotiation between the attorneys to achieve full resolution. This is obviously more costly. At your initial interview, we will attempt to determine what issues are present in your case and assess their significance. From this assessment, we will be able to provide you with a projected range of attorney fees.
If I Am Awarded Custody of My Children, how Much Will My Spouse Have to Pay in Child Support and When Can I Expect to Begin Receiving This Support?
Child support is awarded on a temporary basis when the parties have separated and one of the parties has primary physical custody of the children. Support is usually not awarded when the parties are living in the same home.
Child support is determined by a statutory formula drafted by the Michigan Supreme Court. This formula takes the relative income of the parties into account to set the level of child support. A good attorney will always seek to verify the parties’ income when determining the amount of child support. Sometimes one of the legal questions presented in a divorce is the determination of income for a spouse that may be attempting to hide his or her income.
Our law firm can provide you with a preliminary child support estimate at your initial consultation. We have specialized software approved by the Family Law Section of the State Bar of Michigan that easily generates a child support report. This will be used to obtain a temporary order of support when your case is filed. It usually takes a few weeks for support payments to be processed through the Friend of the Court. Sometimes, the non-custodial party agrees to make temporary payments voluntarily and such payments can be instantaneous.
When child support is paid through the Friend of the Court, an income withholding order is entered by the court directing the non-custodial parent’s employer to automatically deduct a specified amount from each paycheck. This automatic deduction is then deposited into an account with the Friend of the Court and made available to the custodial parent.
Like custody and parenting-time issues, child support can be modified to reflect changes in the parties’ circumstances such as an increase or reduction in income or loss of a job.
Counseling and Confidentiality
Generally, your communications with a physician or therapist are protected by the doctor-patient privilege. In some cases, however, a party waives this privilege by consenting to the disclosure of medical records or by placing his or her treatment into issue in the divorce case, making the records discoverable. Some difficult issues in this area arise when a client waives a doctor-patient privilege to one treating physician but not to others and the opponent attempts to seek disclosure of all treating professionals. Parties to a divorce will need legal counsel to determine the best approach to navigate in this area.
It is also common to have court-ordered psychiatric examinations of an entire family. These are usually in high-conflict situations and the evaluator’s report and recommendation are reviewed by the attorneys and the court.
There are also statutory exceptions to the confidential nature of your medical records. For example, a health care professional has a statutory obligation to disclose evidence of physical abuse to the proper authorities and this duty supersedes any confidentiality.
Dating During Divorce
In modern times, it seems that the courts in Michigan are less concerned with your private life than they once were. There are, however, some warnings you must heed in the area of dating and sexual relations during your divorce. First, by openly dating, you are risking the infliction of emotional pain on your spouse and this may significantly impede the chances of settling your case.
If you have children, there are additional concerns. Most family counselors and/or therapists will advise that exposing your minor children to a “significant other” during the divorce will add needless confusion and anxiety to their already mounting concerns. Some judges, referees or Friend of the Court counselors will recommend that your new significant other not be present during overnight parenting time during the divorce. It is always best to complete your divorce and allow your children to adjust prior to openly dating.
Adultery is of greater concern. First, it remains a crime in Michigan (a felony), although prosecutors have long-refrained from prosecuting sex-related cases between consenting adults. However, an adulterous affair may have an impact on custody of your minor children, spousal support and the property settlement of your case. The moral fitness of the parties is one among many factors the court will take into account when determining custody and support. Again, while the courts, in general, are less concerned about your private life in modern times, if your adulterous sexual relations affect your minor children in any way, it may become an issue in your divorce. It is best to wait until your divorce is completed before resuming sexual relations.
Also, any money you spend on dating or on your lover may be deducted against you in the property settlement of your divorce decree.
Separate Legal Counsel?
It is always best to have independent legal counsel when preparing to file for divorce or at least prior to agreeing to the entry of a consent judgment of divorce. Once a property settlement is entered with the court, for example, it cannot be appealed and is rarely, if ever, modified by the court.
In some cases, however, where the terms of the divorce are agreed upon, one attorney is able to draft the judgment of divorce and have it entered with the court. Even in these cases, the attorney will represent only one of the two divorcing parties and the other person is essentially unrepresented. This most often occurs in divorces without children. If such an arrangement is consented to by both parties, there is an unquestionable significant savings in legal fees.
What Role Will the Friend of The Court Have in My Divorce?
The Friend of the Court (FOC) is usually only involved in divorces involving minor children or in paternity cases. Sometimes, however, even a divorce that does not involve children will proceed through the FOC. Family Court judges have the authority under the Michigan Court Rules to refer any matter to a Referee.
Each divorce or paternity case is assigned to a judge. In turn, each judge’s docket is divided among that judge’s referees. A referee is a lawyer appointed by the judge to consider the common issues of custody, support and parenting time in each case and to make recommendations to the court for resolution of these issues. Following this initial determination, the parties can accept the referee’s recommendation or can reject them and have a hearing before the judge assigned to the case for a final determination.
In addition, each referee has a staff of family law professionals usually consisting of a family counselor and a child support specialist. Some county court budgets do not allow for full staffing of these positions and the referee will play a larger role.
You will meet your referee at the Early Intervention Conference. This is where the referee will discuss with you and your spouse what you believe the issues are in your case. Attorneys play a limited role at this conference and the goal is to communicate with the referee so that problem issues can be identified and addressed, at least temporarily.
Whenever possible, it is usually best to attempt to work things out with your spouse during a divorce. Obviously, this is easier said than done; after all, you are involved in a divorce. Sometimes the prospect of a clean break coupled with a new start motivates parties to cooperate. The effect of cooperation between the parties during divorce is to minimize the involvement and interference of the FOC.
Will My Case Settle or Will We Have to Go to Trial?
The overwhelming majority of divorces settle prior to trial. In fact, the courtroom is often the least appropriate forum in which to publicly air the sensitive personal issues that are involved in any divorce. In rare cases, however, a judge is called upon to determine the issues that cannot be resolved through negotiation between the parties and their attorneys. In Michigan, divorce trials are conducted without a jury. A Family Court judge will decide the issues in your case if it goes to a trial.