Click one of the categories below to see just answers to frequently asked questions about that topic. Or scroll down to see all of our FAQs.
It is impossible to list all the questions and answers relating to a divorce or custody action. Even the “answers” above might be different in a particular case—and every day, the Michigan Legislature and the appellate courts of the state are passing new statutes and deciding new cases which impact family law.
As a result, the information above is not a substitute for advice from a competent attorney.
In some cases, an attorney is just part of a team that will be needed. Other members of the team could include therapists, accountants, appraisers, private investigators, tax specialists, bankruptcy experts, realtors, and educators.
By filing a complaint in the circuit court.
You have to be a resident of Michigan for 6 months and of the county in which you file for at least 10 days. Either the plaintiff or the defendant can meet this requirement.
The filing fee for a divorce with minor children is $230, and the filing fee for a divorce with no minor children is $150. The filing fee for a custody action (where the parents were never married) is $150. The attorney fees vary with the complexity of the case and the success of negotiations. Most divorces will cost between $2,500 and $5,000 in any case. A highly contested divorce could cost ten times that ($20,000 to $50,000) or more. That is one of the reasons that mediation and compromise are so attractive. Court appearances alone can cost between $1,000 and $3,000 for one day.
There is a mandatory six-month waiting period to get a divorce if you still have any minor children and a two-month waiting period if there are no minor children (or if you never had children). Sometimes cases take a long time to resolve; however, the Michigan Supreme Court wants the trial courts to finalize divorce cases within a year, but highly contested cases can take longer.
Most attorneys will not represent both spouses. It is possible, however, for one of the spouses to hire an attorney and then for that attorney to do the paperwork. The other spouse would just represent himself or herself (which is called “in pro per”) in that case.
The other option is for the two spouses to hire a mediator who would help to negotiate the case. That mediator could then draw up a proposed agreement to be incorporated in the judgment of divorce. Mediators suggest that an attorney review the agreement for each individual party before it is signed.
Most attorney-mediators are familiar with the law that applies to divorces and custody actions, and he/she would probably be willing to explain the options that are available to resolve custody, parenting time, child support, property and debt division, and spousal support issues.
Signing an agreement is not the end of the divorce action. A judgment of divorce must be entered by the court. The mediator may, or may not, be willing to draft a judgment of divorce. If an agreement has been signed, any competent attorney could draft a judgment of divorce that incorporates that agreement.
In today’s world, the courts no longer consider a move out of the former home as “abandonment.” If there is a risk of domestic violence or if the children are exposed to considerable conflict, it is better to separate as soon as possible.
Despite the fact that the courts no longer consider it “abandonment” if one party moves out of the marital home, minor children may experience the move as an abandonment. The ideal is to have a written agreement about parenting time or a court order for parenting time before moving out of the house when there are minor children.
You will be taxed at your own rate if you liquidate the account. If this is your spouse’s account, however, you will avoid the 10% penalty if you liquidate the account before you are 59 ½ years old.
There are factors that govern the distribution of property in Michigan during divorce:
The court starts by requiring the parties to identify all the property of the marital estate. Excluded from that is property that a party owned prior to the marriage and retained in his/her own name as well as gifts and inheritances.
The next step is to evaluate the property. If the property is like-new and recently acquired, then the cost at the time of purchase might still represent the value. Often, the parties can actually agree on a value. Other times, the parties obtain appraisals from third parties or agree to a joint appraisal. If property that is owned individually actually appreciated during the marriage through the active efforts of one or both parties, then the court can include the amount of appreciation but not the underlying value. The parties have to remember to subtract any indebtedness associated with the property and just consider “net value.”
As an aside, if there is a pension or retirement fund that was acquired partly during the marriage and partly before the marriage, the court includes only the portion that was earned during the marriage. This is called the “coverture fraction.”
Some appraisals are a little challenging, as with start-ups or small companies. A certified public accountant is usually engaged to appraise business interests, including stock options.
