Anatomy of a Divorce
Every divorce case is unique.
There are no two cases that are the same. Each family has separate and unique issues that confront them. However, every divorce action must pass through a framework that has been defined by the courts. Browse below for descriptions of the required elements of a divorce:
- 1. Filing the Complaint for Divorce
A divorce action is a type of lawsuit. Therefore, like all lawsuits, one party is required to file a “Summons and Complaint” to get the case started. The Complaint for Divorce will describe basic facts such as the date of marriage, age of children, and cities that the parties reside in. The Complaint will also alert the other side as to whether there will be a claim for child support and spousal support. In most cases, a Complaint for Divorce is a relatively benign document that will not contain nasty allegations. Your Michigan family law attorney should be able to draft a Complaint for Divorce quite quickly. Even though every case is unique, Complaints for Divorce are relatively standardized documents. After the Complaint for Divorce is drafted, your family law attorney will file it in the county in which the parties reside.
- 2. Serving the Complaint for Divorce on the Other Party
When a Complaint for Divorce is filed, the case does not become “live” until the opposing party is “served with the Complaint.” There are many ways that a party can be served with the Complaint for Divorce. The most well-known way is to hire an individual known as a “process server” to come and physically hand the Complaint to the other party. Such a method is frequently depicted in movies or on television. However, there are other less dramatic ways to serve the other party with a Complaint for Divorce. Oftentimes, the filing party can simply tell the receiving party that they need to contact the filing attorney to take possession of the Complaint. People are often surprised that, despite hard feelings, the receiving party is frequently amenable to receiving a Complaint in such a manner. Another method of serving a Complaint is attorney-to-attorney. Here, the filing party will ask the receiving party for the name of their attorney. Then, the filing attorney will contact the receiving attorney and make arrangements to serve the Complaint on the attorney on behalf of their client. Again, despite hard feelings, it is not at all uncommon for service of process to be achieved in this manner.
- 3. The Receiving Party Answers the Complaint
The Complaint for Divorce makes numbered statements that are called “allegations.” The word “allegation” sounds accusatory, but in the context of a divorce Complaint, allegations are not. In any event, the receiving party will then be required to answer the allegations of the Complaint for Divorce in the same numbered manner. For instance, the Complaint for Divorce will say, “The parties were married on February 1, 1995.” That statement is an allegation. The receiving party will answer that allegation by stating, “Admitted as true.” Because both parties have now agreed that February 1, 1995 was the date of marriage, the court now knows that that fact is not in dispute. There are time limits on answering the Complaint for Divorce. In most cases, the Complaint needs to be answered within 21 days. If the receiving party fails to answer the Complaint within 21 days, the filing party could then seek a “Default Judgment of Divorce.” Obviously, the receiving party wants to avoid such a declaration.
- 4. Discovering Facts Pertinent to Your Divorce
After the Complaint for Divorce has been filed and the receiving party has answered the Complaint, the divorce enters a period of time known as “Discovery.” What this means is that each party has the right to “discover” any and all facts that may affect their divorce. For instance, one party may have had a bank account for many years that they had kept secret from the other party. During Discovery, the party with the secret bank account must turn over all information regarding that account to the other party if requested to do so. Failure to turn over such information could cause the party with the secret bank account to find themselves in a great deal of trouble with the court. In the most extreme examples, a court could even jail one party for failing to turn over “discoverable” information to the other party.
Your family law attorney can serve a questionnaire upon your spouse. Such questionnaires are referred to as “Interrogatories.” Interrogatories are a series of questions that your spouse must answer. Your spouse may not like the questions, but they must answer them. Again, in the most extreme examples, failure to answer Interrogatories can cause a party to find themselves in a great deal of trouble with the court.
Attorneys also have the power of Subpoena. A Subpoena is a document that your attorney can serve upon any non-party demanding information. For instance, in the case of the secret bank account described above, you may not trust your spouse to provide you with truthful information. Therefore, you have the right to serve a Subpoena directly on the bank itself, demanding a full accounting of the secret bank account. A Subpoena is a type of court Order. The bank has no choice, and they must comply with the court Order for information.
Finally, your family law attorney has the right to take the Deposition of your spouse or other pertinent parties. A Deposition is a type of court hearing that, strangely enough, takes place outside of the court. Depositions are usually held in one of the attorneys’ offices. During a Deposition, a court reporter is brought in and the witness is placed under oath. That party must then truthfully answer any and all questions that are posed to them by the other party’s attorney. The questioning attorney will usually have specific documents that they want to question the deposed party about. For instance, in the case of the secret bank account, the questioning attorney may now have Subpoenaed records in their possession and will want the deposed party to answer questions about such bank records. Depositions tend to be relatively tense situations.
- 5. Status and Early Intervention Conferences
Obviously, your case is not the only divorce case that your family law judge is presiding over. In fact, your judge will have hundreds of cases that she is currently presiding over. Each case is at a different stage of the process. Therefore, your family law judge has to stay on top of her case load to make sure that each and every case is progressing forward. Your judge will order you to attend Early Intervention Conferences and Status Conferences so that she can remain apprised of the progress (or non-progress) of your case.