The last step is to sell or distribute the property. If it is sold, the parties usually split the net proceeds of sale. If it is distributed in kind, then the parties keep track of the value that is associated with that asset to be sure that, in the end, the final distribution of all property and debt is fair.
This approach would not apply if the parties had a pre-nuptial agreement that was enforceable.
The only grounds for modifying a property division after the divorce is final are grounds relating to fraud, mutual mistake, failure to disclose property or debt, and similar issues. Even then, a party has one year at the latest to file a motion to amend the judgment of divorce in most circumstances. If a case has gone to trial and there is a judgment from the court, one option is to file a motion for reconsideration if the judgment is unacceptable. The second option is an appeal to the Court of Appeals, which must be filed within 21 days of entry of the judgment. Timing is everything.
There are some computerized formulas that attorneys use to get an idea of whether you will owe alimony and if so, how much and for how long. These formulas are not binding on the court like child support guidelines are.
The court considers the following factors in making a decision as to whether to award alimony:
The main purpose of alimony is to balance the incomes and needs of the parties in a way that would not impoverish either party. There is no sense of “entitlement” when it comes to alimony.
If the court decides to award alimony, it must then consider the following factors in deciding the amount of alimony:
Some courts are unwilling to award any substantial amount of alimony unless the parties have been married for 10 years or more. Shorter marriages may warrant some form of “rehabilitative alimony.”
In Michigan, parties can agree to an award of alimony that cannot be modified. The court itself cannot put these limits on alimony, but the parties can and then the court will enforce it.
If alimony is “barred” at the time of the divorce with regard to one of the parties, then the court cannot later award alimony to that party.
Alimony is the same as spousal support. The words “spousal support” are preferred these days.
A Michigan court can award the retirement or pension account of one spouse to the other in a divorce using a “qualified domestic relations order” or an “eligible domestic relations order.” This order, signed by the judge, orders the plan administrator to divide the account as instructed (e.g., 50/50) and then the one spouse (e.g., the wife) will become part owner of the other spouse’s (e.g., the husband’s) account. In this example, if the husband cannot draw on the account until he is 55 years old, then the wife must wait until the husband is 55 years old to take her own share. His eligibility criteria applies to her—and it is his age and years of service that count, not hers.
If retirement monies are in an IRA (individual retirement account), a judgment of divorce with specific terms can be used to distribute the IRA.
In Michigan, you can tape record any conversation in which you are participating without the other person’s knowledge or consent.
You cannot personally follow a person. That is stalking. A licensed private investigator, however, can keep someone under surveillance.
The Michigan Legislature recently made this a felony. There are some exceptions in the statute, and you should consult an attorney about this.
A PPO is a personal protection order that protects a person against domestic violence or stalking.
There are forms available through Michigan courts to petition for a PPO. You fill out the form and file it with the court. If the allegations are serious enough, the court will enter a PPO immediately and send a copy to the Sheriff’s Dept. so that the police will know the PPO is in effect. The person against whom you obtained the PPO has 14 days to contest it.
The court will frown on you more if you need mental health services and refuse to accept them. In today’s world, receiving therapy is commonplace. See resources on our web site for a list of resources in the Ann Arbor area. You can always ask your attorney or your primary care provider (i.e., doctor) for a list of therapists in the area. If your insurance company requires you to go to someone on their list, then ask your attorney or doctor to review that list.
The court will not frown on you if you have an addiction; however, if you are in denial or refuse to enter a recovery program, that could have serious consequences. There is a list of resources on our website.
Anger issues concern the court. If you have problems in your relationships (e.g., at work, at home, and with your family of origin), you may have an anger management problem. If you go to the website for Catholic Social Services in Washtenaw County you will find a tab at the top for “counseling,” and under that tab, you will find “alternatives for domestic aggression” (ADA). Catholic Social Services of Washtenaw County has a questionnaire on its site that will help you determine whether you would benefit from their ADA program. You do not have to be Catholic to enroll in this program.
You probably have an anger management problem if that is something other people are talking to you about; if you have put a hole in a wall out of anger; if your driving is affected by your feelings about other drivers; if you throw things when you are mad; and if you tend to scream and swear when you are upset.
There is physical custody and legal custody.
Physical custody involves where the children live and what the parenting plan (or visitation schedule) is. If parties have similar amounts of time with the children, they have “shared physical custody,” even if it is not exactly 50/50. If one party has significantly more time with the children than the other parent, that parent has “primary physical custody” or “primary physical possession” of the children.
There is a trend towards not characterizing a parenting plan as “primary” physical custody since that may make the other parent feel marginalized. In many judgments, the parenting schedule is defined, but it is not “characterized.”
Legal custody is the right to participate in major decisions affecting the children, such as whether or not to have surgery, whether or not to attend a private school, whether or not to get therapy or counseling or an abortion. Legal custody usually involves issues regarding third parties such as the doctor, the teacher, or the therapist. The court must actually use the words “sole” legal custody or “joint” legal custody.
Yes. The courts can award what is called “split custody,” which means that one or more of the children live with one parent, and one or more of the children live with the other parent. In these cases a typical arrangement would be to have the children with their respective custodial parents during the week, and on the first and third weekend all children would be with one parent, while the second and fourth weekend all children would be with the other parent. This allows for the siblings to spend time together.
Split custody may be a solution in some or all of the following situations:
a. neither parent has the ability to care for all of the children at once;
b. there are problems between one or more of the children and a particular parent;
c. a child has special needs, and that requires a substantial amount of time and energy;
d. there are problems between some of the children; and/or
e. one of the children is involved in an activity that requires a substantial amount of time and energy (such as some athletic, musical, or other endeavor).
Split custody is very rare.
Joint legal custody usually means that the parents must:
Joint legal custody would normally entitle each party to receive timely copies of the child’s report cards and current school photographs.
It would entitle parties to be informed of parent/teacher conferences and activities (including sports) and/or school programs to which the children and parents are invited to attend.
Note: MCLA 722.30 provides as follows:
Notwithstanding any other provision of law, a parent shall not be denied access to records or information concerning his or her child because the parent is not the child's custodial parent, unless the parent is prohibited form having access to the records or information by a protective order. As used in this section, "records or information" includes, but is not limited to, medical, dental, and school records, day care providers records, and notification of meetings regarding the child's education.
Accordingly, a parent does not need to have joint or sole legal custody to have access to school and health records.
Yes. Michigan has a Child Custody Act that contains a list of best interest factors. This is used to decide custody where people have never been married to one another. If people have been married, then there is a divorce statute that includes provisions for property distribution and alimony. Interestingly, the divorce statute refers people back to the Child Custody Act for the list of best interest factors, so the issues are the same in custody matters whether the parents were ever married or not.
Michigan courts apply what is known as the “best interests test.” It has the following 12 factors:
There are many ways that legal custody is decided in Michigan. First, a party requests what he or she wants in the complaint for divorce or the answer to that complaint.
If legal custody is disputed, or physical custody is disputed, the court usually refers the case to the Friend of the Court.
The Friend of the Court meets with the parties individually or jointly and may interview the child(ren) if he/she/they are old enough (generally 6-7 years old or older). The Friend of the Court evaluator may also talk to teachers, friends, family members, and other parties in the course of the investigation as well as reviewing report cards and other documents that are either requested or supplied by the parties themselves. Before the interview, the parties are given forms to complete which contain information that is necessary.
After reviewing the information, the Friend of the Court evaluator issues a recommendation. If both parents accept the recommendation, then the court can consider entering an interim order which converts the recommendation into an interim order of the court. If one or both parties reject the recommendation, then the court holds a hearing to determine the next step. At the hearing, the court could adopt the recommendation if it is consistent with the status quo or hold an evidentiary hearing to decide what the legal and physical custody should be during the pendency of the case. The court could also decide to send the case to a Friend of the Court “referee” for a hearing. The referee is an attorney employed by the Friend of the Court to preside at these hearings, which take place in a conference room of the Friend of the Court.