An Early Intervention Conference (EIC) is a tool that the court uses for cases that involve minor children. The EIC is a court hearing that will take place before a referee at the Friend of the Court. During the EIC, the Friend of the Court is informed of any specific issues that may affect the well-being of the minor children. If it appears that there will be a protracted disagreement regarding custody, the Friend of the Court referee will be advised of that fact at the time of the EIC. EICs are not necessarily mandatory but virtually every court will use such a hearing. It’s merely a tool to keep the court informed of the progress of your case. Another tool that the court employs is Status Conferences. These are periodic hearings in which the parties are required to attend and inform the court of the progress of a case. The court can oftentimes issue specific Orders at the time of a Status Conference. For instance, if the parties inform the judge that they are in stark disagreement as to the value of real estate, the judge could order the parties to employ valuation experts so that at the time of trial, the court can intelligently make decisions. Perhaps the parties have a privately-held business that is of an indeterminate value. Again, the court can order the parties to engage experts to provide valuations. If custody continues to be an area of disagreement, the court can order the parties to appear before counselors or mental health professionals so that at the time of trial, the court can be well-informed.
- 6. Mediation
Mediation is, in most cases, a voluntary process in which the parties appear before a mediator in an attempt to informally resolve their disagreements. A mediation session will usually take place at the mediator’s office. The mediator will usually go back and forth between the parties and attempt to get each party to move towards the center. If the mediation is successful, the parties will then enter into a Settlement Agreement. However, it is important to remember that mediation is non-binding. Therefore, parties could appear in a mediation session and can resolve 97% of their issues of disagreement, but cannot bridge the final 3%. As such, an agreement has not been reached. The parties cannot then say to the judge, “Well, this is the 97% that we did agree on.” What takes place at the mediation session is forever private and non-binding, and cannot be presented to the court unless a 100% full settlement is reached.
- 7. Settlement Conferences
When a divorce process is in its second half, the court will oftentimes convene Settlement Conferences. Here, the court will attempt to insert themselves into the particulars of a case in order to bring about a settlement. It is not unusual to see a judge employ some of the same tactics that a mediator employs at the time of a Settlement Conference. However, a judge cannot make parties settle. If a settlement cannot be reached, the judge will likely schedule a trial. Trials are a statistically rare occurrence. As a general rule, less than one out of fifty cases (2%) actually goes to trial.
- 8. Divorce Trials
Many parties will frequently say, “You don’t know my spouse. They will never agree to a settlement. I know we are going to trial.” While the party may believe this initial statement as stated above, trials are a rarity. During a trial, a judge will make decisions about issues that remain in dispute. In many instances, by the time of trial, some areas of dispute may have been resolved. For instance, perhaps the parties are now in agreement on the value of a home, but remain in disagreement regarding custody arrangements. In such a situation, the parties would inform the judge of those areas in which there is an agreement and the remaining areas of disagreement. Obviously, the judge will then make a decision that is binding on the parties. Judges have very busy dockets. Therefore, it is not unusual for a trial to be broken up into many half-day segments. A three-day trial may well take five or six weeks to be conducted because the judge is working your case in one half-day at a time.
How Divorce Cases Work - Additional Reading:
Basic Legal Steps
Common steps in all Michigan divorce cases. Every divorce is separate and unique and needs to be treated as such. However, there are many common rules and procedures that every divorce proceeding must follow. Here are some of those common steps: Summons and Complaint: The Summons and Complaint is the very first document that gets […]
Alternatives to Divorce
What can I do besides getting divorced? An individual who is considering getting divorced can follow several other options: Marriage Counseling: A qualified marriage counselor can help the parties discover what the nature of their conflict is. In fact, there is usually more than one factor that is troubling a marriage. Finding a qualified marriage […]
Chaos among parties in Divorce. In Michigan, there are minimum periods of time which must pass before a judge can grant a final Judgment of Divorce. These periods are as follows: Divorces in which there are no minor children cannot be granted in less than 60 days. Divorces in which there are minor children cannot be granted […]
Arbitration and Michigan divorce. In the last 50 years, the court systems throughout the United States have seen a positive explosion of what is referred to as “Alternative Dispute Resolution” (ADR). Parties frequently wish to participate in ADR because it is oftentimes speedier, less expensive, and less emotionally taxing than a trial. One form of […]
Mediation and facilitation. During your divorce proceeding, you and your family law attorney will usually stake out a position regarding settlement. Your spouse and their attorney will also develop their own position regarding settlement. In most cases, after the attorneys have outlined their positions, they will communicate with each other whether in person or via […]
If you are considering divorce or have been served divorce papers, call me. I've helped hundreds of people protect their family and their assets and I can help you. For a FREE Consultation Call (248) 921-7164