At a referee hearing, the parties are present as well as their attorneys. Witnesses can be called, but they are asked to remain in the hallway until it is time for them to testify.
After the referee hearing, the Friend of the Court Referee issues his/her recommendation, and the parties have 21 days to accept or reject that recommendation. If it is accepted, it may be time for the parties to agree to a judgment of divorce which includes the terms of the recommendation. If it is rejected, then the court will review the pleadings, transcript from the referee hearing or tapes of the hearing, and exhibits to determine whether the referee’s decision should be adopted by the Court. If there is any evidence that could not be presented at the referee hearing (e.g., evidence of a new source of income or evidence the referee would not consider), then the judge could hold a further hearing in the courtroom.
No. Actually, the court now has the power to order people into mediation. Mediation takes place in a conference room (either at one of the attorney’s offices, the mediator’s office, or another location—but usually not the courthouse). A trained mediator presides and attempts to help the parties reach a settlement on one or more of the issues in the case. If the parties cannot reach a settlement, then the matter proceeds to trial.
Yes. Parties often reach a settlement themselves or with the help of their attorneys. Less than 10% of divorce or custody cases ever go to trial.
As an aside, there are official training programs for mediators. A person does not need to be an attorney to become a mediator; however, a mediator has to have taken the official training program or get an exemption from that requirement to appear on a court list of available mediators.
It is not “illegal” for someone who is not a mediator and who did not have “official training” to help a couple resolve their differences. Sometimes this is a friend or family member. Sometimes this is a member of the clergy or a marriage counselor. The court is supportive of any respectful and effective means of resolving issues.
Michigan statutes provide as follows:
The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.
During the initial divorce or custody proceedings, the court uses a “preponderance of the evidence” standard in determining who will prevail. This is something like 51% of the evidence in favor of the party seeking custody. Before a court will consider changing custody, a party must allege and prove either that there is “proper cause” for a change or that there is a “change in circumstances,” meaning something more than a minimal or insignificant change.
Then, if a party meets the threshold for changing custody by showing a change in circumstances or proper cause, that party must meet a higher burden or proof known as “clear and convincing.” This is more like 75% of the factors favoring the party seeking custody. In a nutshell, it is a big mistake to settle for one form of custody believing you can just wait for a while and then petition for a change without many of the facts also changing.
The Legislature has concluded that stability for children is an important goal. As a result, it is very hard to change custody once it has been established.
This is considered by the same people who consider custody, that is, the Friend of the Court, a mediator, or the judge. The same best interest factors are used as are used to determine custody. Hopefully, the parties “decide” these issues in the end. The FOC and the FOC referees can only make “recommendations.” It takes the judge to “decide” an issue if the parties cannot and if the parties (or one of them) rejects a recommendation.
There is no typical parenting plan. Decades ago, the mothers of young children were generally awarded custody under what was called the “tender years doctrine.” That doctrine assumed that young children should live primarily with their mothers. The tender years doctrine has been repealed, and now fathers of young children can be awarded custody.
When the “tender years” doctrine was in effect and for many years afterward, fathers often had visitation every other weekend from Friday to Sunday. These days, every other weekend often includes a pick-up from school instead of after dinner and a return to school on Monday morning. That provides three benefits:
Many parents also have a mid-week visit, which might include an overnight, and liberal telephone contact.
When parenting time is shared, there are many ways to divide the time, including:
Parties can design their own parenting plan. Often, extracurricular events and work schedules will affect the plan they choose.
The Friend of the Court generally uses a standard holiday plan which can change but is likely to look like this:
MOTHER’S HOLIDAY SCHEDULE
In even numbered years, the mother will have the following holidays:
In odd numbered years, the mother will have the following holidays:
FATHER’S HOLIDAY SCHEDULE
In even numbered years, the father will have the following days:
In odd numbered years, the father will have the following holidays:
|Easter||9:00 am until 7:00 pm|
|Memorial Day||9:00 am until 7:00 pm|
|Fourth of July||9:00 am until 7:00 pm|
|Labor Day||9:00 am until 7:00 pm|
|Thanksgiving||9:00 am until 7:00 pm|
|Christmas Eve||December 24 from noon until Christmas day noon|
|Christmas Day||December 25 from noon until noon the next day|
|New Year’s Day||9:00 am until 7:00 pm|
|Child’s birthday||For a minimum of three hours|
|Mother’s Day||Each year the mother will have Mother’s Day
from 9:00 am until 7:00 pm
|Father’s Day||Each year the father will have Father’s Day
from 9:00 am until 7:00 pm
The FOC schedule often considers holidays to be “one day” holidays. Another approach is to have Memorial Day, July 4th, and Labor Day be three day weekends which would then alternate. Mother’s Day and Father’s Day could be whole weekends. -- Religious holidays can be added to the schedule if they are important to a family.
Long breaks can be alternated as a whole (so that one of the parents could take the children to Florida, for example) or they can be split. There is much flexibility with regard to holiday parenting time.
Vacations are a separate subject. When children are young, two week vacations are normally “non-consecutive.” As children get older, they can tolerate being away from one of the parents for two weeks at a time. Usually, parents will be expected to exchange proposed vacation schedules by April or May. If those schedules conflict, a judgment can provide that one parent gets his/her wish in even-numbered years, and the other parent gets his/her wish in odd-numbered years.
Holiday and vacation time generally trumps and supersedes “regular parenting time.”
The Friend of the Court, or the court itself, will require the parties to produce tax returns or verified statements of income. If parties are self-employed, then the court will decide what expenses are justified. If parties are not employed at all, the court will decide if they have “unexercised ability to earn” and then perhaps “impute” the income they could, in fact, earn. Once income is known, then the Child Support Guidelines (a statewide, mandatory computer formula) is applied.
The formula is based on incomes, the number of children, and the number of overnights primarily. The formula takes into account children from another relationship or marriage that a parent is also supporting as well as mandatory union dues and other fixed costs.
There are a few times that a court will actually deviate from the formula, but not often.
Child support is owed until a child turns 18 years old or graduates from high school, but in no event beyond the age of 19-1/2 years old. If the child remains in high school after he/she turns 18, that child must have a reasonable chance of graduating from high school.
The court cannot order parents to pay for college or pay "post-majority" support. If parties agree to this, however, the court can enforce this agreement.
It used to be that you paid the local Friend of the Court; however, Michigan now requires people to pay through offices in Lansing. Because support is now collected at a statewide level, the State can distribute payments to numerous payees if a payor has a child in more than one county or subject to more than one court proceeding. If John Doe has 3 children to whom he owes $200/month each but he only makes a $300 payment instead of a $600 payment, then the court will distribute to each mother $100 of the $300 received. This is to avoid Mr. Doe’s attempt to pay more support to one of his children than another. Also, the state now has the ability to enforce child support orders by suspending drivers license's and professional licenses and by putting a hold on bank accounts in which a payor has an interest (whether disclosed or not).
In most cases where a payor is employed, there is an “order of income withholding” entered by the court and sent to the employer. This order requires the employer to withhold the child support that has been ordered from that parent’s paycheck. Parties can “opt out” of having the FOC collect the child support, and they can agree to automatic withdrawals and deposits from private bank accounts. In today’s world, most court-ordered child support is paid through orders of income withholding. That has made it less likely that the court will have to “enforce” a child support order—but this, of course, depends on continued employment.
Child support is always modifiable. The FOC is usually willing to consider a motion to modify support every 2-3 years. Both child and spousal support can be adjusted periodically (assuming spousal support was not “non-modifiable). The party seeking modification must file a motion to modify support, and then the modification can only be retroactive to the date of that petition and not before (absent narrow circumstances like fraud in stating income).
There are ways to contain that cost of a divorce, including the following: